MICHELE BOTSFORD V CHARTER TWP OF CLINTON
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STATE OF MICHIGAN
COURT OF APPEALS
MICHELE BOTSFORD,
UNPUBLISHED
March 20, 2007
Plaintiff-Appellee,
v
No. 272513
Macomb Circuit Court
LC No. 05-004024-NO
CHARTER TOWNSHIP OF CLINTON,
Defendant-Appellant,
and
CHARTER TOWNSHIP OF CLINTON
BUILDING AUTHORITY,
Defendant.
Before: Markey, P.J., and Murphy and Kelly, JJ.
PER CURIAM.
Defendant Charter Township of Clinton (township) appeals as of right the trial court
order denying its motion for summary disposition pursuant to MCR 2.116(C)(7). Plaintiff alleged
that she was injured when she tripped and fell in a plaza or terrace area and that the fall was
caused by a gap between cement slabs or flags that caused an uneven grading of the walking
surface. This alleged walkway defect was located near the top of a stairway leading to the
entrance-exit of the 41-B District Court, which is housed in a public building under the control of
the township. Plaintiff claimed that governmental immunity did not insulate the township from
liability under the public building exception to governmental immunity, MCL 691.1406. The
trial court rejected the township’s argument that it was entitled to summary disposition on the
basis of governmental immunity because of, in part, plaintiff’s failure to strictly comply with the
pre-litigation notice provision found in MCL 691.1406. We affirm.
Plaintiff filed her action on October 11, 2005. In the complaint, plaintiff alleged that on
April 2, 2004, she tripped and fell on a defective cement section of walkway in the area of the
building’s outdoor stairway, thereby injuring herself, as she was proceeding to enter the
courthouse. Plaintiff maintained that there exists a series of cement steps that lead up to cement
slabs or flags that are traversed when accessing the building. She asserted that the cement steps
-1-
and slabs are physically attached to and abut the building, and they must be utilized for purposes
of ingress and egress. With respect to the alleged defect, plaintiff asserted:
17. That at the top of the steps there was a large gap between cement slabs
causing a bi-level grading of the walking surface.
18. That at all times pertinent hereto, the difference in elevation between the
cement slabs is a dangerous and/or defective condition.1
Before the litigation was commenced, plaintiff’s counsel prepared and sent a notice of
intent to file a claim pursuant to MCL 691.1406, which was addressed to the “Clerk of the Court,
41 B District Court, 40700 Romeo Plank Road, Clinton Twp., MI 48038-2951.” The cover letter
accompanying the notice is dated July 14, 2004, and the notice is stamped as being received on
July 20, 2004, by the “41B District Court, Clinton Twp. Div.” The notice provided in relevant
part:
Please be advised that on the above date [April 2, 2004], Michele Botsford
tripped and fell on the entrance stairs attached to and a part of the building known
as 41 B District Court . . . .
The nature of the defect is raised cement at the top of the stairs. Ms.
Botsford sustained injuries to her right hand, right middle finger, possible torn
ligaments and capsule and possible nerve damage.
There are no known witnesses at this time.
In a notice dated July 29, 2004, plaintiff’s counsel sent an identical notice to the one
described above, except that it was addressed to the “Clinton Township Building Authority, 41 B
District Court,” with the street address remaining unchanged. The document is stamped as being
received on July 30, 2004, by, as before, the “41B District Court, Clinton Twp. Div.”2
1
Plaintiff subsequently submitted an affidavit from an architectural expert who averred that the
height variation was 5/8 of an inch and constituted a defect because it created a trip point at the
top of the stairs in an area highly trafficked by pedestrians. This expert viewed the premises in
March of 2006, nearly two years after the accident. He further averred that the area of the defect
had been in a state of disrepair for many years, not months. The township submitted the affidavit
of an engineering expert who concluded that the deviation was slightly more than half an inch.
This affidavit was signed on May 1, 2006. The engineer opined that, because there had been two
freeze/thaw cycles since the accident two years earlier in April 2004, the true extent and amount
of the deviation at the time of the accident, if the alleged defect even existed then, could not be
determined. These affidavits will be discussed in more detail below.
2
In a fax from the township’s finance director to the township’s insurance agent, dated July 26,
2004, it provides, “Following is a claim related to a fall at the Civic Center Court entrance. I
have inspected the area in question and see no defective condition with the stairs or adjoining
concrete. Please forward . . . for settlement or other disposition.” The finance director testified
(continued…)
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The township filed a motion for summary disposition pursuant to MCR 2.116(C)(7),
arguing that plaintiff could not sustain and establish her claim under the public building
exception to governmental immunity because (1) the notice required by MCL 691.1406
regarding a defective condition, although submitted, was not in conformity with the statute nor
properly served on the township, resulting in prejudice to the township, (2) there was no
evidence from which one could infer that a defect actually existed at the time of the fall, (3)
plaintiff did not adequately identify the location of the incident by way of the documentary
evidence, and because (4) the documentary evidence failed to establish an exception to
governmental immunity. With respect to the specifics concerning the claimed defects in the
notice, we shall address those below in our analysis as the same arguments are presented to us
for resolution.
The focus of the hearing on the township’s motion for summary disposition was the
alleged defective notice. The trial court denied the township’s motion, finding that proper notice
was given and that, regardless, the township could not establish actual prejudice, assuming
deficient notice. The trial court did not specifically address issues other than those related to the
notice requirement contained in MCL 691.1406.
On appeal, the township contends that plaintiff failed to comply with the applicable
notice provision contained in MCL 691.1406 by failing to identify the exact location of the
claimed defect, by misidentifying the location of the occurrence as being on the stairs and not the
concrete patio at the top of the stairs, by failing to identify which one of the several staircases
abutting the building was being ascended at the time of the fall, by failing to identify whether
plaintiff was ascending the left, center, or right side of whatever staircase was being used, and by
furnishing notice to the district court as opposed to the correct entity, that being Clinton Charter
Township.3 Outside the context of the notice issue, the township maintains that plaintiff failed to
submit competent evidence establishing the existence of a defective condition at the time of
injury and failed to identify the location where the fall occurred.
This Court reviews de novo a trial court’s ruling on a motion for summary disposition
based on governmental immunity and brought pursuant to MCR 2.116(C)(7). Tarlea v Crabtree,
(…continued)
that personnel of the 41-B District Court gave him the first notice sent by plaintiff ’s counsel.
The finance director also received the second notice. He additionally testified that he looked
around the building in the area of the stairways and could find no defect. The finance director
indicated that the township’s building authority technically owns the building, but the township
leases it and is responsible for its upkeep. He further maintained that he has handled the
township’s insurance and lawsuits for over 26 years.
3
In plaintiff’s deposition, she testified that, at the time of the fall, she had proceeded up the
stairway in front of the court entrance; she could not recall whether she ascended the stairs by
walking straight up the middle of the stairway or to the left or right; she reached the top of the
stairs and took about two steps before tripping; her foot had hit something on the ground (alleged
defect) that tore her tennis shoe off; she threw herself sideways as she fell in order to protect her
daughter, whom she was carrying; and that she extended her arm and hand to brace the fall as
she hit the ground, thereby injuring her hand and fingers. Plaintiff later testified that it was a
piece of raised cement that caused her to trip and fall.
-3-
263 Mich App 80, 87; 687 NW2d 333 (2004). Under MCR 2.116(C)(7), we are required to
consider not only the pleadings, but also any affidavits, depositions, admissions, or other
documentary evidence filed or submitted by the parties. Horace v City of Pontiac, 456 Mich
744, 749; 575 NW2d 762 (1998). The contents of the complaint must be accepted as true unless
contradicted by the documentary evidence. Sewell v Southfield Public Schools, 456 Mich 670,
674; 576 NW2d 153 (1998). This Court must consider the documentary evidence in a light most
favorable to the nonmoving party. Herman v Detroit, 261 Mich App 141, 143-144; 680 NW2d
71 (2004). If there is no factual dispute, whether a plaintiff’s claim is barred by governmental
immunity is a question of law for the court to decide. See Huron Tool & Engineering Co v
Precision Consulting Services, Inc, 209 Mich App 365, 377; 532 NW2d 541 (1995). If a factual
dispute exists, however, summary disposition is not appropriate. Id.
A governmental agency is generally immune from tort liability when it is engaged in the
exercise or discharge of a governmental function, subject to various exceptions. MCL
691.1407(1). The exception in MCL 691.1406 provides in pertinent part:
Governmental agencies have the obligation to repair and maintain public
buildings under their control when open for use by members of the public.
Governmental agencies are liable for bodily injury and property damage resulting
from a dangerous or defective condition of a public building if the governmental
agency had actual or constructive knowledge of the defect and, for a reasonable
time after acquiring knowledge, failed to remedy the condition or to take action
reasonably necessary to protect the public against the condition. Knowledge of the
dangerous and defective condition of the public building and time to repair the
same shall be conclusively presumed when such defect existed so as to be readily
apparent to an ordinary observant person for a period of 90 days or longer before
the injury took place. As a condition to any recovery for injuries sustained by
reason of any dangerous or defective public building, the injured person, within
120 days from the time the injury occurred, shall serve a notice on the responsible
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.
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 responsible governmental agency, anything to the
contrary in the charter of any municipal corporation notwithstanding. [Emphasis
added.]4
4
In general, to fall within the confines of the public building exception, a plaintiff must prove
that (1) a governmental agency is involved, (2) the public building in question is open for use by
members of the public, (3) a dangerous or defective condition of the public building itself exists,
(4) the governmental agency had actual or constructive knowledge of the alleged defect, and that
(5) the governmental agency failed to remedy the alleged defective condition after a reasonable
(continued…)
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MCL 691.1407 confers broad immunity, and the public building exception under MCL
691.1406 is to be narrowly drawn. De Sanchez v Dep’t of Mental Health, 467 Mich 231, 237;
651 NW2d 59 (2002). That being said, with regard to mandatory notice provisions, including
that found in MCL 691.1406, substantial compliance is sufficient. City of Livonia v Dep’t of
Social Services, 423 Mich 466, 513; 378 NW2d 402 (1985); Meredith v City of Melvindale, 381
Mich 572, 579-580; 165 NW2d 7 (1969); Dreslinski v Detroit, 37 Mich App 187, 188; 194
NW2d 551 (1971).
The township’s arguments regarding compliance with the notice provision found in MCL
691.1406 lack merit. First, with respect to the township’s claim that plaintiff incorrectly
furnished the notice to the district court, the second notice, which was still timely, was addressed
to the Clinton Township Building Authority. While apparently district court personnel first
handled the notices, both were passed on to the township’s finance director, who acknowledged
timely receipt of both notices, and he communicated the situation multiple times to the
township’s insurer and other township personnel. The finance director testified that he had been
handling the township’s insurance and lawsuits for over 26 years.5 He further testified that his
office is located in the building where the fall occurred, which building has the same street
address as that indicated on both notices. We conclude that, in compliance with MCL 691.1406,
a notice was served on, and received by, the responsible governmental agency. Moreover, we
note that this Court in Hussey v City of Muskegon Heights, 36 Mich App 264, 271; 193 NW2d
421 (1971), stated that “failure to serve the notice personally or by certified mail is
inconsequential where . . . the notice was timely received.” Here, notice was timely received by
an appropriate representative of the township.
With regard to the township’s assertion that plaintiff misidentified the location of the
occurrence as being the stairs and not the concrete patio or plaza beyond the top of the stairs, we
disagree. While the notice initially suggested a fall on the entrance stairs to the courthouse, it
then specified that “[t]he nature of the defect is raised cement at the top of the stairs.” The
alleged defect, as reflected in the photographs, plaintiff’s deposition testimony, and the experts’
affidavits, is accurately described as being at the top of the stairs.
Next, as to the township’s argument that the notice failed to identify which of the
building’s several staircases was being ascended at the time of the fall, the notice provided that
the incident occurred in the stairway area of the entrance to the 41-B District Court, and while
the building has multiple staircases or stairways, there is only one stairway that is the direct
entrance to the court. A photograph shows the stairway in question and the entrance doors
beyond the stairway, with “41-B District Court” emblazoned on the building above the entrance
doors. The building, which is referred to in the record at times as the civic center, houses more
than just the district court. We conclude that the notice, by referring to the entrance of the 41-B
(…continued)
period of time. De Sanchez v Dep’t of Mental Health, 467 Mich 231, 236; 651 NW2d 59 (2002).
5
The township does not maintain that the finance director was not an appropriate person to
receive the notice on behalf of the township under MCL 691.1406, nor that some other
individual should have been provided notice.
-5-
District Court, clearly conveyed the location of the stairway at issue. We note that the finance
director testified that, when he went to locate the alleged defect, he paid the “most attention to
the areas closest to the 41B District Court[.]”6 Additionally, the fax from the finance director to
the insurance agent indicated that a fall had occurred at the court entrance and that the director
inspected the stairs and adjoining concrete.
With respect to the township’s claim that the notice failed to identify whether plaintiff
was ascending the stairway up the left side, center, or right side of the particular stairway, there
are only a few cement patio blocks, flags, or slabs that extend the width of the top of the
staircase, making it unnecessary, for purposes of locating the defect, to describe to which side of
the staircase plaintiff was walking. In Hussey, supra at 267, this Court ruled, in the face of an
argument to the contrary, that a notice sufficiently apprised the defendant of the exact location of
a sidewalk defect, where the notice provided that the defect was located “on Peck Street at
Johnson Drugstore and Vi and Herm’s Café, 2042 Peck Street.” The notice here was more exact
than the one found acceptable in Hussey.
In sum, we hold that the notice specified the exact location of the alleged defect as well
as the nature of the defect, thereby complying with the statutory notice requirement.7 The term
“exact” can be subject to varying degrees, such that, if one were to demand an exceptionally high
degree of exactness, a defect could arguably have to be described by reference to its location in
comparison to all surrounding monuments or objects in measurements down to “1/16 inch”
increments. As noted by the trial court, “The statute doesn’t say they’ve got to give you the
longitude, latitude by inches and square feet and everything in between.” We conclude that when
the Legislature used the term “exact,” which is defined as “strictly accurate or correct,”8
Random House Webster’s College Dictionary (2001), it intended that the injured party give
notice sufficient to allow the controlling governmental agency to easily and readily identify the
alleged defect. The notice provided here complied with the statutory mandate. Although we
understand that township officials claimed an inability to locate any alleged defect, this appears
to be more of a matter concerning what one considers a true defect as opposed to an inaccurate
locale being given.
The township next argues that summary disposition is proper regardless of the notice
issues because there is no evidence, from which an inference can be drawn, that the defect was in
6
As indicated above, the finance director testified that he could not find any defect when looking
in the area.
7
The township makes brief, stray arguments throughout its brief such as the claim that plaintiff
failed to attach a photograph to the notice, but MCL 691.1406 does not require photographic
evidence. The township also complains that plaintiff’s notices were undated; however, the
notices, in both instances, were referenced attachments to cover letters that were indeed dated by
plaintiff.
8
Words undefined in a statute must be given their plain and ordinary meaning, which can be
ascertained by looking at dictionary definitions. Koontz v Ameritech Services, Inc, 466 Mich
304, 312; 645 NW2d 34 (2002).
-6-
existence two years prior to plaintiff’s deposition, the taking of photographs, and the inspections
done by the experts. The township also contends that it had no notice, actual or constructive, of
the alleged defect. We first note that, while these arguments were raised below by the township
in its summary disposition brief, the parties and the trial court only focused on the notice issue at
the hearing. Although the court denied the motion for summary disposition in its entirety, it did
not expressly analyze the issues aside from the notice issue. We decline to reverse on the issues
raised by the township. First, as indicated above, plaintiff testified that her foot hit an object a
couple of steps from the top of the stairs, tearing off her shoe and causing her to fall. She further
testified that she tripped on a piece of uneven or raised cement. Additionally, photographs of the
area show crumbling cement and cement unevenness or height variation. Plaintiff’s expert
opined that the elevation between the concrete flags or slabs that caused plaintiff to trip was 5/8
of an inch and constituted a defect. He further averred that it was more likely than not that the
defect existed for more than 2-½ years prior to his inspection. He then set forth a list of various
physical and structural indicators in support of this conclusion, which included a rejection of
substantial change due to two freeze/thaw cycles given the location of the concrete flags, their
configuration, and the weather conditions over the past two winters. In the opinion of plaintiff’s
expert, the concrete terrace was in a state of disrepair for many years, and he noted that there was
evidence of eroded joint filler material, indicating an ineffective repair measure taken long ago.
The township’s expert acknowledged a deviation between the cement flags, averring that the
deviation measured slightly more than half an inch, but then asserted that because of the two
freeze/thaw cycles the extent of any deviation at the time of the accident, if it even existed, could
not be determined. Also, as reflected above, the finance director could not locate or identify any
defect after receipt of the notices.
Within the confines of MCL 691.1406, considering plaintiff’s testimony, the testimony of
the finance director, the photographs, the conflicting expert opinions, and the fact that the area
was heavily traversed and in plain view to township personnel, we conclude that a factual dispute
exists sufficient to preclude summary disposition as reasonable minds could differ regarding
whether the alleged defect existed at the time of the accident and whether the township had
actual or constructive knowledge of the defect.
Finally, the township argues that summary disposition was warranted because plaintiff
failed to adequately identify the location of the slip and fall by way of documentary evidence.
Given plaintiff’s testimony as referenced in this opinion,9 and considering the testimony in the
context of the other documentary evidence, the location of the accident and defect was
sufficiently set forth, making summary disposition inappropriate.
Affirmed.
/s/ Jane E. Markey
/s/ William B. Murphy
/s/ Kirsten Frank Kelly
9
We note that, during her deposition testimony, plaintiff placed an “X” on a photograph showing
where she tripped and fell, and that photograph is part of the lower court record.
-7-
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