PAMELA DOOLEY V CITY OF DETROITAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
December 4, 1998
Wayne Circuit Court
LC No. 96-605926 NO
CITY OF DETROIT,
Before: Markey, P.J., and Sawyer and Whitbeck, JJ.
In this road defect action, plaintiff appeals as of right from the trial court’s order granting
defendant's motion for summary disposition. We affirm.
I. Basic Facts And Procedural History
In March of 1994, thirty-three-year-old plaintiff was rollerblading near her northwest Detroit
home, while her nine-year-old son accompanied her on foot. The two went to a neighborhood party
store, after which plaintiff’s son went to play with friends; plaintiff intended to rollerblade home. When
plaintiff was approximately one hundred feet away from her home, she encountered two holes in the
road. When she tried to “miss” the two holes, her right foot partially went into one of the holes, causing
her to fall. Plaintiff broke both of her arms, one severely, when she extended them to break her fall.
According to plaintiff, the potholes in which she fell were "filled in" by defendant in either
October or November of 1995. However, plaintiff testified at her deposition that the potholes were
“pretty deep,” at least four to five inches deep, on the day of the fall.
In February of 1996, plaintiff filed suit against defendant alleging that while rollerblading her foot
slid into a chuck hole approximately one foot wide and two to three inches deep. Plaintiff further
alleged that the injuries she sustained when she slipped and fell were proximately caused by defendant's
failure to maintain the street in a reasonably safe condition.
In December of 1996, defendant moved for summary disposition arguing that plaintiff was
precluded from bringing suit under the highway exception to governmental immunity because she failed
to comply with the notice requirements of MCL 691.1404; MSA 3.996(104). In addition, defendant
argued that plaintiff's claims did not fall within the highway exception to governmental immunity because
defendant had no duty to maintain the street in a condition reasonably fit for the simultaneous use of
rollerbladers/skaters and motor vehicles.
In response, plaintiff argued that defendant c
ould not raise her failure to comply with MCL
691.1404; MSA 3.996(104) as a defense because it was not adequately plead as an affirmative
defense. In addition, plaintiff argued that defendant could not show that it was actually prejudiced by
plaintiff's non-compliance or, in the alternative, plaintiff was not required to comply with the notice
requirements due to her incapacity. In addition, plaintiff contended that her claims fell within the
highway exception to governmental immunity.
Following a hearing in February of 1997, the trial court took the motion under advisement.
Thereafter, both parties filed supplemental briefs. In April of 1997, the trial court entered an opinion
and order granting defendant's motion for summary disposition. The trial court found that because
plaintiff's disability did not cause her to be incapacitated to the extent that she lacked sufficient
understanding or capacity to make informed decisions regarding her own well being, plaintiff was not
excused from complying with the notice requirements. In addition, the trial court found that defendant
was actually prejudiced by plaintiff's failure to give notice and that defendant had properly plead non
compliance as an affirmative defense. The trial court also found that the highway exception to
governmental immunity should not be extended to apply to persons rollerblading on public streets.
Plaintiff filed a motion for rehearing/reconsideration that the trial court denied. Plaintiff then timely filed
her claim of appeal.
II. Standard Of Review
Defendant brought its motion for summary disposition pursuant to MCR 2.116(C)(8) and
(C)(10). As it appears that the trial court looked beyond the pleadings in making its determination, we
will consider the motion granted pursuant to MCR 2.116(C)(10), Osman v Summer Green Lawn
Care, 209 Mich App 703, 705; 532 NW2d 186 (1995). This Court reviews a grant of summary
disposition de novo. Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499
NW2d 419 (1993), aff'd 446 Mich 482 (1994).
A motion brought pursuant to MCR 2.116(C)(10) tests the factual basis underlying a plaintiff's
claim. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). Pursuant to this court rule,
summary disposition is appropriate when, “[e]xcept as to the amount of damages, there is no genuine
issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter
of law.” MCR 2.116(C)(10). A court reviewing such a motion must consider the pleadings, affidavits,
depositions, admissions, and any other documentary evidence in favor of the opposing party. Radtke,
supra. The opposing party may not rest upon mere allegations or denials in the pleadings but must, by
affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for
trial. MCR 2.116(G)(4). The court must not make factual findings or weigh credibility in deciding a
motion for summary disposition. Manning v Hazel Park, 202 Mich App 685, 689; 509 NW2d 874
(1993). This Court examines the facts in a light most favorable to the nonmoving party. Id. at 689
III. The Highway Defect Exception To Governmental Immunity
Plaintiff's claims against defendant were brought under the highway defect exception to
governmental immunity, MCL 691.1402; MSA 3.996(102). The Governmental Liability Act, MCL
691.1401 et seq.; MSA 3.996(101) et seq., which contains this exception, also contains a notice
provision that states, in pertinent 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. [MCL 691.1404; MSA 3.996(104).]
In Hobbs v Dept of State Highways, 398 Mich 90, 96; 247 NW2d 754 (1976), the Supreme Court
found this notice provision constitutional. However, failure to comply is not necessarily fatal to a
plaintiff’s cause of action. Absent a showing of actual prejudice to the governmental agency, the notice
provision is not a bar to a plaintiff’s claim. Id.
(2) Defendant’s Affirmative Defense
Plaintiff argues that defendant was precluded from raising the issue of non-compliance because
it failed to plead lack of notice and actual prejudice as affirmative defenses. We disagree. Defendant's
affirmative defenses were sufficiently plead to put plaintiff on notice that her non-compliance with the
statutory notice requirements would be an issue in the case. Hanon v Barber, 99 Mich App 851, 855
856; 298 NW2d 866 (1980).
(3) Actual Prejudice
Plaintiff argues that the trial court erred in ruling that defendant was actually prejudiced by her
failure to comply with the notice requirement. We again disagree. In Blohm v Emmet Co Board of
Co Road Commissioners, 223 Mich App 383; 565 NW2d 924 (1997), this Court addressed the
same issue presented in this case. In Blohm, adopting language from Ben P Fyke & Sons v Gunter
Co, 390 Mich 649; 213 NW2d 134 (1973), the Court explained that “prejudice” refers to “a matter
which would prevent a party from having a fair trial, or matter which he could not properly contest.”
Blohm, supra at 388.
Plaintiff’s fall occurred on March 6, 1994. Plaintiff gave no notice to defendant within the 120
day statutory notice period. Plaintiff filed her complaint on February 16, 1996, almost two years after
the fall. The complaint stated in general the location of the pot hole; however, it appears that defendant
did not learn of the exact location of the pot hole until plaintiff’s deposition on May 1, 1996.
In the two-year period that followed plaintiff’s fall, significant changes occurred to the area.
Most notably, defendant filled the pot holes in November of 1995. In addition, according to
defendant’s expert, weather conditions over the two-year period would have caused significant changes
in the road surface. During the winter months, repeated freezing and thawing of moisture that
accumulated in the sub-surface and surface cracks would have caused changes in the roadway. Indeed,
plaintiff testified at her deposition that the roadway was much worse than two years earlier when she
fell. Defendant’s expert opined that because of the changes in the roadway, it would be impossible to
determine the condition of the roadway at the time of the accident.
In addition to the lack of evidence as to the condition of the roadway at the time of the fall,
plaintiff’s rollerblades were unavailable to defendant. Plaintiff testified that, approximately a week after
the accident, she returned the rollerblades and other equipment to Sears. Because the rollerblades were
returned within the 120-day period, it cannot be said that the loss of this evidence was causally related
to the lack of notice. However, their absence, taken in conjunction with the changes in the roadway,
made it virtually impossible for defendant to do any meaningful accident reconstruction. In light of the
foregoing, we find that defendant was prejudiced by plaintiff’s failure to give the statutory notice. We
considered similar factors in Blohm, supra at 388-389, in which we reached the same result.1
Plaintiff contends that she was excused from giving notice because the injuries she sustained
rendered her disabled. We again disagree. MCL 691.1404(3); MSA 3.996(104)(3) provides:
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. In all civil actions in which the
physical or mental capability of the person is in dispute, that issue shall be
determined by the trier of the facts. The provisions of this subsection shall apply
to all charter provisions, statutes and ordinances which require written notices to
counties or municipal corporations. [Emphasis added.]
Contrary to plaintiff's assertions, there was no evidence that plaintiff was “physically or mentally
incapable of giving notice.” Indeed, plaintiff was physically capable of going to a store two days after
her discharge from the hospital to return the rollerblades and, during this same time period, she was
mentally able to place a call to defendant to complain about her fall.2
We conclude that defendant was prejudiced by plaintiff's failure to comply with the notice
requirements of MCL 691.1404; MSA 3.996(104) and that this failure was not excused by any
disability. Therefore, the trial court correctly granted defendant summary disposition. Because of our
resolution of this issue, we find it unnecessary to address plaintiff's remaining claims on appeal.
/s/ Jane E. Markey
/s/ David H. Sawyer
/s/ William C. Whitbeck
At oral argument, plaintiff cited this Court to Pontiac School District v Miller, Canfield, Paddock &
Stone, 221 Mich App 602; 563 NW2d 693 (1997). Presumably, plaintiff’s point was that defendant
was required, under that case, to show with particularity what it actually would have done had it known
of the circumstances of plaintiff’s injury in order to demonstrate actual prejudice. Although we have
reviewed Pontiac School District with this argument in mind, we are unable to see how it is even
remotely relevant to the circumstances of this case; we certainly do not, therefore, view it as controlling.
We do not find that plaintiff’s call was sufficient to put defendant on notice of the incident sufficient to
defeat defendant's assertion that it was prejudiced by the lack of statutory notice. The telephone call
was not in compliance with the statutory requirements. There is no evidence that plaintiff informed
defendant of the exact location of the fall. Plaintiff admitted that she did not follow through with the
complaint to defendant.