KRISTINA FORCE V CITY OF OWOSSO
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STATE OF MICHIGAN
COURT OF APPEALS
KRISTINA FORCE and MATTHEW FORCE,
UNPUBLISHED
April 15, 2004
Plaintiffs-Appellees,
v
No. 245996
Shiawassee Circuit Court
LC No. 02-007569-NO
CITY OF OWOSSO,
Defendant-Appellant.
Before: O’Connell, P.J., and Jansen and Murray, JJ.
MURRAY, J. (concurring).
I concur in the majority opinion’s decision to reverse the trial court’s denial of defendant’s
motion for summary disposition based on the prejudice defendant would suffer if plaintiffs were
permitted to proceed despite their noncompliance with MCL 691.1404. Brown v Manistee Co Rd
Comm, 452 Mich 354; 550 NW2d 215 (1996); Hobbs v Dep’t of State Hwys, 398 Mich 90; 247
NW2d 754 (1976). However, as defendant has aptly argued, I respectfully believe that the Supreme
Court’s decision imposing a prejudice requirement in determining whether the notice provisions of
the governmental immunity statute apply has no basis under the statute or Constitution. Indeed, as
Justice Riley stated in her dissent in Brown, supra at 369-374, “the requirement of prejudice
engrafted upon the statutory notice provision by Hobbs[, supra],” has no basis within the plain
language of the statute. Id. at 369. There is no prejudice requirement provided by the Legislature in
this statute. To the contrary, the statutory language is plain, unequivocal, and simple. In order to
bring a claim under the highway exception to the governmental immunity statute, MCL 691.1402,
the Legislature has provided that a plaintiff must “within 120 days from the time the injury occurred
. . . serve a notice on the governmental agency of the occurrence of the injury and the defect.” MCL
691.1404. Because we are an intermediate appellate court, we must apply the prejudice standard of
Brown and Hobbs, which the majority has correctly done. However, for the reasons stated by Justice
Riley in her Brown dissent, I believe that the Court improperly added a prejudice requirement into
the statute where none exists. Once the statute has been constitutionally upheld under a rational
basis test, the statute must be enforced as written. Brown, supra at 370-372.1
/s/ Christopher M. Murray
1
Justice Boyle also concurred in Justice Riley’s dissent. Brown, supra at 374.
-1-
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