ERIN LEECH V ANITA KRAMER
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STATE OF MICHIGAN
COURT OF APPEALS
ERIN LEECH,
UNPUBLISHED
October 11, 2005
Plaintiff-Appellee,
v
No. 253827
Kent Circuit Court
LC No. 03-006701-NI
ANITA KRAMER,
Defendant,
and
KENT COUNTY BOARD OF ROAD
COMMISSIONERS,
Defendant-Appellant.
Before: Saad, P.J., and Jansen and Markey, JJ.
PER CURIAM.
Defendant Kent County Board of Road Commissioners (“the Board”) appeals from the
order of the Kent Circuit Court denying its motion for summary disposition. We affirm. This
appeal is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiff was a passenger in a vehicle driven by defendant Anita Kramer when Kramer
allegedly lost control of her vehicle on a county road that the Board allegedly failed to maintain
in reasonable repair. Plaintiff claimed that the road had unrepaired ruts and grooves. Rain water
collected in the ruts and grooves causing Kramer to hydroplane over the water in the ruts and
grooves and crash. Plaintiff was injured and sued Kramer and the Board for negligence.
The Board moved for summary disposition arguing that plaintiff did not plead her claim
in avoidance of governmental immunity under the highway exception, MCL 691.1402, because
her claim was based on the presence of water on the surface of the road and not based on a defect
in the physical structure in the surface of the road bed, as required by Nawrocki v Macomb Co
Rd Comm’n, 463 Mich 143, 158; 615 NW2d 702 (2000). The Board also claimed, in reliance on
Haliw v Sterling Heights, 464 Mich 297; 627 NW2d 581 (2001), that plaintiff could not show
that any defect in the surface of road bed proximately caused her injuries because the accident
resulted from the natural accumulation of water on road and not from any rut or groove. We
disagree.
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Plaintiff did not base her claim solely on the natural accumulation of rain water on the
road surface. Rather, plaintiff alleged that the Board failed to maintain the road surface in
reasonably safe condition by allowing ruts and grooves to remain unrepaired for a significant
time. When the ruts and grooves filled with rain water, Kramer lost control of her vehicle when
it hydroplaned over them. Thus, plaintiff implicated the highway exception to governmental
immunity because she claimed that the physical structure of the surface of the road bed, i.e., the
ruts and the grooves constituted a defect in the road surface itself. Plaintiff also alleged
proximate cause because she claimed that the combination of the ruts and grooves, which were in
themselves hazardous defects in the road bed, and the accumulation of rain water in them is what
caused Kramer’s accident and injuries.
We believe the facts in this case are different than those in Haliw because here plaintiff
did allege that her accident was a result of the combination of the grain and a defect in the
roadway. Moreover, in its opinion, the trial court specifically concluded that this case differed
from Haliw because
The facts in this case are dramatic ruts in the roadway, ones that are noticeable by
the plaintiff, noticeable by the defendant driver of the motor vehicle, and there is
some rain, but I believe that the facts, taken in the light most favorable to the nonmoving party, as it is my duty to consider those facts, indicate that that condition,
standing alone, even without water, that condition standing alone, the ruts, could
have caused a - - it made the roadway unsafe for travel, and I believe there’s some
evidence of that based on the answer to Interrogatory No. 10. Clearly the
existence of rain on the roadway added to the problems, and it added to the
hydroplaning which eventually led to the - - led to the accident. But clearly the
ruts, the defect in the highway, were a proximate cause and were a defect in the
condition which would make it unsafe - - which could have made it unsafe for
public travel at all times.
The Board also argued that plaintiff’s action should have been dismissed because she did
not provide timely notice of her injury, as required by MCL 691.1404. The Board acknowledges
that our Supreme Court, in Hobbs v Dep’t of State Highways, 398 Mich 90; 247 NW2d 754
(1976) and Brown v Manistee Co Rd Comm’n, 452 Mich 354; 550 NW2d 215 (1996), requires
the showing of actual prejudice before an action may be dismissed on the basis of an untimely
notice. However, the Board maintains that there should be no actual prejudice requirement and
that plaintiff’s action should be dismissed because the plain language of the statute contains no
actual prejudice requirement. Moreover, the Board contends that the Supreme Court in Ross v
Consumers Power Co, 420 Mich 567, 618-19; 363 NW2d 641 (1984), undermined the rationale
used in Hobbs for the actual prejudice requirement and that, therefore, Ross silently overruled
Hobbs’ judicial creation of the actual prejudice requirement. Finally, the Board also argues that
the Court’s recent trends of relying on the plain language of a statute and narrowly construing
exceptions to governmental immunity favor overruling the actual prejudice requirement. We
disagree.
We note that the plain language of MCL 691.1404 does not contain an actual prejudice
requirement. However, we also note that controlling precedent from our Supreme Court requires
a showing of actual prejudice before dismissing an action on the basis of an untimely notice.
Therefore, we find that the trial court properly did not dismiss plaintiff’s action on this basis.
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Moreover, we are not persuaded by the Board’s argument that Ross silently overruled Hobbs,
especially because the Supreme Court had the opportunity in Brown, which was decided in 1996,
to do so, but did not. Therefore, this Court and the trial court are constrained under Hobbs and
Brown to require a showing of actual prejudice before dismissing an action on the basis of
untimely notice.
We affirm.
/s/ Kathleen Jansen
/s/ Jane E. Markey
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