Blohm v. Emmet County Board of County Road Commissioners

Jansen, J.

(concurring in part and dissenting in part). I concur with the majority that the notice provision regarding a defective highway claim applies to a claim involving death and that the 180-day provision in MCL 691.1404(3); MSA 3.996(104)(3) applies to this case for the reasons set forth by the majority. However, I respectfully dissent from the decision that defendant was actually prejudiced by plaintiffs failure to comply with the 180-day notice provision in this case. Defendant has not met its burden of showing actual prejudice in this case because it still has a valid and viable defense.

On appeal, plaintiff argues that defendant was not prejudiced by her failure to comply with the notice requirement. Our Supreme Court has recently readdressed the prejudice requirement of the notice *392provision in Brown v Manistee Co Rd Comm, 452 Mich 354; 550 NW2d 215 (1996). In Brown, our Supreme Court reaffirmed its decision in Hobbs v Dep’t of State Hwys, 398 Mich 90; 247 NW2d 754 (1976), where it held that, absent a showing of actual prejudice to the governmental agency, the notice provision is not a bar to the plaintiffs claim. Brown, supra, pp 356-357. Therefore, the holdings of both Hobbs and Brown require the governmental agency to show actual prejudice from the plaintiffs failure to give notice of the occurrence of the injury and defect. In Brown, supra, pp 368-369, the Court specifically held that the defendant road commission had not established that it suffered prejudice from the plaintiff’s failure to serve notice within the 120-day period because the road commission repaved the road before the expiration of the notice period.

The trial court in the present case concluded that prejudice had been established because two years had passed between the accident and the filing of the complaint, which was four times the length of the notice period. The trial court further stated that memories would have faded during that period, that the vehicle was no longer available for analysis, that photographs taken by the sheriff’s department had been destroyed, and that any markings on the road would have worn away. However, a closer inspection of the lower court record leads me to conclude that defendant has not been prejudiced by plaintiff’s failure to give it notice of the occurrence and defect within 180 days.

In this case, the accident occurred on May 2, 1992, at approximately 1:55 A.M. Immediately after the accident, deputies from the sheriff’s department were dis*393patched to the scene. A detailed report of the accident was completed by the deputies and is part of the lower court record. Presumably, those deputies can testify regarding their findings about the scene. Further, there is no dispute that the curve of the road remains the same as at the time of the accident. The day after the accident, photographs of the scene were taken. Defendant states that those photographs have been destroyed because they are routinely destroyed two years after the accident. If that is true, then the photographs were destroyed after the complaint was filed in this case because the complaint was filed less than two years after the accident. A review of the lower court record indicates that there are photographs (attached to the affidavit of Roy Rodd, engineer/manager of the Emmet County Road Commission) of the road taken on June 27, 1994. Moreover, a videotape depicting a drive through the area where the accident occurred was made on May 8, 1992. Plaintiff claims that the videotape is still in the possession of defendant, and defendant does not dispute this on appeal. Additionally, the driver of the car, Bradley Blohm, was not killed and presumably can also testify regarding the accident. I further note that while the vehicle is unavailable for analysis, this case concerns plaintiffs allegation that the curve in the road constituted a defective design and was hazardous.

In addition, it is the plaintiffs burden to prove a prima facie case. Notice provisions are designed to permit a governmental agency to gather evidence quickly in order to evaluate a claim. Brown, supra, p 362. In fact, our Supreme Court has stated that “[t]he only purpose that this Court has been able to posit *394for a notice requirement is to prevent prejudice to the governmental agency.” Id. (emphasis added). In light of this purpose of the notice provision, there has been no prejudice to defendant. Sheriffs deputies did, in fact, investigate the accident shortly after it occurred and there are records of those findings, including the deputies’ memories of their findings. Also, I cannot conclude that defendant has been deprived of its opportunity to defend against the claim. There is record evidence that Bradley Blohm was intoxicated at the time of the accident (with a blood alcohol content of 0.20 percent), that Paul Blohm was also intoxicated (with a blood alcohol content of 0.15 percent), and that Paul was not wearing his seat belt when he was thrown from the car. Further, the police report indicates that Bradley was speeding at the time he lost control of the car. Contrary to its claim, defendant can most definitely present a defense that the curve in the road was not a proximate cause of the accident.

Under these circumstances, I cannot agree that defendant has shown actual prejudice from plaintiff’s failure to file a notice within 180 days of her appointment as personal representative of decedent’s estate. There is ample evidence by which defendant can present a viable defense to this case. Accordingly, I would hold that plaintiff’s claim is not barred by the 180-day notice provision of MCL 691.1404(3); MSA 3.996(104)(3).

I would reverse the trial court’s order granting summary disposition in favor of defendant and remand for further proceedings.