Highway exception to governmental immunity; Notice of intent (NOI) required under MCL 691.1404; Substantial compliance; Exact location & nature of the defect; McLean v Dearborn; Known witnesses

Holding that plaintiff’s NOI substantially complied with MCL 691.1404’s requirements, the court reversed summary disposition for defendant-City and remanded. Plaintiff was injured while riding his motorcycle on a city street. After his attorney timely served an NOI as required by statute, he sued defendant for negligence under the highway exception to governmental immunity. The trial court granted the City summary disposition on the basis the NOI failed to meet MCL 691.1404’s requirements. On appeal, the court concluded that, read as whole, the “NOI sufficiently describes the location and nature of the defect such that the City would have been able to find and repair it. Plaintiff described the location of the accident as ‘on the roadway and intersection of Field St and Henrie [sic] St.’ Although [his] description of the defect’s location could have been more precise, his NOI also included four close-up photographs of potholes—the alleged defects. These photographs provided exact representations of the defects allegedly at issue, and, like the photographs in McLean, one of them depicted a landmark—a sewer grate in the upper right-hand corner—that placed the pothole near one of two corners at Hendrie and Field.” The court further found that the NOI adequately identified witnesses known to plaintiff when it was drafted. The court noted there “is no language in the statute requiring that a plaintiff investigate any potential witnesses to the accident before serving a NOI. Plaintiff testified that his wife and son were called after the accident to take him home; they did not witness the accident themselves. As for the bystander who helped [him] at the scene, plaintiff stated he was not aware whether the bystander witnessed the accident. Thus, plaintiff was not required to identify the bystander in the NOI.”