Kamal Nassar v. City of Dearborn ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
KAMAL NASSAR, UNPUBLISHED
April 20, 2017
Plaintiff-Appellant,
v No. 330653
Wayne Circuit Court
CITY OF DEARBORN, LC No. 14-010530-NO
Defendant-Appellee.
Before: MURPHY, P.J., and MURRAY and M. J. KELLY, JJ.
PER CURIAM.
Plaintiff, Kamal Nassar, appeals as of right the trial court’s order granting summary
disposition in favor of defendant, City of Dearborn (the city), in this case pursued by plaintiff
under the highway exception to governmental immunity, MCL 691.1402. Plaintiff alleged that
he was operating a moped when he struck a large pothole, which caused the moped to flip over
and crash, resulting in serious injuries to plaintiff. The city argued that plaintiff failed to serve
the city with a proper notice of injury as required by MCL 691.1404(1). Particularly, the city
contended that plaintiff’s notice misidentified “the exact location . . . of the defect,” MCL
691.1404(1). The trial court agreed and summarily dismissed plaintiff’s lawsuit. We reverse
and remand.
Following the alleged accident, plaintiff mailed a notice to the city, the city of Dearborn
Heights, the city of Detroit, and the court of claims. The notice stated the following with respect
to the incident and the claimed exact location of the defect:
Please be further advised that on August 19, 2013, Mr. Nassar was driving
his moped/motorcycle/motor scooter[] eastbound on Paul Street in the City of
Dearborn, and/or Dearborn Heights, and/or City of Detroit. Mr. Nassar had
crossed over the lanes for both southbound and northbound Southfield Freeway.
Once he proceeded past the northbound lanes of the Southfield Freeway, he hit a
large pothole in the lanes of Paul Street. Mr. Nassar observed the large pothole in
the road bed of Paul Street, and immediately started braking, in order to bring his
50 cc moped to a stop. Unfortunately, Mr. Nassar was not able to stop his moped
and the front wheel of his moped went into the large pothole on Paul Street. Mr.
Nassar was thrown over the handlebars of his moped, and the moped flipped over
on top of him.
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The subject pothole is located in the eastbound lanes of Paul Street,
approximately seventeen (17) feet east of the northbound lanes of the Southfield
Freeway. The pothole is positioned on the right hand side of the left through lane
for eastbound Paul Street. The specific pothole has the shape of a capital “I”, and
is depicted in the attached photographs with the red and white box of Marlboro
cigarettes inside the pothole. The specific “I” shaped/hourglass shaped pothole is
approximately 13 to 15 feet south of the double yellow line separating the
eastbound and westbound lanes on Paul Street. Once again, the specific pothole is
approximately seventeen (17) feet from the eastern edge of the northbound lanes
of the Southfield Freeway, and approximately 13 to 15 feet south of the double
yellow line which separates the eastbound and westbound lanes of Paul Street.[1]
On August 14, 2014, plaintiff filed a negligence lawsuit against the city, the cities of
Dearborn Heights and Detroit, the Wayne County Department of Public Services, and Wayne
County. All of the defendants filed answers and affirmative defenses. On October 29, 2014, a
stipulated order was entered dismissing Wayne County and the Wayne County Department of
Public Services without prejudice. On November 5, 2014, a stipulated order was entered
dismissing the city of Dearborn Heights without prejudice. On March 6, 2015, the city of
Detroit filed a motion for summary disposition, arguing that the location of the pothole was
outside the jurisdiction of Detroit. On June 16, 2015, a stipulated order was entered dismissing
the city of Detroit.
On September 16, 2015, the city filed its motion for summary disposition, contending
that during plaintiff’s deposition, he identified the site of the pothole as being east of the
Southfield Service Drive instead of east of the Southfield Freeway, which was the location
provided in the notice. Relying on an affidavit by the city engineer, the city additionally argued
that the location identified in plaintiff’s notice, which was on the Paul St. overpass, was outside
of the city’s jurisdiction and fell exclusively within the jurisdiction of the Michigan Department
of Transportation (MDOT). The city engineer also averred as follows:
I learned that Plaintiff claimed that the accident did not occur 17 feet east
of the northbound lanes of the Southfield Freeway, but rather 17 feet east of the
Southfield Service Drive. This is a different location than the location described
in Plaintiff’s notice. The Southfield Freeway, commonly known as M-39, is a
state highway. By contrast, the Southfield Service Drive is an access road for the
Southfield Freeway, and at Paul Street is a local road. The southern portion of the
Southfield Service Drive in Dearborn has residential properties. Accordingly, if
the accident occurred 17 feet east of the Southfield Service Drive, a local road,
1
We note that the city submitted a police crash report which indicated that plaintiff had run into
the rear of a stopped motor vehicle with his moped in the area of the pothole, with the motor
vehicle then fleeing the scene. Plaintiff adamantly denied ever making such a claim, insisting
that the accident and his injuries resulted from him hitting the pothole with his moped. This
factual dispute is not relevant to resolving this appeal.
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then Plaintiff’s notice specifying that the accident occurred 17 feet east of the
Southfield Freeway, a state highway, provided an inaccurate location of the
accident.
Finally, the city maintained that the pothole did not constitute a defect under the highway
exception to governmental immunity.2
In plaintiff’s response to the city’s motion for summary disposition, plaintiff stated:
The issue in this matter is really an issue of semantics. In drafting the
Notice of Intent Letter in this matter, Plaintiff’s counsel considered the
“Southfield Freeway” to include not only the freeway lanes, but also the
northbound and southbound service drive lanes which allow access onto and off
of the Southfield Freeway itself.
Plaintiff, arguing that one of the attached photographs to the notice provided the
necessary clarity, also maintained:
As the court will note, the “I” shaped pothole[] is clearly depicted in the
photographs attached to Plaintiff’s Notice . . . . More importantly, the very top
edge of the first photograph[] shows a grassy border. This grass border would not
be present on the Paul Street overpass for the northbound and southbound lanes of
the Southfield Freeway, where [the city] []now claims Plaintiff identified the
location of the subject pothole.
Plaintiff further argued that the pertinent pothole was located within the city’s and not MDOT’s
jurisdiction and that the pothole constituted a severe highway defect.
On November 13, 2015, the trial court entertained oral argument on the city’s motion for
summary disposition, and it then ruled in favor of the city, reasoning as follows:
It’s an inaccurate description, counsel. I don’t think it’s a technicality. I
think it’s an inaccurate description. It does not provide notice of the exact
location, counsel. And while you did have the photographs, those photographs did
not assist to identify the exact location.
***
2
The city also attached an affidavit by the office manager for the city’s legal department, and she
averred that the copy of the notice mailed to the city did not have any photographs attached to it
despite the notice’s indication to the contrary. In an affidavit by plaintiff’s counsel’s legal
assistant, she averred that she had mailed the notice to the city by certified mail and personally
attached the photographs. The city has not renewed any claim on appeal that it did not receive
the photographs with the notice.
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That grass is the most insignificant part of the photograph. It’s barely
there. It’s barely there. Yes, when you pointed it out I could see it. [It is] a tough
result but I do think that the statute says exact location.
On November 17, 2015, an order was entered granting summary disposition in favor of the city
for the reasons stated on the record. Plaintiff now appeals as of right.
In Moraccini v City of Sterling Hts, 296 Mich. App. 387, 391; 822 NW2d 799 (2012), this
Court recited the applicable standards regarding a motion for summary disposition predicated on
MCR 2.116(C)(7) and governmental immunity, stating:
This Court reviews de novo a trial court's decision on a motion for
summary disposition. The applicability of governmental immunity and the
statutory exceptions to immunity are also reviewed de novo on appeal. MCR
2.116(C)(7) provides for summary disposition when a claim is “barred because of
. . . immunity granted by law . . . .” The moving party may submit affidavits,
depositions, admissions, or other documentary evidence in support of the motion
if substantively admissible. The contents of the complaint must be accepted as
true unless contradicted by the documentary evidence. We must consider the
documentary evidence in a light most favorable to the nonmoving party for
purposes of MCR 2.116(C)(7). If there is no factual dispute, whether a plaintiff's
claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of
law for the court to decide. But when a relevant factual dispute does exist,
summary disposition is not appropriate. [Citations and internal quotation marks
omitted; omissions in original.]
MCL 691.1404(1) provides:
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. [Emphasis
added.3]
In Thurman v City of Pontiac, 295 Mich. App. 381, 384-385; 819 NW2d 90 (2012), this
Court set forth the basic analytical framework for a case brought under the highway exception to
governmental immunity:
The immunity conferred upon governmental agencies is broad, and
the statutory exceptions thereto are to be narrowly construed. Under the highway
3
The only aspect of plaintiff’s notice that the city challenged concerned the location of the
alleged defect.
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exception to governmental immunity, a governmental agency with jurisdiction
over a particular highway has a duty to maintain the highway in reasonable repair
so that it is reasonably safe and convenient for public travel. MCL 691.1402(1). . .
. However, before the highway exception can apply, the plaintiff must timely
notify the governmental defendant of his or her claim in accordance with MCL
691.1404(1). The notice provided under MCL 691.1404(1) need not be in any
particular form, but must be provided within 120 days of the plaintiff's injury.
[Citations, quotation marks, and alteration omitted.]
For purposes of MCL 691.1404(1), “[f]ailure to provide adequate notice under this statute
is fatal to a plaintiff's claim against a government agency.” McLean v City of Dearborn, 302
Mich. App. 68, 74; 836 NW2d 916 (2013) (citation omitted). In Plunkett v Dep’t of Transp, 286
Mich. App. 168, 176-177; 779 NW2d 263 (2009), this Court acknowledged, reviewed, and
applied caselaw interpreting MCL 691.1404(1), observing:
The Michigan Supreme Court has established that MCL 691.1404 is
straightforward, clear, unambiguous, and not constitutionally suspect and must be
enforced as written. However, when notice is required of an average citizen for
the benefit of a governmental entity, it need only be understandable and sufficient
to bring the important facts to the governmental entity's attention. Thus, a liberal
construction of the notice requirements is favored to avoid penalizing an inexpert
layman for some technical defect. The principal purposes to be served by
requiring notice are simply (1) to provide the governmental agency with an
opportunity to investigate the claim while it is still fresh and (2) to remedy the
defect before other persons are injured.
The requirement should not receive so strict a construction as to make it
difficult for the average citizen to draw a good notice. A notice should not be held
ineffective when in substantial compliance with the law. A plaintiff's description
of the nature of the defect may be deemed to substantially comply with the statute
when coupled with the specific description of the location, time and nature of
injuries. Some degree of ambiguity in an aspect of a particular notice may be
remedied by the clarity of other aspects. [Citations, quotation marks, alterations,
and ellipses omitted.]
“ ‘In determining the sufficiency of the notice . . . the whole notice and all of the facts
stated therein may be used and be considered to determine whether it reasonably apprises the
officer upon whom it is required to be served of the place and the cause of the alleged injury.’ ”
Plunkett, 286 Mich. App. at 177 n 15 (citation omitted; emphasis added; omission in original).
In Jakupovic v City of Hamtramck, 489 Mich. 939; 798 NW2d 12 (2011), our Supreme
Court, in an order, addressed MCL 691.1404(1) in a case involving an inaccurate address:
The Court of Appeals recognized that the plaintiff had stated the wrong
address[, mixing up neighboring properties,] in giving notice to the defendant of
an alleged defect in a sidewalk. The Court of Appeals erred by excusing this error,
rather than enforcing the notice requirement found at MCL 691.1404(1) as
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written. Rowland v Washtenaw Co Rd Comm, 477 Mich. 197, 219 (2007). The
statute requires notice of “the exact location” of the defect, and in this case, the
plaintiff failed to specify the correct address where the defect was allegedly
located.
In Thurman, 295 Mich. App. at 383, the plaintiff served a notice on the defendant
indicating that the alleged defect was located at “35 Huron, Pontiac, Michigan.” However, there
was both a 35 West Huron St. and a 35 East Huron St. in Pontiac, and the notice had failed to
distinguish between the two addresses. Id. The Thurman panel held that the notice was
inadequate, entitling the defendant to summary dismissal of the suit. Id. at 386.4 The Court
rejected the plaintiff’s reliance on photographs of the alleged defect, but only because they were
first presented at summary disposition, which occurred more than 120 days after the injury; the
photographs had not been attached to the notice. Id.
Here, we hold that plaintiff adequately identified the exact location of the defect when
taking into consideration the whole notice, including the photographs. See Plunkett, 286 Mich
App at 177 n 15. While perhaps confusion could arise for failing to distinguish between the
Southfield Freeway and the Southfield Freeway Service Road, the remainder of the information
in the notice and the photographs provided the necessary clarity. The section of the notice
regarding the location of the pothole described the pothole as being in the shape of an hourglass
or an “I” and lying “approximately 13 to 15 feet south of the double yellow line which separates
the eastbound and westbound lanes of Paul Street.” In addition, in the section of the notice
regarding the nature of the defect, plaintiff wrote:
The roadway in this area is severely cracked, crumbling, and pitted. The
pothole itself is approximately six inches deep. The pothole is also approximately
12 inches wide and 18 inches long. The very bottom/south portion of the pothole[]
extends to approximately 24 inches in width.
As the information above reflects, plaintiff provided a very detailed description of the
pothole, which was uniquely shaped and extremely large, along with the surrounding area.
When this information is coupled with the photographs of the area that were attached to the
notice, the city should have realized that the 17-foot measurement in the notice ran from the
Southfield Freeway Service Road and not the Southfield Freeway. This is especially true where,
despite the trial court’s comments, the grassy area in the one photograph was clearly visible, the
photograph plainly depicted that the grass was level with Paul St., and where the photograph,
given the location of the grass and the nature of other features, established the fact that the
location of the pothole at issue was not on part of the Paul St. highway overpass, which is the
area that the city claimed was identified in plaintiff’s notice. We also struggle to believe that the
city genuinely thought that plaintiff measured the 17-foot distance from the highway running
many feet under the roadway on which the pothole existed, as opposed to the service road that is
on the same plane as Paul St.
4
The Court also relied, in part, on the fact that the notice did not state whether the defect was on
the north or south side of Huron St. Thurman, 295 Mich. App. at 386.
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In sum, we conclude that plaintiff, at a minimum, substantially complied with identifying
the exact location of the alleged defect. Accordingly, the trial court erred in granting summary
disposition in favor of the city. For the reasons discussed above, we also reject the city’s
argument that plaintiff’s notice identified a location – a portion of the Paul St. overpass – that
was not under the city’s jurisdiction, but rather was the responsibility of MDOT. The city does
not assert that the location of the pothole, as urged by plaintiff and measured from the service
road, is not within the city’s jurisdiction. Finally, we decline to address the city’s alternative
argument for affirming the trial court’s order, i.e., that the pothole was not a defect as a matter of
law. The trial court never reached said issue, and that is the appropriate court to address the
argument in the first instance.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Having fully prevailed on appeal, plaintiff is awarded taxable costs under
MCR 7.219.
/s/ William B. Murphy
/s/ Michael J. Kelly
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