the defendant would need to show prejudice before the plaintiffs’ claim would be dismissed for failure to give notice under MCL 600.6431(3); MSA 27A.6431(3). The defendant cited CLS 1961, § 600.6434, the predecessor of MCL 600.6434(2); MSA 27A.6434(2
How later courts described this case
- the defendant would need to show prejudice before the plaintiffs’ claim would be dismissed for failure to give notice under MCL 600.6431(3); MSA 27A.6431(3). The defendant cited CLS 1961, § 600.6434, the predecessor of MCL 600.6434(2); MSA 27A.6434(2
Written by the judges who cited it.
The opinion
O’Hara, J.
(concurring in result). In my view each state in our federated union is sovereign. It retains every incident of sovereignty not specifically delegated to the Federal government or prohibited to the state. The applicable constitutional provision states:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” US Const, Am X.
Hence the state cannot be subject to tort liability unless it waives its immunity.
Because it waives its immunity for certain of its claimed torts does not mean that it cannot attach limitations to that waiver both as to conditions precedent to maintaining an action and designating the forum in which the claim against it can be litigated.
The equal protection clause of the Fourteenth Amendment 1 to the Federal Constitution or its Michigan constitutional counterpart, 2 as I see it, have nothing to do with suits against the state for allegedly defectively designed, constructed or maintained highways.
However sound this may be historically and constitutionally the ultimate judicial authority in this state holds to the contrary. See Reich v State Highway Department, 386 Mich 617 ; 194 NW2d 700 (1972). By this holding all other courts of our state are bound.
*585 Therefore when a majority of our Supreme Court says that a 60-day notice provision is not a valid condition precedent to the maintenance of a tort action against the state that is the law of this state.
It is my view, and I believe settled law, that tort claims against the state can only be maintained in the court of claims. Indisputably this case was started in the court of claims within the three years available to victims of private negligence.
The Supreme Court said in Reich, supra, at 623-624:
"Contrary to the legislature’s intention to place victims of negligent conduct on equal footing, the notice requirement acts as a special statute of limitations which arbitrarily bars the actions of the victims of governmental negligence after only 60 days [now 120 days]. The victims of private negligence are granted three years in which to bring their actions. See MCLA 600.5805; MSA 27A.5805. Such arbitrary treatment clearly violates the equal protection guarantees of our state and Federal Constitutions. The notice provision is void and of no effect.”
From the foregoing language I am forced to conclude that "equal footing” means exactly what the plain everyday universally accepted meaning of that term is. Equal is equal. It’s not pretty near equal, almost equal or practically equal. Thus I reason that "victims of governmental negligence” are entitled to the same three years in which to bring a tort action as "victims of private negligence” are granted. 3 I reason further that any notice requirement which is a condition precedent to the maintenance of a tort action against the *586 state, whether in the Court of Claims Act, 4 the sovereign immunity statute, 5 or any other legislative enactment, is as the Supreme Court said "a special statute of limitations” different from and in addition to that which is applicable to "victims of private negligence”.
Thus "it must follow, as the night the day”, 6 that such a limitation by reason of any required notice not required of victims of private negligence, is, under our Supreme Court’s holding, violative of the equal protection clauses hereinbefore cited, and constitutionally infirm.
I do not discuss Carver v McKernan, 390 Mich 96 ; 211 NW2d 24 (1973), nor Navarra v Board of Regents of the University of Michigan, 393 Mich 773 ; 224 NW2d 833 (1974), because neither involves a tort claim against the state and thus is not to the decisional point here involved.
For the reasons herein set forth I feel obligated to vote to vacate the order granting accelerated judgment in favor of the defendant sovereignty and remand the case to the court of claims. No costs.
US Const, art XIV, § 1.
Const 1963, art 1, § 2.
MCLA 691.1411; MSA 3.996(111) establishes a two-year limitations period for claims brought against the state under MCLA 691.1402; MSA 3.996(102).
MCLA 600.6431; MSA 27A.6431.
For example, see MCLA 691.1404; MSA 3.996(104).
Shakespeare, Hamlet, Act I, sc 3, Line 79.