Phelps v. Department of State Highways , 75 Mich. App. 442 ( 1977 )

75 Mich. App. 442 (1977) 254 N.W.2d 923

PHELPS
v.
DEPARTMENT OF STATE HIGHWAYS

Docket Nos. 28252, 28253.

Michigan Court of Appeals.

Decided May 3, 1977.

Pence, Rogers, Carlson & Flynn, for plaintiff Mary Phelps.

Garan, Lucow, Miller, Lehman, Seward & Cooper (by Ronald C. Winiemko, of counsel), for plaintiffs McCullagh Leasing, Inc., Madison Electric Co. and Dennis M. Durocher.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Louis J. Caruso and Myron A. McMillan, Assistants Attorney General, for the Department of State Highways.

Before: DANHOF, C.J., and T.M. BURNS and J.E. McDONALD,^[*] JJ.

DANHOF, C.J.

On July 18, 1974, plaintiff Mary Phelps brought suit in the Court of Claims individually, as administratrix of the estates of her deceased husband and children, and as next friend of her surviving child. Plaintiff sought to recover damages for injuries sustained by her and her surviving child, and for the wrongful deaths of her husband and children, in a collision that occurred on a state trunk line highway on July 18, 1972, allegedly as a result of a defective condition of the highway. Dennis Durocher, McCullagh Leasing, Inc., and Madison Electric Company, the driver, owner, and lessee, respectively, of the other car involved in the collision, intervened as plaintiffs, seeking contribution from the state in the event they were held liable for damages in a separate negligence action previously instituted by plaintiff in Wayne County Circuit Court. Plaintiff appeals by right from an order entered March 23, 1976, granting accelerated judgment against her individually, as administratrix, and as next friend and from an order entered June 18, 1976, granting summary judgment against her as administratrix. Intervening plaintiffs appeal by right from an order entered March 23, 1976, granting summary judgment for defendants on the claim for contribution.

In Hobbs v Department of State Highways, 398 Mich. 90; 247 NW2d 754 (1976), the Supreme Court held that a claim practically identical to plaintiff's in this case was governed by MCLA 691.1402; MSA 3.996(102), which permits recovery against a governmental agency for bodily injury sustained by reason of such agency's failure to keep any highway under its jurisdiction in reasonable repair, and in a condition reasonably safe and fit for travel. Accordingly, the Court held that the two-year statute of limitations contained in MCLA 691.1411(2); MSA 3.996(111)(2) and the 120-day notice provision of MCLA 691.1404; MSA 3.996 (104) applied to claims arising under MCLA 691.1402; MSA 3.996 (102). The Court further held that, absent a showing of actual prejudice to the state due to lack of notice within 120 days, the notice provision contained in MCLA 691.1404; MSA 3.996(104) is not a bar to claims filed pursuant to MCLA 691.1402; MSA 3.996(102). The instant case is very similar, both factually and procedurally, to Hobbs, and the trial judge made no finding of actual prejudice to the state resulting from plaintiff's failure to comply with the 120-day notice provision. Accordingly, we reverse the accelerated judgment entered against plaintiff individually, as administratrix, and as next friend for failure to comply with the 120-day notice provision.

The trial judge concluded that in enacting MCLA 691.1402; MSA 3.996(102), which permits recovery only for "bodily injury" or "damage to property", the Legislature had manifested an intent not to waive its immunity to suits for wrongful death. This conclusion was reinforced by the wrongful death statute's clear distinction between actions for death or injuries and actions for injuries resulting in death, MCLA 600.2922; MSA 27A.2922, and by MCLA 691.1407; MSA 3.996(107), which states that "Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is hereby affirmed". We recognize that statutory waivers of immunity must be strictly construed, Stremler v Department of State Highways, 58 Mich. App. 620, 633; 228 NW2d 492 (1975), but such statutes must not be interpreted in a manner that leads to absurd results. Bofysil v Department of State Highways, 44 Mich. App. 118, 128-129; 205 NW2d 222 (1972). As the trial judge himself noted in his opinion, it is absurd to say that one who dies as a result of injuries sustained in an automobile accident has not suffered bodily injury.

Even assuming that judicial interpretation of the phrase "bodily injury" is required, however, defendant's contention that it does not encompass injuries resulting in death comes late in the day. Numerous death actions have been maintained under MCLA 691.1402; MSA 3.996(102) in which the precise question was not raised. See, e.g., Hobbs v Department of State Highways, supra, Kerkstra v State Highway Department, 60 Mich. App. 761; 231 NW2d 521 (1975), Zimmer v State Highway Department, 60 Mich. App. 769; 231 NW2d 519 (1975), Detroit Bank and Trust Co v Department of State Highways, 55 Mich. App. 131; 222 NW2d 59 (1974), In re Woods Estate, 49 Mich. App. 412; 212 NW2d 240 (1973). Although the question was not squarely before it, in Hobbs v Michigan State Highway Department, 58 Mich. App. 189, 193; 227 NW2d 286 (1975), this Court said:

"Plaintiff's decedent clearly was a ``person sustaining bodily injury or damage to his property'. The question whether his death was due to defendant's negligent failure to keep ``any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel', is of course one of fact, to be determined by the trier of fact at a later stage in these proceedings. [Footnote omitted] More important for our purposes here, plaintiff-appellant Hobbs has clearly pled sufficient facts to bring her claim under § 2."

As enunciated by the Legislature, it is the public policy of this state to permit persons sustaining bodily injury as a result of the negligence of the State Highway Department to sue the state. We perceive no reason, nor any legislative intent, to distinguish between persons who sustain bodily injury and persons who sustain such serious bodily injury that they are killed. Accordingly, on grounds of public policy and common sense, we hold that the phrase "bodily injury" in MCLA 691.1402; MSA 3.996(102) includes bodily injuries resulting in death. The trial court's summary judgment against plaintiff as administratrix of the estates of her husband and children is reversed.

In view of our disposition of plaintiffs' claims, we reverse the trial court's summary judgment dismissing intervening plaintiffs' claim for contribution. Although we express no opinion at this juncture on the merits of this claim, we invite the trial judge to consider it in light of the general principles set forth in United States v Yellow Cab Co, 340 U.S. 543; 71 S. Ct. 399; 95 L. Ed. 523 (1951).

Reversed and remanded for further proceedings consistent with this opinion. No costs, a public question being involved.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.