DocketNumber: Docket No. 300396
Citation Numbers: 295 Mich. App. 381
Judges: Jansen, Kelly, Wilder
Filed Date: 1/19/2012
Status: Precedential
Modified Date: 9/9/2022
Defendant, the city of Pontiac (the City), appeals by right the circuit court’s denial of its motion
On March 3, 2010, plaintiff was walking in the City when he fell on a public sidewalk, sustaining injuries to his left leg. Plaintiff alleged that he had tripped on a portion of the sidewalk that was cracked or uneven. On April 15, 2010, plaintiff notified the City in writing that he had tripped on an allegedly defective sidewalk while “walking east on Huron Street” and that his injury had occurred at “35 Huron, Pontiac, Michigan.”
On May 28, 2010, plaintiff commenced a negligence action in the Oakland Circuit Court, claiming that the City had failed to maintain the sidewalk in reasonable repair and that the sidewalk was unsafe for public travel. The City moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that plaintiff had failed to comply with MCL 691.1404(1) because his notice was not sufficiently detailed. In particular, the City argued that the words “35 Huron, Pontiac, Michigan” did not sufficiently identify the exact location of plaintiffs alleged injury. The City claimed that the language of the notice was ambiguous because there was both a 35 West Huron Street and a 35 East Huron Street. Accordingly, the City argued, it was entitled to judgment as a matter of law on the ground of governmental immunity.
On August 30, 2010, plaintiff responded to the City’s motion for summary disposition. Plaintiff maintained that he had fully complied with MCL 691.1404(1) and that his notice had been sufficiently specific. Plaintiff
In reply, the City reiterated its position that plaintiffs description of the location of his fall was deficient. The City further argued that the circuit court should not consider the late-filed photographic evidence because it was not submitted with plaintiffs original notice.
At oral argument, the circuit court observed that although there is both a 35 West Huron Street and a 35 East Huron Street in the city of Pontiac, “plaintiffs notice did still identify the location sufficiently so as to enable [the City] to identify the location. . . .” The court determined that plaintiffs notice provided the City “more than adequate notice” and that “plaintiff did identify the exact location of [his] injury.” On September 22, 2010, the circuit court entered an order denying the City’s motion for summary disposition for the reasons stated on the record.
The grant or denial of a motion for summary disposition is reviewed de novo. McLean v McElhaney, 289 Mich App 592, 596; 798 NW2d 29 (2010). “Similarly, the applicability of governmental immunity is a question of law that this Court reviews de novo.” Id. A plaintiff who asserts a claim against a governmental agency “ ‘must plead in avoidance of governmental immunity’ ” by “stat[ing] a claim that fits within a statutory exception . . . .” Kendricks v Rehfield, 270 Mich App 679, 681; 716 NW2d 623 (2006) (citation omitted).
“[T]he immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000).
In Smith v City of Warren, 11 Mich App 449, 452-453; 161 NW2d 412 (1968), the plaintiff notified the governmental defendant that she had been injured as the result of an alleged defect in the roadway at “ ‘Thirteen Mile and Hoover, near the address of 11480 Thirteen Mile Road.’ ” This Court held that the plaintiffs notice was not sufficiently detailed and did not specify the exact location of the alleged defect because it did not mention that the defect in question was actually on the south side of Thirteen Mile Road and approximately 40 yards away from the stated address. Id. Similarly, in Dempsey v Detroit, 4 Mich App 150, 151; 144 NW2d 684 (1966), an elderly plaintiff was injured after she fell on an allegedly defective sidewalk. Before filing suit, the plaintiff notified the governmental defendant merely that the defect was located at “ ‘Adams and Woodward.’ ” Id. Relying on Barribeau v Detroit, 147
Turning to the instant case, plaintiffs notice merely stated that the alleged defect in the City’s sidewalk was located at “35 Huron, Pontiac, Michigan.” Plaintiffs notice did not specify whether the alleged defect was located at 35 West Huron Street or 35 East Huron Street, both of which are actual addresses in the city of Pontiac. See Jakupovic v City of Hamtramck, 489 Mich 939 (2011). Nor did plaintiffs notice specify whether the alleged defect was located on the north side or south side of Huron Street. Smith, 11 Mich App at 452-453. We conclude that the circuit court erred by denying the City’s motion for summary disposition because plaintiffs notice to the City did not “specify the exact location ... of the defect” within the meaning of MCL 691.1404(1). See id.; Dempsey, 4 Mich App at 151-152. Nor was the photographic evidence provided by plaintiff in response to the City’s motion for summary disposition sufficient to cure the otherwise insufficient notice. The photographs were submitted more than 120 days after plaintiffs injury, and it was therefore improper for the circuit court to consider them as part of plaintiffs notice. MCL 691.1404(1); Burise, 282 Mich App at 654. This is true even if the untimely submission of the photographs did not prejudice the City in any way. Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007).
Because plaintiffs notice did not specify the exact location of the alleged defect within the meaning of MCL 691.1404(1), the notice was insufficient, plaintiff was not entitled to proceed against the City under the
Reversed and remanded for entry of judgment in favor of the City. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, a public question having been involved.
The denial of a motion for summary disposition brought pursuant to MCR 2.116(C)(7) on the basis of governmental immunity is appealable by right. MCR 7.203(A)(1); MCR 7.202(6)(a)(v).