Order Michigan Supreme Court
Lansing, Michigan
June 12, 2009 Marilyn Kelly,
Chief Justice
136900 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
MARC CHAMBERS, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 136900
COA: 277900
Wayne CC: 05-531729-NO
WAYNE COUNTY AIRPORT AUTHORITY,
Defendant,
Cross-Plaintiff-Appellant,
and
KNIGHT FACILITIES MANAGEMENT, INC.,
Defendant,
Cross-Defendant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s December 19,
2008 order is considered, and it is GRANTED. We VACATE our order dated December
19, 2008. On reconsideration, the application for leave to appeal the June 5, 2008
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, J. (dissenting).
In this case arising from a slip and fall in a puddle of water at the Detroit
Metropolitan Airport, I dissent from the order granting plaintiff’s motion for
reconsideration. This Court did not err in its December 18, 2008, order reversing the
judgment of the Court of Appeals for the reasons stated in the Court of Appeals
dissenting opinion. Defendant Wayne County Airport Authority is entitled to summary
disposition because plaintiff failed to serve on defendant a notice of the occurrence of the
injury and the nature of the defect within 120 days of his injury. An injured person must
serve such a notice as a condition to recovery under the public building exception to
governmental immunity, MCL 691.1406.
2
By granting reconsideration and reinstating the Court of Appeals decision, the
majority leaves intact a complete distortion of the statutory notice provision. Under the
decision upheld today, a governmental agency in Michigan now must divine the
intentions of any injured or potentially injured person and then notify itself that the
person may file a lawsuit. Any routine police or incident report that the government itself
creates may now be deemed a notice to the government of a potential lawsuit. This
decision subverts our Legislature’s clearly expressed mandate that “the injured person”
must serve a notice on the government as a “condition” to recovery. As a result,
governmental agencies in Michigan will likely be forced to devote limited public
resources to comply with a new, judicially invented duty in thousands of potential
lawsuits every year.
The notice provision of the public building exception, MCL 691.1406, provides:
As a condition to any recovery for injuries sustained by reason of
any dangerous or defective public building, the injured person, within 120
days from the time the injury occurred, shall serve a notice on the
responsible 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.
The notice may be served upon any individual, either personally, or
by certified mail, return receipt requested, who may lawfully be served with
civil process directed against the responsible governmental agency,
anything to the contrary in the charter of any municipal corporation
notwithstanding. [Emphasis added.]
In Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (2007), the plaintiff filed a
written notice after 140 days, thus failing to meet the 120-day deadline of the notice
provision in the highway exception to governmental immunity, MCL 691.1404(1). This
Court rejected earlier caselaw1 that had assumed notice provisions are unconstitutional if
they do not contain a prejudice requirement. Rowland, supra at 210. This Court agreed
with Justice Riley’s dissent in Brown v Manistee Co Rd Comm, 452 Mich 354 (1996),
that the notice provision is social legislation that has a rational basis. “‘Notice provisions
rationally and reasonably provide the state with the opportunity to investigate and
evaluate a claim.’” Rowland, supra, at 210, quoting Brown, supra at 370 (Riley, J.,
dissenting). Other reasons for requiring notice include “allowing time for creating
reserves for the [Motor Vehicle Accident Claims] Fund, reducing the uncertainty of the
extent of future demands, or even to force the claimant to an early choice regarding how
1
See Hobbs v Dep’t of State Hwys, 398 Mich 90, 96 (1976), and Brown v Manistee Co
Rd Comm, 452 Mich 354, 356-357 (1996).
3
to proceed.” Rowland, supra at 212, citing the dissent in the consolidated cases of Lisee
v Secretary of State and Howell v Lazaruk, 388 Mich 32 (1972). All these reasons
provided a rational basis that assured the constitutionality of the notice provision.
Rowland, supra at 212.
The notice provision at issue here is substantively identical to the provision in
Rowland. It requires “the injured person” to serve a notice on the responsible
governmental agency “within 120 days from the time the injury occurred.” Plaintiff did
not serve any notice. Rather, plaintiff claims, and the Court of Appeals held, that an
internal incident report, a report that defendant itself generated, was sufficient to establish
that plaintiff served a notice.
But it is beyond dispute that plaintiff, “the injured person,” did not serve this
internal incident report on an individual who may lawfully be served with civil process
directed against defendant. An officer for defendant simply prepared the report in the
course of his duties and submitted the report to defendant’s operations agent. Plaintiff
presented no evidence that either of these employees was authorized to accept service on
behalf of defendant.2
Nor did plaintiff’s informal oral statement to defendant’s officer following his fall
suffice to establish the statutorily required notice. MCL 691.1406 requires the injured
person to serve “a notice” on the governmental agency. The term “a notice” plainly
contemplates a written document. Moreover, the statute provides that “the notice may be
served upon any individual, either personally, or by certified mail, return receipt
2
Indeed, these lower level bureaucratic employees are not the individuals authorized to
accept service of civil process on behalf of defendant under MCL 600.1925(8):
Service of process upon public, municipal, quasi-municipal, or
governmental corporations, unincorporated boards, or public bodies, may
be made by leaving a summons and a copy of the complaint with
***
(8) the president, chairman, secretary, manager, or clerk, in the case of any
other public body organized or existing under the constitution or any law of
this state, when by statute no other method of service is specially provided.
The service of process may be made on any officer having substantially the
same duties as those named or described irrespective of their titles. In any
case, service may be made by leaving a summons and a copy of the
complaint with a person in charge of the office of any of the above-
described officers upon whom service may be made and sending by
registered mail a summons and a copy of the complaint addressed to such
officer at his office.
4
requested, who may lawfully be served with civil process directed against the responsible
governmental agency . . . .” An informal oral statement obviously cannot be “served”
personally or by certified mail. Black’s Law Dictionary (6th ed) defines “service” in
practice as:
The exhibition or delivery of a writ, summons and complaint,
criminal summons, notice, order, etc., by an authorized person, to a person
who is thereby officially notified of some action or proceeding in which he
is concerned, and is thereby advised or warned of some action or step
which he is commanded to take or to forbear.
This definition requires the delivery of a written document to the person authorized to
accept service to provide the requisite official notice.
Further, the requirement of MCL 691.1406 that a notice be served on one “who
may lawfully be served with civil process” on behalf of the governmental agency is
incompatible with informal oral notice. The service of civil process is the service of
formal written documents in order to commence suit.3 It follows that a notice must also
be a formal written document sufficient to make the governmental agency aware of the
potentially impending lawsuit. The judiciary should not eviscerate the legal definition of
the terms employed by the Legislature to allow completely informal oral statements to
form the requisite service of notice.
Plaintiff’s failure to serve a notice within 120 days bars his recovery. As we held
in Rowland, service of a notice is mandatory, and MCL 691.1406 plainly says that
service of a notice is “a condition to any recovery for injuries sustained by reason of any
dangerous or defective public building.” Plaintiff did not satisfy that condition, and he
thus may not recover for his injuries under the public building exception.
The failure of the Court of Appeals to enforce the statutory notice requirement, a
failure that the majority of this Court now leaves intact, entirely subverts the proper
functioning of a large governmental organization such as the defendant airport authority.
MCL 691.1406, by requiring an injured person to serve a notice on an individual who
may legally be served with process against the governmental agency, ensures that the
notice will be directed to appropriate personnel to evaluate the claim and prepare for
potential litigation. By contrast, a routine internal incident report may not alert the
governmental agency’s risk managers that the injured person is contemplating a potential
claim.
3
MCR 2.102.
5
Nor would the Court of Appeals reasoning be limited to cases arising under the
public building exception. If an internal incident report is now considered “a notice”
from “the injured person” under the public building exception, then it is fair to conclude
that a routine police report of a seemingly minor traffic accident or of a pedestrian trip
and fall could also constitute a notice for the purposes of the highway exception, MCL
691.1404(1).
The ramifications of this new, judicially invented duty of self-notification should
not be underestimated. Governmental agencies in Michigan are now tantamount to
agents for thousands of persons every year who might, one day, claim to be injured after
tripping, slipping, falling, or stumbling in a public building or on a public road or
sidewalk, or after a minor automobile accident. This new duty will arise whenever a
routine incident or police report has been prepared. Governmental agencies may have no
choice but to use limited public funds to hire additional staff to comb through thousands
of reports of seemingly minor incidents to discern whether each report is actually “a
notice” from “the injured person” that requires preparation for a possible lawsuit. Or
perhaps, to protect against the increased risk of litigation and the resulting depletion of
scarce public funds, governmental agencies will simply decline to prepare police and
incident reports on a regular basis, thereby depriving the public of the obvious benefits
that such reports serve.
Finally, the new majority’s failure to abide by Rowland continues a growing and
troubling trend. Rather than forthrightly overruling this decision, it is increasingly
becoming the practice of this Court to simply ignore precedents with which it disagrees.
See, e.g., VanSlembrouck v Halperin, 483 Mich ___ (2009), entered April 24, 2009
(Docket No. 135893), where the new majority ignored Vega v Lakeland Hospitals, 479
Mich 243, 244 (2007); Hardacre v Saginaw Vascular Services, 483 Mich ___ (2009),
entered March 27, 2009 (Docket No. 135706), where it failed to follow Boodt v Borgess
Med Ctr, 481 Mich 558 (2008); Sazima v Shepherd Bar & Restaurant, 483 Mich ___
(2009), entered April 3, 2009 (Docket No. 136940), where it failed to follow Chrysler v
Blue Arrow Transport Lines, 295 Mich 606 (1940), and Camburn v Northwest School
Dist, 459 Mich 471 (1999); and Juarez v Holbrook, 483 Mich ___ (2009), entered April
24, 2009 (Docket No. 137358), where it failed to follow Smith v Khouri, 481 Mich 519
(2008).
Accordingly, I would deny the motion for reconsideration. Plaintiff, “the injured
person,” did not serve “a notice” of the defect and his injury on the responsible
governmental agency within 120 days and thus did not satisfy the “condition” for
recovery prescribed in MCL 691.1406.
YOUNG and MARKMAN, JJ., join the statement of CORRIGAN, J.
YOUNG, J. (dissenting).
6
I fully concur with the dissenting statement of Justice Corrigan. I write separately
to note that the new majority’s decision in this case reflects this Court’s more recent
hostility to the notion of governmental immunity and any other legislatively imposed
measure that reduces the volume of civil litigation in this state. This decision hearkens
back to our predecessors’ refusal to recognize the legislative prerogative to regulate when
and how the state may be sued.4
Since its inception, the concept of sovereign immunity has given the state
government and its agencies the broadest possible protection from civil suit. The concept
of sovereign, or governmental, immunity dates back to English common law. It is based
on the premise that the sovereign is the law and, therefore, cannot be sued as of right in
its own courts.5 Rather, the sovereign must “expressly permit[] a suit against it.”6
Consistent with that concept, this Court, until the 1970s, historically held that the state
was entitled to place conditions on the suits it permitted against itself.7 For at least 70
years, this Court strictly upheld the plain language of such statutes that required prior
notice to the government agency as a precondition for suit.8
Despite this long history respecting governmental immunity, the modern Court has
eschewed legislatively imposed conditions on lawsuits and eroded the government’s
innate immunity. Beginning in 1970, justices of this Court began to question the due
process implications of treating plaintiffs who sue a governmental defendant differently
from those who sue a private entity.9 Subsequently, the Court held that the differentiation
between suits against private and governmental defendants violated the equal protection
rights of plaintiffs.10
The Court eventually acknowledged the intellectual incoherence of its
constitutional assault on governmental immunity and held that a notice provision might
4
See Young, A judicial traditionalist confronts Justice Brennan’s school of judicial
philosophy, 33 Okla City U L R 263, 269-271 (2008).
5
Odom v Wayne Co, 482 Mich 459, 477 (2008), citing Prosser, Torts (4th ed), § 131, p
970, and 4 Restatement Torts, 2d ch 45A, p 394.
6
Id., citing Prosser, supra, § 131, pp 971, 975-976, and Restatement, supra, § 895D and
comment a, pp 399-401. See also Young, supra at 269-270 and n 21.
7
Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 212 (2007), quoting Moulter v
Grand Rapids, 155 Mich 165, 168-169 (1908).
8
Id. at 205-206 (citing caselaw dating from 1897 through 1969).
9
Id. at 206, citing Grubaugh v City of St Johns, 384 Mich 165 (1970).
10
Id. at 206-207, citing Reich v State Hwy Dep’t, 386 Mich 617 (1972).
7
be constitutionally valid if it “serve[s] a permissible purpose, such as to prevent prejudice
. . . .”11 The Court held that the only possible legitimate purpose that a notice provision
could serve is to prevent prejudice against the governmental defendant. Accordingly, in
the 1970s, the Court judicially rewrote notice provisions in governmental immunity
statutes by engrafting a nonexistent “actual prejudice” element.12 The Court upheld this
judicially created element in governmental immunity notice provisions through 1996.13
Conceding that the “actual prejudice” element was not in the plain language of such
statutory notice provisions, the Court held that the Legislature had “acquiesced” in this
interpretation because it had not amended the governmental immunity statutes to
“overrule” the judicially engrafted element.14
The earlier Court’s ever evolving legal rationale to limit governmental immunity
notice provisions evinced a policy-driven desire to promote suits against government
defendants. The language of these provisions is clear and unambiguous; yet, the Court
went to great lengths “to justify and enforce its hostility” toward the concept of
governmental immunity and to supplant its policy choice for that of the Legislature.15
However, as this Court has more recently reiterated, governmental immunity
legislation is constitutionally valid because it is reasonably related to several legitimate
11
Id. at 208, citing Carver v McKearn, 390 Mich 96 (1976).
12
Hobbs v Dep’t of State Hwys, 398 Mich 90 (1976); Carver, supra.
13
Brown v Manistee Co Rd Comm, 452 Mich 354 (1996).
14
Id. at 366-368 and n 18. As we emphatically held in Donajkowski v Alpena Power Co,
460 Mich 243, 261 (1999), legislative acquiescence “is a highly disfavored doctrine of
statutory construction; sound principles of statutory construction require that Michigan
courts determine the Legislature’s intent from its words, not from its silence.” (Emphasis
in original.)
In any event, Brown’s conclusion based on the theory of legislative acquiescence
is legally infirm. Brown asserted that the actual prejudice element was only engrafted
onto the governmental immunity notice provision because the Court “could not posit
another purpose for the notice provision . . . .” Brown, supra at 367 n 18. Accordingly,
the Legislature could have subsequently clarified the statute by “further articulat[ing] the
notice provision’s purpose and possibly [creating] a presumption of prejudice” from the
lack of timely notice. Id. As aptly noted by the dissent in Brown, however, the
Legislature was powerless to remove the judicially created actual prejudice element from
the statute because Hobbs held that this element “saved the statute from constitutional
infirmity.” Brown, supra at 373 (Riley, J., dissenting).
15
Young, supra at 271.
8
government interests.16 Notice provisions afford the government “‘the opportunity to
investigate and evaluate a claim.’”17 They protect the government’s publicly funded
treasury from “‘unjust raids . . . by unscrupulous prosecution of trumped-up, exaggerated,
and stale claims, by requiring a claimant to give definite information . . . at a time when
the matter is fresh, conditions unchanged, and witnesses thereto and to the accident
within reach.’”18 More broadly, notice provisions are constitutional because the
Legislature created them as “quid pro quo for its relinquishment of immunity” in relation
to civil suits permitted under the exceptions to governmental immunity.19
Despite the various well-reasoned purposes notice provisions serve, justices of the
modern Court have boldly stated:
[W]e acknowledge frankly that statutes which limit access to the
courts by people seeking redress for wrongs are not looked upon with favor
by us. We acquiesce in the enforcement of statutes of limitation when we
are not persuaded that they unduly restrict such access, but we look
askance at devices such as notice requirements which have the effect of
shortening the period of time set forth in such statutes.[20]
Although commendable for its blunt honesty, such a statement undermines our
tripartite system of government and is acutely repugnant to the right of the people to
express their views through their elected representatives in the Legislature. This is rule
by a judicial oligarchy. It is completely contrary to our judicial function. Reversion to
overruled caselaw that proudly usurps the legislative function in this fashion is exactly
what the new majority has accomplished by ignoring Rowland and engrafting a
“substantial compliance” exception onto the notice provision in the public building
exception to governmental immunity.21
The new majority’s reversion is not surprising given its members’ past expressions
of distaste for governmental immunity principles. For example, members of the new
majority have repudiated the concept that immunity is a characteristic of government and
would foist the duty of raising immunity onto the government as an
16
Rowland, supra at 212. Moreover, we must find a statute constitutional if “any state of
facts either known or which could reasonably be assumed affords support” for the
holding. Id. (quotation marks and citations omitted).
17
Id. at 211, quoting Brown, supra at 370 (Riley, J., dissenting).
18
Id., quoting Ridgeway v Escanaba, 154 Mich 68, 72-73 (1908).
19
Brown, supra at 372 (Riley, J., dissenting).
20
Carver, supra at 99 (emphasis added), quoted with approval in Hobbs, supra at 96.
21
MCL 691.1406.
9
affirmative defense.22 The members of the new majority have not limited their
disapproval of legislative limitations on causes of action to those against the government.
They have challenged statutes of limitations, notice and tolling provisions, and express
limitations in the Legislature’s defined parameters on causes of action.23
As noted by Justice Corrigan, the exercise sub silentio of judicial power will reign
supreme in the new order the new majority desires to create.
For these reasons and those stated in Justice Corrigan’s statement, I dissent from
the new majority’s decision to vacate our prior, precedentially supported order to reverse
the Court of Appeals judgment and to simply deny leave to appeal without explanation of
the majority’s failure to follow Rowland.
CORRIGAN and MARKMAN, JJ., join the statement of YOUNG, J.
_____________________
22
See, e.g., Lash v Traverse City, 479 Mich 180, 201 (2007) (Kelly, J., dissenting in part)
(arguing that governmental immunity is the exception rather than the rule and the governmental
defendant must raise and prove immunity as an affirmative defense); Costa v Community
Emergency Medical Services, Inc, 475 Mich 403, 416-420 (2006) (Kelly, J., dissenting) (arguing
that governmental immunity is an affirmative defense and, therefore, it does not contradict the
purpose of the doctrine to require a governmental defendant to file an affidavit of meritorious
defense, MCL 600.2912e, in a medical malpractice case); Mack v Detroit, 467 Mich 186, 220-
222 (2002) (Cavanagh, J., dissenting) (expressing his preference for recent caselaw over the
centuries-old common-law concept of governmental immunity in arguing that the governmental
defendant must plead immunity as an affirmative defense).
23
See, e.g., Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378, 420-425 (2007)
(Weaver, J., dissenting) (arguing that this Court should follow the common-law discovery rule
regarding the accrual date of a claim for the purposes of a statute of limitations without regard to
the subsequent enactment of a highly comprehensive statutory scheme meant to preempt the
common law); Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 709 (2004)
(Kelly, J., dissenting) (suggesting we adopt a substantial compliance standard for notices of
intent in medical malpractice actions “if they serve the object of the statute and do not prejudice
the defendant”); Cox v Flint Bd of Hosp Managers, 467 Mich 1, 50-54 (2002) (Kelly, J.,
dissenting) (contending that the standards of care for a medical malpractice action under MCL
600.2912a should apply to neonatal nurses, even though those individuals are not engaged in the
practice of medicine as defined by the statute); McDougall v Schanz, 461 Mich 15, 52-55 (1999)
(Cavanagh, J., dissenting) (arguing that statutory standards or requirements for expert witness
qualifications in medical malpractice actions do not affect the substance of the cause of action
and, therefore, represent a legislative usurpation of judicial power).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 12, 2009 _________________________________________
0609 Clerk