Court of Appeals Addresses Effect of Incapacity to Give Notice in Suit Under Highway Exception

In Hightower v Dep’t of Transportation, Unpublished Per Curiam Opinion of the Court of Appeals, issued April 16, 2020 (Docket No. 348224), the Court of Appeals addressed how a temporary incapacity affects tolling under the 120-day notice period in the Governmental Tort Liability Act (GTLA), MCL 691.1404(1) and (3).

The first subsection requires notice of a claim to be given within 120 days of the accident. The second mentioned section, subsection (3) “tolls” the period if the claimant is “physically or mentally incapable of giving notice” during the 120-day period, and effectively extends the period to allow a notice to be timely if given “not more than 180 days after the termination of the disability.” Slip Op. at 1.

As the Court explained, MCL 691.1404(3) expands the notice period only for those “who are incapable of complying with the 120-day period” in the first place. Slip Op. at 5. Here, the claimant was injured after his bike struck a pothole. He spent three days in the hospital. Afterwards, he signed his notice of a claim within the initial 120-day period from the time of his accident. However, he did not provide the actual notice to the Court of Claims as required by MCL 691.1404(1) until 151 days after his accident.

The Department of Transportation moved for summary disposition arguing that the claimant failed to give notice within the required 120-day period. The claimant argued that his period of three days of incapacity (his hospital stay) effectively allowed him to claim that he had 180 days from the date of his discharge to provide the statutory notice. He argued he was entitled to the 180-day period because he had a disability during the 120-day notice period and that the shorter period therefore had to yield to the longer period.  Slip Op. at 3. The trial court denied the government’s immunity motion.

The Court of Appeals reversed and rejected this reasoning. It held that the GTLA provides a broad grant of immunity to governmental entities and strict compliance with the notice provisions must be observed. The Court ruled that the 180-day provision only applied to a subset of claimants who are incapable because of the disability of giving notice within the initial 120-day period.

Importantly, the Court of Appeals panel reiterated the jurisdictional principles underlying governmental immunity. First, the Court cited Rowland v Washtenaw County Road Comm’n, 477 Mich 197, 200-201; 731 NW2d 41 (2007), noting that the availability of a cause of action is “expressly conditioned on compliance with the notice provision….” Slip Op. at 4. “[B]y failing to timely notify the department, [the claimant] never subjected it to any liability in the first place.” Id. at note 2, relying on Fairley v Dep’t of Corrections, 497 Mich 290, 297-298; 871 NW2d 129 (2015). Fairley complimented a long line of cases interpreting and applying statutory notice provisions in statutes allowing for suits against governmental entities as conditions precedent to lifting the jurisdictional veil of preexisting immunity that protects governmental functions. See also Rowland, supra; Atkins v SMART, 492 Mich 707; 822 NW2d 522 (2012) (a case which I argued in the Supreme Court and wrote about here Supreme Court Interprets 60-day Notice Provision in MCL 124.419), and McCahan v Brennan, 492 Mich 730; 822 NW2d 747 (2012).

As the Court said long ago “it being optional with the legislature whether it would confer upon persons injured a right of action therefor or leave them remediless, it could attach to the right conferred any limitations it chose.”, accord Rowland, 477 Mich at 212. Of course, this means that any failure of a condition precedent required by a statutory right to sue the government means that the courts do not even have jurisdiction to proceed to consider the merits of claimant’s cause of action. Because allowing a suit to proceed effectively nullifies the protections afforded the government from not only the potential liability but the burdens of litigation, a trial court must determine as a matter of law whether the claimant has fully satisfied all conditions precedent and all statutory elements of the exceptions to broadly granted immunity. The government will be entitled to automatic stay of any trial court decision denying immunity and has an automatic right to appeal such a decision to have the legal issues addressed.

Attorney Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade. Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, inter alia:

  • Menard v Imig, et al., (Michigan Court of Appeals 2018), briefed and argued by Carson J. Tucker (2018)
  • Richko v Wayne County (6th Cir. 2016), United States Supreme Court (2017), petition for certiorari settled before disposition, briefed by Carson J. Tucker for Wayne County
  • Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638)briefed and argued by Carson J. Tucker for Wayne County
  • Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker for SMART in the Supreme Court
  • Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals
  • Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals and Supreme Court
  • Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker for Wayne County in the Supreme Court

In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases, inter alia:

  • Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
  • State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker

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