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STATE OF MICHIGAN
COURT OF APPEALS
December 7, 2010
Washtenaw Circuit Court
LC No. 08-001000-NO
CITY OF ANN ARBOR,
Before: GLEICHER, P.J., and ZAHRA and K.F. KELLY, JJ.
GLEICHER, P.J. (concurring).
I concur in the result reached by the majority, but write separately to delineate my
reasons for doing so.
The statutory notice provision, MCL 691.1404(1) dictates:
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, . . . 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.
In Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 200; 731 NW2d 41 (2007), the Supreme
Court emphasized the “plain” nature of the statute’s requirement that “notice of the injuries
sustained and of the highway defect must be served on the governmental agency within 120 days
of the injury.” This Court subsequently observed that MCL 691.1404(1) “does not delineate the
form of the notice or when the proper notice is provided except that it must be within 120 days of
the injury and contain the identified information.” Burise v Pontiac, 282 Mich App 646, 654;
766 NW2d 311 (2009). The plaintiff in Burise sent the defendant an initial notice omitting the
name of a known witness, and later submitted a timely claim form containing more detailed
information, including the witness’s name. Id. at 648, 651-652. This Court held that the second
claim form sufficed to meet the statutory notice prerequisites, and specifically disregarded the
initial, defective notice. Id. at 654-655.
Here, plaintiff’s September 22, 2008 letter notified defendant that plaintiff had suffered
an injury on August 25, 2008, due to defendant’s failure “to maintain/construct/design
sidewalks” “located near street address 700 Packard, Ann Arbor, Michigan.” On October 8,
2008, 44 days after the accident, plaintiff filed her complaint in the Washtenaw Circuit Court.
The complaint alleged, in pertinent part:
5. That on August 25, 2008, Plaintiff was traveling on the public
sidewalks located within the City of Ann Arbor, specifically, sidewalk located
near the cross section of Packard and State Streets.
6. That as Plaintiff was attempting to navigate her power chair down a
curb and into the street, she was thrown from her chair due to uneven portions of
concrete, steep incline and slope.
In later paragraphs, the complaint specifically described plaintiff’s injuries. Neither the
complaint nor the September 22, 2008 letter identified any witnesses to plaintiff’s fall.
The September 22, 2008 letter does not specifically identify either the location of the
sidewalk defect or the nature of the defect. Nevertheless, a sufficiently detailed complaint filed
within the 120-day statutory notice period constitutes notice under the statute. See MCL
691.1404(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 . . . .”). However, plaintiff’s complaint amounts to a defective notice
because it likewise fails to “specify the exact location” of the defect and omits mention of any
witnesses. MCL 691.1404(1).
I respectfully disagree with the majority’s conclusion that plaintiff’s complaint
inadequately described the nature of the sidewalk defect. The complaint identified the defect as
“uneven portions of concrete, steep incline and slope.” Regardless whether uneven concrete is
“ubiquitous,” as the majority finds, plaintiff’s depiction of the sidewalk’s condition fulfills the
statutory mandate by specifying the exact nature of the defect. Ante at 4. But because both of
plaintiff’s efforts to supply statutory notice fell short of the level set forth in MCL 691.1401(1) in
multiple other respects, I concur that the circuit court erred when it denied defendant summary
/s/ Elizabeth L. Gleicher