Notice requirements for claims under the “highway exception” to governmental immunity are strictly enforced

03/02/2013

Michigan grants governmental agencies immunity from many forms of tort liability. One exception to governmental immunity, however, is the so-called “highway exception.” This exception, codified here by the Michigan Legislature, generally provides that a person injured on a public highway that was not kept in a state of reasonable repair may obtain damages from the responsible governmental agency. But a plaintiff must provide the statutorily-required notice before filing suit–and, as the Michigan Court of Appeals held in Colflesh v Village of Lexington, failure to strictly comply with these notice requirements can result in dismissal.

The plaintiff in Colflesh tripped and fell on an uneven sidewalk in front of a fudge shop in the Village of Lexington. To pursue a claim under the highway exception, she was required by Michigan law to provide the responsible governmental agency notice within 120 days. This notice had to “specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.”

Her initial notice merely stated that she fell on an uneven sidewalk in front of the fudge shop. But she supplemented that notice within the 120-day period by sending the Village of Lexington a letter stating:

[Plaintiff] suffered a broken left wrist, sprained right wrist, injuries to her left foot and left ankle, and injuries to both knees when she fell on an uneven sidewalk in front of 7296 Huron Avenue in downtown Lexington. [Plaintiff] is unable to return to her work for the foreseeable future due to her disabling wrist injuries.

There were people in the vicinity when [plaintiff] fell but she is not able to identify any witnesses who may have seen her fall at this time.

During discovery, the plaintiff testified that her daughter and two teenage grandsons were with her when she fell. Yet her notice stated that she was “not able to identify any witnesses who may have seen her fall[.]”

The Village of Lexington therefore argued that the plaintiff’s notice was statutorily deficient because it did not provide “the names of the witnesses known at the time by the claimant.” Although the trial court rejected this argument, the Court of Appeals reversed and remanded for dismissal. It held, in short, that courts are required to enforce the unambiguous notice requirements codified by the Michigan Legislature. Because the plaintiff knew that her family members had seen her fall and yet failed to provide notice of that fact within the statutory period, her claim was legally deficient.

The Court of Appeals also rejected the plaintiff’s argument that her family members were not really “witnesses” because they only saw her hit the ground but did not see her foot contact the uneven portion of the sidewalk. This interpretation, according to the panel, was a judicial gloss on the otherwise plain language of MCL 691.1404.

Colflesh therefore stands as an important reminder: Michigan courts will enforce statutory notice requirements as written, even if doing so results in an action’s dismissal.


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