Awilda Falkner v. City of Inkster

STATE OF MICHIGAN
COURT OF APPEALS
AWILDA FALKNER, UNPUBLISHED
January 15, 2015
Plaintiff-Appellant,
v No. 318525
Wayne Circuit Court
CITY OF INKSTER, LC No. 12-011924-NO
Defendant-Appellee.
Before: FORT HOOD, P.J., and HOEKSTRA and O’CONNELL, JJ.
PER CURIAM.
In this action implicating the highway exception to governmental immunity, plaintiff
appeals as of right an order granting defendant’s motion for summary disposition under MCR
2.116(C)(7) based on plaintiff’s failure to comply with MCL 691.1404(1). Because plaintiff’s
notice to defendant did not satisfy MCL 691.1404(1), we affirm.
This appeal arises out of a trip and fall accident on a sidewalk in the city of Inkster on
July 17, 2012. Plaintiff was walking on the sidewalk when he tripped and fell as a result of an
uneven sidewalk. Plaintiff testified at his deposition that his fall was witnessed by Devin
Higgins and Kyrice Higgins, both of whom initially laughed at plaintiff’s fall but then assisted
plaintiff to the car. Plaintiff indicated at his deposition that he suffered a fractured knee and a
possible injury to his shoulder as a result of his fall.
On August 27, 2012, plaintiff sent defendant a notice of the incident. Plaintiff then filed
suit in September of 2012. Defendant moved for summary disposition under MCR 2.116(C)(7)
based on the assertion that plaintiff failed to provide the notice required by MCL 691.1404(1).
The trial court granted summary disposition on this basis, concluding that plaintiff’s notice was
deficient because he failed to identity his injuries and the names of witnesses to his accident.
Plaintiff now appeals as of right.
On appeal, plaintiff argues that the trial court erred in granting summary disposition to
defendant. Specifically, plaintiff maintains that he complied with the notice requirements found
in MCL 691.1404(1).
This Court reviews de novo a trial court’s grant of summary disposition. McLean v
Dearborn, 302 Mich App 68, 72; 836 NW2d 916 (2013). Pursuant to MCR 2.116(C)(7), a
motion for summary disposition may be raised when a claim is barred because of immunity
-1-
granted by law. Plunkett v Dep’t of Transp, 286 Mich App 168, 180; 779 NW2d 263 (2009). To
survive a motion brought on this basis, a plaintiff must allege facts warranting the application of
an exception to governmental immunity. Id. In reviewing a motion for summary disposition
under MCR 2.116(C)(7), this Court considers the affidavits, pleadings, and other documentary
evidence presented by the parties and accepts the plaintiff's well-pleaded allegations as true,
except those contradicted by documentary evidence. Oliver v Smith, 290 Mich App 678, 683;
810 NW2d 57 (2010). “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.” Moraccini v
Sterling Heights, 296 Mich App 387, 391; 822 NW2d 799 (2012). In particular, the applicability
of governmental immunity and statutory exceptions to immunity involve questions of law subject
to de novo review on appeal. Id.; Plunkett, 286 Mich App at 180.
“Except as otherwise provided, the governmental tort liability act (GTLA), MCL
691.1401 et seq., broadly shields and grants to governmental agencies immunity from tort
liability when an agency is engaged in the exercise or discharge of a governmental function.”
Moraccini, 296 Mich App at 391. The highway exception to governmental immunity is set forth
in MCL 691.1402(1), and provides, in part:
Each governmental agency having jurisdiction over any highway shall maintain
the highway in reasonable repair so that it is reasonably safe and convenient for
public travel. A person who sustains bodily injury or damage to his or her
property by reason of failure of a governmental agency to keep a highway under
its jurisdiction in reasonable repair and in a condition reasonably safe and fit for
travel may recover the damages suffered by him or her from the governmental
agency.
“Highway” includes “bridges, sidewalks, trailways, crosswalks, and culverts on the highway.”
Robinson v Lansing, 486 Mich 1, 6-7; 782 NW2d 171 (2010), quoting MCL 691.1401(e).
Before bringing suit, a claimant seeking to file a lawsuit against a governmental agency
under the highway exception to governmental immunity is required to provide the notice
described in MCL 691.1404. Burise v City of Pontiac, 282 Mich App 646, 653; 766 NW2d 311
(2009). In particular, in relevant part, the statute provides that:
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. [MCL 691.1404(1).]
In other words, within 120 days from the date of injury, a claimant must provide notice to the
governmental agency that “(1) specifies the exact location and nature of the defect, (2) identifies
the injuries sustained, and (3) provides the names of any known witnesses.” Burise, 282 Mich
App at 653. The notice need not be provided in a particular form, but rather, it is sufficient if it
is timely and contains the requisite information. Id. at 654. Further, the required information
-2-
does not have to be contained within the plaintiff’s initial notice, provided that the required
information is received by the governmental agency within the 120-day period. Id.
“MCL 691.1404 is ‘straightforward, clear, unambiguous’ and ‘must be enforced as
written.’” McLean, 302 Mich App at 75, quoting Rowland v Washtenaw Co Rd Comm, 477
Mich 197, 219; 731 NW2d 41 (2007). “Failure to provide adequate notice under this statute is
fatal to a plaintiff's claim against a government agency.” McLean, 302 Mich App at 74. This is
true even if the defendant suffered no prejudice as a result of the plaintiff’s failure to comply
with MCL 691.1404. Rowland, 477 Mich at 219.
Regarding the level of detail required in the notice, it has been said that a plaintiff “must
at least ‘adequately’ provide the required information.” McLean, 302 Mich App at 75 (citation
omitted). That is, the notice “need only be understandable and sufficient to bring the important
facts to the governmental entity's attention.” Plunkett, 286 Mich App at 176. More particularly,
with regard to the injury sustained, a notice which states that the plaintiff has sustained
“significant injuries” is an insufficient description of the injury, particularly when the plaintiff
“did not even name a body part that was injured.” McLean, 302 Mich App at 77-78. Notice is
also defective where it fails to disclose the name of a known witness. See Burise, 282 Mich App
at 652.
In this case, plaintiff’s initial notice to defendant read as follows:
Please be on notice that I represent [plaintiff] who was seriously injured on your
public sidewalk on July 17, 2012.
That on the day of the accident, [plaintiff] sustained injuries as a result of uneven
sidewalk in front of 411 Greenwood, Inkster MI 48141.
The location of the hazard is located thirty-five (35) feet, eight (8) inches west
and thirty (30) feet four (4) inches south from the center of the front door at 411
Greenwood, Inkster, MI 48141, to the trip point.
This is notice to you under the law of the occurrence.
We agree with plaintiff that this initial notice, including a metes and bounds description
of the location of an uneven sidewalk, sufficiently described the exact location and nature of the
defect. The notice was nonetheless defective, however, because it failed to identify witnesses
known to plaintiff, i.e., Devin Higgins and Kyrice Higgins.1 Cf. Burise, 282 Mich App at 652.
1
Plaintiff argues on appeal that there is merely an assumption that Devin Higgins and Kyrice
Higgins witnessed his fall, meaning they are merely “presumed” witnesses and not “known”
witnesses within the meaning of MCL 691.1404(1). This argument is entirely unavailing. First,
the evidence indicates that Devin Higgins and Kyrice Higgins did witness all or part of plaintiff’s
accident. Specifically, they were both with plaintiff at the time of his fall and plaintiff testified
that he knew they saw him fall because they began to laugh “when [he] fell.” Second, although
MCL 691.1404(1) refers to witnesses “known” to a claimant, it does not limit the description of
-3-
In addition, while the notice stated that plaintiff “was seriously injured,” this description was
wholly inadequate to apprise defendant of the injury sustained by plaintiff. It failed to provide
any meaningful description of plaintiff’s injury or to even identify, as a minimum, the body part
purportedly injured in plaintiff’s fall. Cf. McLean, 302 Mich App at 77-78. Given plaintiff’s
failure to identity his injury and known witnesses to the accident, his initial notice to defendant
failed to comply with MCL 691.1404(1).
Plaintiff argues on appeal that, even if his initial notice was insufficient, his complaint
and witness list, which he filed within 120 days of his injury, may also be considered to
determine whether defendant received the notice required by MCL 691.1404(1). Even
considering these additional materials, it is clear that plaintiff nonetheless failed to satisfy MCL
691.1404(1). Specifically, plaintiff’s complaint stated only that he sustained “serious injuries”
and suffered “great financial, physical, and emotional loss.” Such imprecise descriptors, like
those in his initial notice, were entirely inadequate to apprise defendant of the injury sustained by
plaintiff. Cf. McLean, 302 Mich App at 77-78. Moreover, although it is true plaintiff’s
preliminary witness list identified Devin Higgins as a witness, plaintiff still failed to identify
Kyrice Higgins as a witness to his fall. This failure to identify a known witness rendered
plaintiff’s notice defective. Cf. Burise, 282 Mich App at 652.
Because plaintiff failed to provide the notice required by MCL 691.1404(1), defendant
was entitled to the protections of governmental immunity and the trial court properly granted
summary disposition under MCR 2.116(C)(7).
Affirmed.
/s/ Karen M. Fort Hood
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
“witnesses” to individuals who witnessed the actual moment of impact. Whether or not Devin
Higgins and Kyrice Higgins actually saw plaintiff fall, they were present at the scene to observe
the defect where plaintiff fell and to observe plaintiff’s injuries. In fact, they carried plaintiff
back to the car because he could not stand. Clearly, they were “witnesses” known to plaintiff.
-4-