Brown v. Manistee County Road Commission

Weaver, J.

Plaintiff, Billy D. Brown, was injured in a motorcycle accident on June 12, 1988. Brown was traveling on Sherman Street in Manis-tee County when he struck a large pothole filled with torn-up blacktop, causing him to lose control of his motorcycle. Brown brought suit on June 11, 1990, alleging that defendant, the Manistee County Road Commission, was negligent.

On September 5, 1991, defendant moved for *576summary disposition pursuant to MCR 2.116(C)(7). Defendant asserted that Brown had failed to comply with the sixty-day notice provision contained in MCL 224.21; MSA 9.121. The trial court found Brown was subject to the sixty-day notice provision, and that defendant was prejudiced by Brown’s failure to give notice because the road had been repaved sixty-one days after the accident. Brown now appeals as of right from the November 5, 1991, order granting summary disposition in favor of defendant. We affirm.

The question is whether Brown is subject to the sixty-day notice requirement set forth in MCL 224.21; MSA 9.121, such that Brown’s claim is barred for failure to give notice within the required statutory period.

MCL 691.1402; MSA 3.996(102) governs governmental liability for injuries sustained on defective highways. It provides that the "liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in . . . 224.21 of the Michigan Compiled Laws.” MCL 224.21; MSA 9.121 states in pertinent part:

That no board of county road commissioners, subject to any liability under this section, shall be liable for damages sustained by any person upon any county road, either to his person or property, by reason of any defective county road, bridge or culvert under the jurisdiction of the board of county road commissioners, unless such person shall serve or cause to be served within 60 days after such injury shall have occurred, a notice in writing upon the clerk and upon the chairman of the board of county road commissioners of such board ....

Brown argues that this provision is superseded *577by MCL 691.1404(1); MSA 3.996(104X1), another provision of the act relating to governmental liability, which provides that a notice must be served within 120 days as a condition to any recovery for injuries sustained by reason of any defective highway.

Statutes that relate to the same subject or share a common purpose, such as the statutes in the instant case, are in pari materia and must be read together as one law. Feld v Robert & Charles Beauty Salon, 174 Mich App 309, 317; 435 NW2d 474 (1989), rev’d on other grounds 435 Mich 352; 459 NW2d 279 (1990). If the statutes lend themselves to a construction that avoids conflict, that construction should control. Baxter v Gates Rubber Co, 171 Mich App 588, 590; 431 NW2d 81 (1988). When two statutes conflict, and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. People v Tucker, 177 Mich App 174, 179; 441 NW2d 59 (1989).

Here, MCL 224.21; MSA 9.121, the county road law, deals exclusively with boards of county road commissioners. Therefore, the sixty-day notice period prevails over the 120-day notice period.

The next question is whether Brown’s claim is barred under MCL 224.21; MSA 9.121 for failure to give notice. Our Supreme Court has upheld the constitutionality of such a notice requirement only where failure to give notice within the prescribed time results in actual prejudice to the defendant. See Hobbs v Dep’t of State Hwys, 398 Mich 90, 96; 247 NW2d 754 (1976); Kerkstra v Dep’t of State Hwys, 398 Mich 103, 106; 247 NW2d 759 (1976); Appel v Dep’t of State Hwys, 398 Mich 110, 112; 247 NW2d 762 (1976).

Here, defendant made a sufficient showing of actual prejudice. The road area on which the *578accident occurred had been resurfaced on August 12, 1988, sixty-one days after the date of Brown’s accident. Accordingly, defendant was unable to take photographs, examine the pothole, or perform other relevant tests on the surface of the road. Accordingly, we find the court properly granted defendant’s motion for summary disposition.

Defendant cross appealed, asking that we reverse the court’s denial of defendant’s prior motion for summary disposition. Our resolution of plaintiffs appeal makes the assignment of error moot. We affirm.

K. B. Glaser, J., concurred.