Order Michigan Supreme Court
Lansing, Michigan
October 23, 2009 Marilyn Kelly,
Chief Justice
138380 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
CARLA WARD and GARY WARD, Stephen J. Markman
Plaintiffs-Appellants, Diane M. Hathaway,
Justices
v SC: 138380
COA: 281087
Ct of Claims: 05-000187-MZ
MICHIGAN STATE UNIVERSITY,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the January 27, 2009
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and
we REMAND this case to that court for reconsideration of the defendant’s appeal in light
of this Court’s order on reconsideration in Chambers v Wayne County Airport Authority,
483 Mich 1081 (2009). In all other respects, leave to appeal is DENIED, because we are
not persuaded that the remaining question presented should be reviewed by this Court.
KELLY, C.J. (concurring).
I concur in the order vacating the judgment of the Court of Appeals and remanding
the case for reconsideration in light of this Court’s order on reconsideration in Chambers
v Wayne Co Airport Authority.1 I write separately to address the dissenting justices’
claim that the Court, by remanding in light of Chambers, is ignoring Rowland v
Washtenaw Co Rd Comm.2
The dissenting justices show that the notice requirements of MCL 691.1406, the
public building exception to governmental immunity, are similar to those of the highway
exception statute. They conclude that, because the latter provision was at issue in
Rowland, Rowland is controlling here. However, the highway exception statute is not
involved here. This case involves the building exception to governmental immunity.
1
Chambers v Wayne Co Airport Authority, 483 Mich 1081 (2009).
2
Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (2007).
2
While the dissenting justices may prefer to extend Rowland’s reasoning beyond the facts
and law involved in that case to those of this case, the Court is not required to do so.
Rowland is not binding here.
Moreover, the Court of Appeals based its decision in this case on this Court’s
December 19, 2008, order in Chambers.3 We vacated that order on June 12, 2009, when
addressing the plaintiff’s motion for reconsideration. Thus, because the Court of Appeals
relied on an order that is no longer controlling, the underpinning of its decision has been
swept away. Hence, the decision should be reconsidered in light of Chambers.
YOUNG, J. (dissenting).
Only in the legal order of Chief Justice Kelly’s creation would judges treat
differently identical notice provisions that address the same topic—governmental
immunity—and that appear in the same statute. To understand how disingenuous is
Chief Justice Kelly’s failure to apply this Court’s interpretation of the highway exception
to governmental immunity, MCL 691.1404(1), consistent with the nearly identical
building exception to governmental immunity, MCL 691.1406, let me quote the two
provisions side by side.
The notice provision at issue in this case, MCL 691.1406, provides, in part:
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.
Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (2007), applied the highway
exception notice provision, MCL 691.1404(1), which provides:
As a condition to any recovery for injuries sustained by reason of
any defective highway, the injured person, within 120 days from the time
the injury occurred . . . shall serve a notice on the 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.
3
Chambers v Wayne Co Airport Authority, 482 Mich 1136 (2008).
3
The Legislature enacted both provisions as part of the same statute, 1964 PA 70, and they
use nearly identical operative language.4 Indeed, the only difference in the operative
language of the two immunity provisions is that the word “responsible” modifies
“governmental agency” in the public building exception to governmental immunity. This
comparison corroborates Justice Markman’s claim that the provisions are “nearly
identically worded” and unmasks as false Chief Justice Kelly’s claim that a difference in
the provisions themselves distinguishes this Court’s interpretation of the plain language
of the notice requirement in Rowland from the nearly identical notice requirement
applicable to the instant case.
In Rowland, we held that the plain language of a statute controls its interpretation
and that, therefore, a requirement to provide written notice within 120 days as “a
condition to any recovery” involving a highway defect must be enforced. Rowland, 477
Mich at 201. Here, the public building exception requires the identical 120-day written
notice to the governmental agency. There is no question in this case that no notice was
“served” on the defendant within 120 days of the injury.
None but the naïve should be deceived that there is any reason to avoid applying
in this case the plain language of the statute or Rowland’s analysis of the nearly identical
sibling governmental immunity provision. Chief Justice Kelly’s idea that nearly identical
provisions in the same statute should receive different constructions because they
concern different aspects of governmental immunity would be laughable were it not so
destructive to the development of the predictable rule of law. The plain truth is that Chief
Justice Kelly and her majority dislike the limitation that the Legislature has placed on
lawsuits against governmental entities but refuse to say so openly. She is thus forced into
a dodge that cannot sustain scrutiny. If her argument were a real one, Chief Justice Kelly
would explain what textual difference in these two immunity provisions justifies a
different construction and thus result. She does not because she cannot.
MARKMAN, J. (dissenting).
On March 12, 2004, a hockey puck struck plaintiff in the eye at a college hockey
game at Michigan State University’s Munn Ice Arena. She claims that a section of the
protective plexiglas around the rink was missing, and if it had not been missing she
would not have been injured. Plaintiff brought suit against Michigan State University
under the public building exception of the governmental tort liability act (GTLA), MCL
4
The original notice period for each provision was 60 days, and the Legislature
subsequently amended each provision to extend the notice period to 120 days. 1970 PA
155.
4
691.1406. Defendant moved for summary disposition based on governmental immunity
and lack of statutory notice. The trial court denied defendant’s motion for summary
disposition and defendant’s motion for reconsideration. The Court of Appeals reversed,
concluding that plaintiff had not satisfied the statutory notice provision.
The notice provision of MCL 691.1406 states in relevant part:
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.
Interpreting the notice requirements of the highway exception statute, MCL 691.1404(1),
which are nearly identically worded to those of the public building exception statute,
MCL 691.1406, this Court stated that “the plain language of this statute should be
enforced as written.” Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 200 (2007).
Thus, when a statute requires notice within 120 days, it means 120 days. And when a
statute requires notice to be served on an individual who may be lawfully served with
civil process, it means that actual notice must be served on someone within the
governmental agency who has the authority to accept service.
Chief Justice Kelly contends that, because the highway exception and the public
building exception statutes are different provisions, the nearly identical wording of their
notice requirements should be interpreted differently. However, both provisions: (a)
require notice “within 120 days from the time the injury occurred”; (b) require that the
injured person “shall serve a notice upon the [responsible] governmental agency of the
occurrence of the injury and the defect”; and (c) require that such notice be served upon
an individual “who may lawfully be served with civil process.” That these separate
provisions can be found on different pages of the Michigan Code is hardly a basis for
failing to treat the interpretation of one as dispositive of the interpretation of the other.
Chief Justice Kelly’s basis for differentiating between these provisions is simply
incompatible with a rational judicial process.
In the instant case, more than nine months after the hockey game in which plaintiff
was injured, plaintiff’s counsel, in a December 30, 2004, letter addressed to “MSU Munn
5
Ice Arena,” alerted the “Arena” that his “office represents Carla Ward in the matter of
personal injuries she sustained as a result of an automobile accident on the above date.”
(Emphasis added.) Contrary to the requirements of the public building exception of the
GTLA, this letter failed to specify: (a) “the exact location”; (b) the “nature of the defect”;
(c) “the injury sustained”; and (d) any “names of witnesses known.” MCL 691.1406.
Further, the letter was not “served upon any individual . . . who may lawfully be served
with civil process” as required by MCL 691.1406. Moreover, even assuming the letter
provided sufficient notice to defendant, it arrived more than five months after the
statutory 120-day period had lapsed.
By remanding to the Court of Appeals for reconsideration, this Court continues to
chip away at clearly stated statutory notice requirements. See, e.g., Beasley v Michigan,
483 Mich 1025 (2009); Chambers v Wayne Co Airport Auth, 483 Mich 1081, 1081-1082
(2009). While it appears that the judicial winds may have changed on statutory notice
requirements, Rowland remains as Michigan law on this issue. Because the Court of
Appeals applied the clear language of MCL 691.1406 in determining that defendant is
entitled to summary disposition, I would deny leave to appeal.
CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.
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.
October 23, 2009 _________________________________________
l1020 Clerk