Lawrence Russell v. City of Detroit
Lawrence Russell v. City of Detroit
Opinion
In this action related to an injury arising from a purportedly defective city street, defendant, the city of Detroit (the City) sought summary disposition pursuant to MCR 2.116(C)(7) on the ground that plaintiff, Lawrence Russell, had failed to provide notice in compliance with the government tort liability Act (GTLA), MCL 691.1401 et seq . The trial court denied the City's motion, and the City now appeals as of right. Because plaintiff provided notice to the City as required by MCL 691.1404(1), we affirm.
According to plaintiff's complaint, on July 20, 2014, he fractured his leg after he drove his motorcycle through a pothole, lost control, and then crashed. In October 2014, plaintiff's attorney sent the City notice of plaintiff's injury and the defect in the roadway. On March 6, 2015, plaintiff filed his complaint in this case. Thereafter, the City moved for summary disposition, asserting that the complaint should be dismissed because plaintiff had failed to provide notice to the City as required by MCL 691.1404(1). Specifically, the City argued that plaintiff's notice was deficient for purposes of MCL 691.1401(1) because (1) the notice failed to specify the exact location and exact nature of the defect, and (2) the notice was served by plaintiff's *510 attorney rather than by plaintiff. The trial court rejected these arguments. The City now appeals as of right.
On appeal, the City argues that the trial court erred by denying its motion for summary disposition under MCR 2.116(C)(7) because plaintiff failed to provide notice as required by MCL 691.1404(1). In particular, as in the trial court, the City argues that plaintiff failed to provide notice of the exact location and nature of the defect. Additionally, the City contends that plaintiff was required to personally serve notice on the City, meaning that service by plaintiff's attorney was insufficient to comply with MCL 691.1404(1).
I. STANDARDS OF REVIEW
"This Court reviews motions for summary disposition under MCR 2.116(C)(7) de novo."
Trentadue v. Buckler Automatic Lawn Sprinkler Co.
,
II. EXACT LOCATION AND NATURE OF THE DEFECT
The City first argues that the location and nature of the defect were not adequately described in the notice provided by plaintiff. The City contends that plaintiff merely provided the location of an intersection, which encompasses a broad area and was not sufficient to identify the "exact location" where plaintiff's injury occurred. With regard to the nature of the defect, the City maintains that plaintiff also failed to sufficiently describe the nature of the alleged defect.
Under the GTLA, "governmental agencies are immune from tort liability when engaged in a governmental function."
Nawrocki v. Macomb Co. Rd. Comm.
,
However, as a prerequisite to recovering damages under the highway exception, the injured person must serve notice on the governmental agency pursuant to MCL 691.1404(1), which states:
As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice *511 shall 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.
" MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect."
Rowland
,
Under the plain language of MCL 691.1404(1), "a claimant must provide, within 120 days from the time of injury, notice to the governmental agency that (1) specifies the exact location and nature of the defect, (2) identifies the injuries sustained, and (3) provides the names of any known witnesses."
Burise v. Pontiac
,
Nevertheless, the injured person must give notice of "the exact location;" and the provision of incorrect information, such as an incorrect address, will not be excused if the error is not corrected within the notice period.
Jakupovic v. City of Hamtramck
,
In this case, the notice that plaintiff's counsel sent to the City contained the following information regarding the location and the nature of the defect:
Location of Defect: Intersection of Selden St. and Aretha Street, Detroit Michigan. See attached photos.
Nature of the Defect: A large pothole, adjacent to a manhole cover in the middle of the street.
By reading the section labeled "Location of Defect" in isolation, the City contends that, as in
Smith
and
Dempsey
, plaintiff's description of the location is insufficient because it refers generally to an intersection without the details necessary to locate the defect. However, in considering the notice, we consider all the facts stated therein and construe the location in connection with the description of the defect. See
Rule
,
When these sections of plaintiff's notice are read together, it is clear that plaintiff's identification of the location was sufficient. Plaintiff did not just refer to an intersection. Instead, after identifying a particular intersection in Detroit, plaintiff then more specifically directed the City's attention to "a manhole cover in the middle of the street," adjacent to which was a "large pothole." The directions to the "middle of the street" and the use of the manhole cover as a landmark, when coupled with the identification of the intersection, were sufficient to enable the City to find the location of the pothole in question from the notice provided.
1
Stated differently, reading the notice as a whole, plaintiff's notice regarding the location of the defect was "understandable and sufficient to bring the important facts to the governmental entity's attention."
Plunkett
,
With regard to the nature of the defect, plaintiff described a "large pothole, adjacent to a manhole cover." In disputing the adequacy of this description, the City cites an unpublished case in which the plaintiff's description of the defect was found inadequate because the description provided in the notice was "significantly different" than the true nature of the defect insofar as the plaintiff identified the defect as "too much crack filler" when the defect actually consisted of "rutting" in the road.
Karwacki v. Dep't of Transp.
, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2013 (Docket No. 308772), pp. 5-6,
III. SERVICE BY THE INJURED PERSON
Next, the City argues that plaintiff violated MCL 691.1404(1) by having his *513 attorney mail notice to the City, rather than plaintiff sending the written notice himself. In particular, the City notes that MCL 691.1404(1) states that "the injured person ... shall serve a notice on the governmental agency...." In comparison, under MCL 691.1404(3), if an injured person is under the age of 18 years, "notice may be filed by a parent, attorney, next friend or legally appointed guardian." The City asserts that, because MCL 691.1404(1) does not specifically allow for service through an attorney, an injured person over 18 must personally serve notice.
Resolution of this issue requires statutory interpretation. When engaging in statutory interpretation, "our goal is to give effect to the intent of the Legislature by focusing on the statute's plain language."
Speicher v. Columbia Twp. Bd. of Trustees
,
Relevant to the City's argument, MCL 691.1404, states, in part:
(1) As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall 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.
(2) The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding. In case of the state, such notice shall be filed in triplicate with the clerk of the court of claims. ...
(3) If the injured person is under the age of 18 years at the time the injury occurred, he shall serve the notice required by subsection (1) not more than 180 days from the time the injury occurred, which notice may be filed by a parent, attorney, next friend or legally appointed guardian. If the injured person is physically or mentally incapable of giving notice, he shall serve the notice required by subsection (1) not more than 180 days after the termination of the disability.
Clearly, MCL 691.1404 sets forth various requirements for providing compliant notice to the governmental agency.
The statute specifies who must serve the notice ("the injured person"), on whom the notice must be served ("any individual ... who may lawfully be served with civil process directed against the ... governmental agency"), what information the notice must contain ("the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant"), and the manner in which the notice must be served ("either personally, or by certified mail, return receipt requested"). Although the statute does not explicitly so provide, it patently implies that these elements of the required notice must be in writing. [
*514 Ward v. Mich. State Univ. (On Remand) ,287 Mich.App. 76 , 81,782 N.W.2d 514 (2010).] 2
Moreover, the use of the term "shall" in MCL 691.1404 makes plain that this notice requirement is mandatory. See
In re Duke Estate
,
Contrary to the City's argument, we do not read the statute as requiring an injured person to personally send the notice by certified mail or to appear in person to personally serve the notice. Rather, we are persuaded that an injured person can serve a governmental agency under MCL 691.1404 )1) by law by using an agent, such as attorney. To begin with, our statutes and court rules are replete with provisions similar to the language in MCL 691.1404(1) insofar as they require an individual to "serve" documents.
3
Yet, it has never been an expectation in this state that the service would be personally carried out by the individual identified in the court rule or the statute. To the contrary, service is often done by someone else, such as a process server.
Nuculovic v. Hill
,
Moreover, the City's argument ignores established agency principles. "Agents have the implied power to carry out all acts necessary in executing [the principal's] expressly conferred authority."
Slocum v. Littlefield Pub Sch. Bd. of Ed.
,
When the notice is sent by an attorney or agent acting at the injured person's behest, to comply with MCL 691.1404(1), that information should be contained in the notice itself. That is, MCL 691.1404(1) plainly states that an "injured person" shall serve notice. To satisfy this provision, the notice should identify the injured person and convey the fact that the notice is being given on the injured person's behalf. For example, in this case, the notice stated:
Please be advised that I am providing you notice on behalf of MR. LAWRENCE RUSSEL, of an injury caused by a defect in the highway that rendered the travelled portion of the roadway not reasonably safe and convenient for public travel. In accordance with [the] statute, the following information identifies the location and nature of the defect, the injury sustained and the names of witnesses known to Mr. Russell .... [Emphasis added.]
This language made clear that plaintiff was the injured person and that, as the injured person in this case, he was providing notice *516 to the City through his attorney. This service of notice through plaintiff's attorney was sufficient to satisfy MCL 691.1404(1).
In contrast to this conclusion, the City emphasizes that MCL 691.1404(3) contains language allowing notice to be "filed by a parent, attorney, next friend or legally appointed guardian" if the injured person is under 18 years of age. Because no reference to an "attorney" appears in MCL 691.1404(1), the City asserts an adult injured person cannot serve notice via an attorney. "Generally, when language is included in one section of a statute but omitted from another section, it is presumed that the drafters acted intentionally and purposely in their inclusion or exclusion."
Book-Gilbert v. Greenleaf
,
Finally, the City also argues that personal service by the injured person should be required in light of the Michigan Supreme Court's decision in
Fairley v. Dep't of Corrections
,
(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths . [Emphasis added.]
*517
Relevant to this provision, in
Fairley
, the plaintiff did not sign or verify the notice; rather, the plaintiff's attorney signed the document.
Fairley
, 497 Mich. at 294,
Fairley
is inapplicable to the facts of this case. Quite simply,
Fairley
involved a different statute that contains different notice language and different requirements. The statute at issue in
Fairley
includes very specific activities that have to be completed "by the claimant." MCL 600.6431(1). Specifically, the claimant is required to sign and verify the notice before an officer who is authorized to administer oaths.
Id
. In this context, "verification" by the claimant involves "[a] formal declaration made in the presence of an authorized officer, such as a notary public ... whereby one swears to the truth of the statements in the document."
Black's Law Dictionary
(10th ed.). See also
Fairley
, 497 Mich. at 299,
In contrast, MCL 691.1404(1) does not require an injured person to sign or verify the notice before an officer who is authorized to administer oaths. 6 Instead, all that is required by MCL 691.1404(1) is that the injured person serves the notice on the governmental agency. MCL 691.1404(2) contains more specific instructions regarding how service may be accomplished; but it does not state that the injured person must personally serve the notice upon any individual who may lawfully be served, "either personally, or by certified mail, return receipt requested ...." Instead, considering MCL 691.1404 as a whole, the injured person is given broad responsibility to serve notice; and, as discussed, this directive to serve the governmental agency is fully satisfied when an injured person engages an agent to hand deliver the notice or to mail it via certified mail, return receipt requested.
In sum, under the plain language of the statute, the injured person must serve the governmental agency. But this service requirement does not require the injured person to physically appear in the governmental office or to personally go to the post office to mail a certified letter. Instead, the injured person may serve the governmental agency by arranging for service *518 by an attorney or other agent. Because plaintiff's attorney served notice on plaintiff's behalf, plaintiff complied with the MCL 691.1404(1) notice requirement.
Affirmed.
Shapiro, P.J., and Hoekstra and M.J. Kelly, JJ., concurred.
The lower court record also contains photographs of the location. The City contends that, although plaintiff's written notice refers to attached photographs, plaintiff failed to actually include these photographs with his notice. In the trial court, the City supported this factual assertion with an affidavit from an employee in the City's law office who is responsible for opening mail and who averred that no photographs were attached to plaintiff's notice. The City also contends that, even if the photographs are considered, they simply show a general area and thus they do not aid plaintiff's description of the location of the defect. We need not reach these issues. Plaintiff had no obligation to provide photographs. And, whether or not the City received plaintiff's photos is immaterial because, as discussed, plaintiff's written description of the location-with or without photos-was sufficient to comply with MCL 691.1404(1).
Ward involved MCL 691.1406, the notice provision applicable to injury arising from a dangerous and defective condition in a public building. However, the language in MCL 691.1406 mirrors the pertinent language in MCL 691.1404.
See, e.g., MCR 2.107 ("[T]he plaintiff shall serve upon the opposing parties the preprinted caption labels ...."); MCR 2.307(A)(2) ("A party desiring to take a deposition on written questions shall serve them on every other party with a notice ...."); MCR 2.622(B)(4) ("The party filing an objection [to the appointment of a receiver] must serve it on all parties ...."); MCR 3.101(F)(1) ("The plaintiff shall serve the writ of garnishment ...."); MCR 3.210(B)(4)(a) ("A party moving for default judgment must schedule a hearing and serve the motion, notice of hearing, and a copy of the proposed judgment upon the defaulted party ...."); MCR 6.507(B) ("Whenever a party submits items to expand the record, the party shall serve copies of the items to the opposing party."); MCR 7.121(C)(2)(d) ("The appellant shall serve the claim of appeal on all parties."); MCL 14.254(c) ("[I]f such will creates or purports to create a charitable trust, the petitioner shall serve notice upon the attorney general, charitable trust division ...."); MCL 400.610a(2) ("At the time of filing the complaint, the person shall serve a copy of the complaint on the attorney general ...."); MCL 445.814(2) ("The attorney general shall serve notice upon the defendant at least 48 hours before the filing of the action."); MCL 600.4061(1) ("A plaintiff shall serve garnishment process issued from a court in Michigan against the state of Michigan upon the state treasurer ...."); MCL 750.50(3) ("The prosecuting attorney shall serve a true copy of the summons and complaint upon the defendant.").
See also
Thomas v. City of Flint
, unpublished opinion of the Court of Appeals, issued April 20, 2017 (Docket No. 331054), slip op. at 1,
Requiring the claimant in particular to sign and verify the notice serves to promote truthfulness and to deter "trumped-up" claims. See
Merrifield v. Vill. of Paw Paw
,
Indeed, the City's proposed service requirement under MCL 691.1404(1) would allow a plaintiff's attorney to draft and sign the notice, but it would then require the plaintiff to undertake the ministerial task of serving the document. We are not persuaded that such an absurd result is required by the statute's plain language.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.