Notice to a governmental entity of bodily injury caused by a defective highway; MCL 691.1404; Rowland v Washtenaw Cnty Rd Comm’n; Argument that defendant had constructive notice under MCL 691.1403

Holding that the trial court did not err in ruling that plaintiff failed to give the required notice of her injury to defendant-city under MCL 691.1404, the court affirmed summary disposition for defendant. It concluded that the case, which arose from plaintiff’s trip and fall while crossing a city street, was “squarely controlled by Rowland and the plain language of MCL 691.1404.” Plaintiff contended that her phone call to defendant 10 “days after her fall (the only communication with defendant within 120 days of her injury) satisfies the requirements of MCL 691.1404(1), because nothing in the language of the subsection requires written notice.” The court disagreed. It found that her argument ignored “the fact that MCL 691.1404(1) explicitly requires that a notice be served on the governmental agency. The very next subsection provides that such service may be made ‘either personally, or by certified mail, return receipt requested . . . .’” She did not offer any authority, and the court “found none, for the proposition that personal service in Michigan may be accomplished via a telephone call.” Thus, it did not need to “go beyond the plain language of the statute to find plaintiff’s argument meritless and to affirm the trial court’s grant of summary disposition.” But the court added that she “testified at her deposition that she did not remember calling defendant at all, and defendant’s call log contains only a terse phrase ‘Trip and fall on Marlborough/Jefferson.’ Viewed in the light most favorable to the plaintiff,” the evidence before the trial court showed that her “purported oral notice to defendant fell woefully short of providing an adequate description of the location and nature of the defect, and neglected entirely to provide a description of the injury suffered or a list of any known witnesses to the injury.” The court also rejected her argument under MCL 691.1403. Nothing in that statute “indicates that the notice requirement of MCL 691.1404 is waived or otherwise inapplicable if a plaintiff can show that the governmental agency knew or should have known of the defect. In fact, to hold otherwise would (1) render MCL 691.1404(1)’s requirements concerning notice of the nature of the injury and potential witnesses nugatory and (2) engraft a requirement onto the statute very similar to the actual prejudice requirement rejected by Rowland.”