Marilyn E Hibbard v. City of Riverview

STATE OF MICHIGAN

COURT OF APPEALS

MARILYN E. HIBBARD and CHARLES K. UNPUBLISHED

HIBBARD, September 20, 2016

Plaintiffs-Appellees,

v No. 327027

Wayne Circuit Court

CITY OF RIVERVIEW, LC No. 14-011891-NO

Defendant-Appellant,

and

BENJAMIN ZOLYNSKY and THERESA

ZOLYNSKY,

Defendants.

Before: CAVANAGH, P.J., and SAAD and FORT HOOD, JJ.

PER CURIAM.

Defendant City of Riverview appeals as of right an order denying its motion for summary

disposition in this action under the Governmental Tort Liability Act, MCL 691.1401 et seq. We

reverse and remand for entry of summary disposition in favor of Riverview.

Plaintiff Marilyn Hibbard tripped on a raised sidewalk slab in front of 13828 Kingswood,

Riverview, Michigan, causing her to fall to the ground and break her right wrist and fracture her

left elbow. After several verbal communications with city officials, plaintiffs served written

notice on July 30, 2014. Later, Marilyn and her husband, plaintiff Charles Hibbard filed a

complaint against Riverview for negligence. Riverview filed a motion for summary disposition

on the basis that governmental immunity barred plaintiffs’ claim because plaintiffs failed to

satisfy the statutory presuit notice requirements. Specifically, Riverview maintained that

plaintiffs’ July 30, 2014 notice was not properly served, and it failed to identify Marilyn’s

injuries, a known witness, or the exact nature and location of the alleged defect. In response,

plaintiffs relied on the oral communications they had with city officials to cure the defects in the

written notice. The trial court denied Riverview’s motion, concluding that MCL 691.1404 did

not require the notice to be in writing. Riverview appeals.

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On appeal, Riverview argues that the trial court erred in denying its motion for summary

disposition because the notice of claim failed to comply with statutory requirements and was

improperly served. We agree.

This Court reviews matters of statutory interpretation de novo. Burise v City of Pontiac,

282 Mich App 646, 650; 766 NW2d 311 (2009). Likewise, a trial court’s grant or denial of a

motion for summary disposition is also reviewed de novo. Id. Riverview moved for summary

disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). Because the parties relied on

evidence beyond the pleadings in this matter, this Court must apply the standard of review

applicable to summary disposition under MCR 2.116(C)(7) or MCR 2.116(C)(10). Nuculovic v

Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010). “MCR 2.116(C)(7) tests whether a claim is

barred because of immunity granted by law, and requires consideration of all documentary

evidence filed or submitted by the parties.” Burise, 282 Mich App at 650. To avoid summary

disposition under MCR 2.116(C)(7), the plaintiff must allege sufficient facts to bring the claim

within the scope of an exception to governmental immunity. Id. MCR 2.116(C)(10) tests the

factual basis for the claim. Nuculovic, 287 Mich App at 61. “In reviewing a motion under MCR

2.116(C)(10), the trial court considers affidavits, pleadings, depositions, admissions, and other

evidence introduced by the parties to determine whether no genuine issue of material fact exists

and the moving party is entitled to judgment as a matter of law.” McLean v Dearborn, 302 Mich

App 68, 73; 836 NW2d 916 (2013).

Plaintiffs’ complaint involves the “highway exception” to governmental immunity. In

order to invoke the exception, an injured person must timely notify the governmental agency

having jurisdiction over the roadway of the occurrence of the injury, the injury sustained, the

nature of the defect, and the names of known witnesses. MCL 691.1404(1); Rowland v

Washtenaw County Rd Comm, 477 Mich 197, 200, 203-204, 219; 731 NW2d 41 (2007);

McLean, 302 Mich App at 74. MCL 691.1404 provides:

(1) 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.

(2) 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 governmental agency, anything to the contrary in the

charter of any municipal corporation notwithstanding.

Riverview argues that the form of the notice and the service of the notice failed to meet the

statutory requirements.

At the heart of this dispute is whether a claimant may satisfy the notice requirements

mandated by MCL 691.1404 by orally communicating the requisite information to the

potentially liable government agency. Specifically, plaintiffs rely on an informal conversation

held with the mayor of Riverview, Tim Durand. Durand noticed Marilyn’s cast while passing

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her house on a bicycle ride. Durand stopped to inquire about Marilyn’s injury and Marilyn

explained that she fell on a raised sidewalk in the neighborhood. Plaintiffs argue that the

information conveyed during the conversation with Durand was sufficient to cure any defect

with the content of the written notice.

As noted by the trial court and argued by plaintiffs, nothing in the statutory language

explicitly requires a written notice. Nonetheless, interpreting identical language in the public

building exception to governmental immunity, MCL 691.1406, this Court has observed that the

above-quoted language “patently implies that [the] elements of the required notice must be in

writing.” Ward v Mich State Univ (On Remand), 287 Mich App 76, 81; 782 NW2d 514 (2010).

When this Court is called upon to construe statutory language, “words and phrases as

may have acquired a peculiar and appropriate meaning in the law, shall be construed and

understood according to such peculiar and appropriate meaning.” Hannay v Dep’t of Transp,

497 Mich 45, 57; 860 NW2d 67 (2014), quoting In re Bradley Estate, 494 Mich 367, 377; 835

NW2d 545 (2013). Notably, the statutory language at issue in this case does not require that the

claimant merely give notice to the government agency of the occurrence of the injury. Instead, it

obligates the claimant to serve notice on the government agency containing specific information.

According to Black’s Law Dictionary, the term “serve” means “[t]o make legal delivery of (a

notice or process)” or “[t]o present (a person) with a notice or process as required by law.”

Black’s Law Dictionary (10th ed). As an oral notice is not tangible, it is incapable of being

delivered or meaningfully presented to a defendant.

To support their contention that MCL 691.1404 does not require written notice, plaintiffs

rely on this Court’s opinion in McLean, stating that “[n]otice need not be provided in any

particular form and is sufficient if it is timely and contains the requisite information.” McLean,

302 Mich App at 74. Plaintiffs’ reliance on McLean ignores the simple fact that the notice

involved in that case was not oral. Rather, McLean dealt with a written notice that articulated a

vague description of the alleged sidewalk defect but was deemed sufficient because it was

accompanied by color photographs that clearly depicted the defect. Id. at 70-71, 75-76. Thus,

the defendant, having received tangible documents from which the requisite information could

be gleaned, was served with sufficient notice of the location and nature of the defect. Id.

Moreover, responding to the defendant’s argument that the plaintiff contradicted facts

from her presuit notice during her deposition, the McLean Court declined to “base the

sufficiency of notice provided under MCL 691.1404 on the vagaries of human memory . . . .” Id.

at 76-77. Following the same theory, it would be impractical to allow a plaintiff to rely on an

oral notice to a government agency, as it would require the courts to base the sufficiency of the

notice on the “vagaries of human memory.” The underlying history in this case only serves to

bolster that point. During their depositions, plaintiffs’ recollections of their conversations with

Riverview’s representatives were limited. When they could not recall sufficient details to

establish communication of the statutorily required information during their depositions, they

attempted to supplement their damaging testimony with later affidavits.

Because the service requirement set forth in MCL 691.1404 implicitly requires that the

notice be in writing, the sufficiency of plaintiffs’ notice in this case is limited to the content of

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their July 30, 2014 letter and attachments—the only tangible notice that was purportedly served

upon Riverview. The notice stated:

Please allow this correspondence serve as written notice that our firm represents

the interests of Marilyn Hibbard relative to a fall which occurred on a public

sidewalk on June 21, 2014. Please consider this correspondence formal notice of

the incident. Attached hereto are photographs of the location of the fall. Please

note that subsequent remedial measures have occurred and apparently have been

had by the adjacent homeowner. You will note the incident occurred at the cross

roads of Kingswood and Hamilton in Riverview in front of the address of 13828

Kingwood [sic], Riverview, Michigan.

The written notice failed to meet the requirements of MCL 691.1404(1) because plaintiffs failed

to specify the injuries sustained or witnesses to the accident. Thus, plaintiffs’ claim fails.

Given our analysis regarding the content and form of the notice, we need not discuss

whether service was proper. However, we briefly address this issue in the interest of

completeness. Pursuant to MCL 691.1404(2), a claimant’s notice may be served “personally, or

by certified mail, return receipt requested” and service may be made upon “any individual . . .

who may lawfully be served with civil process directed against the governmental agency . . . .”

As a municipal corporation, MCR 2.105(G)(2) provides that Riverview’s mayor, city clerk, or

city attorney may lawfully be served with civil process on Riverview’s behalf. See also McLean,

302 Mich App at 78.

On appeal, Riverview argues that it was entitled to summary disposition in the trial court

because plaintiffs failed to properly serve their notice upon an authorized individual, as provided

by MCR 2.105(G)(2). It is undisputed that plaintiffs served their July 30, 2014 letter by certified

mail, return receipt requested, addressed to the city’s human resources director, Carol Mayerich,

with a copy directed to the city’s third-party claims adjuster. As neither a human resources

director nor a third-party claims adjuster may be lawfully served with civil process pursuant to

MCR 2.105(G)(2), we agree that plaintiffs failed to serve their notice in compliance with MCL

691.1404(2).

Plaintiffs note that MCR 2.105(G) also provides that “service of process may be made on

an officer having substantially the same duties” as the individuals expressly authorized to receive

service on the municipal corporation. Thus, according to plaintiffs, service was properly made

upon Mayerich because Durand, allegedly acting in his official capacity, directed plaintiffs to

contact her regarding Marilyn’s fall. As an initial matter, it is far from clear whether Durand was

acting in his capacity as Riverview’s mayor when he interrupted his bicycle ride to inquire about

Marilyn’s cast. However, to the extent that Durand was speaking in his official capacity during

his conversation with plaintiffs, plaintiffs’ argument is still lacking in merit, as it does not even

remotely suggest that Riverview’s human resources director had substantially the same duties as

its mayor, city clerk, or city attorney. Though a defendant is free to designate an agent to receive

service of process, that designation must be “authorized by written appointment or by law,” and

there is no indication in the lower court record that Mayerich was authorized by written

appointment or by law to receive service on Riverview’s behalf. See MCR 2.105(H); see also

McLean, 302 Mich App at 78-80 (finding subsequent communication directed to third-party

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administrator did not cure defects in the plaintiff’s initial written notice because the third-party

administrator was not authorized by court rule to receive service on the defendant’s behalf).

Reversed and remanded for entry of summary disposition in favor of Riverview. We do

not retain jurisdiction.

/s/ Mark J. Cavanagh

/s/ Henry William Saad

/s/ Karen M. Fort Hood

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