Kerkstra v. State Highway Department

60 Mich. App. 761 (1975) 231 N.W.2d 521

KERKSTRA
v.
STATE HIGHWAY DEPARTMENT

Docket No. 21007.

Michigan Court of Appeals.

Decided April 28, 1975.

Hillman, Baxter & Hammond (by Stephen D. Turner), for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Louis J. Caruso and Francis J. Carrier, Assistants Attorney General, for defendants.

Before: DANHOF, P.J., and BASHARA and D.E. HOLBROOK, JR., JJ.

Leave to appeal applied for.

PER CURIAM.

Plaintiff brought suit for damages arising out of an automobile accident which occurred at the intersection of an exit ramp from US-131 and Wealthy Street in the City of Grand Rapids on May 6, 1972. The plaintiff's decedent was killed when his automobile was struck by another vehicle allegedly due to the defendants' negligence in the design, construction and maintenance of the intersection. Complaint was filed on January 29, 1974. The Court of Claims granted defendants' motion for an accelerated judgment because the plaintiff failed to comply with the notice requirement of the Court of Claims Act, MCLA 600.6431(1); MSA 27A.6431(1).

The parties and the lower court proceeded on the assumption that the Court of Claims Act controlled in this case, and on appeal, arguments as to the constitutionality and the proper implementation of the act are advanced. However, this Court has recently held that under facts indistinguishable from those in the present case, the general highway statute, specifically MCLA 691.1402; MSA 3.996(102), is controlling. Zimmer v State Highway Dept, 60 Mich App 769; 231 NW2d 519 (1975), citing Hobbs v Michigan State Highway Department, 58 Mich App 189; 227 NW2d 286 (1975). Consequently, because the claim was filed within the appropriate two-year limitation period, MCLA 691.1411(2); MSA 3.996(111)(2), the accelerated judgment entered in the defendants' favor must be reversed, and the case remanded for further proceedings.

Reversed and remanded for further proceedings not inconsistent with this opinion. No costs, a public question.