Brown v. Manistee County Road Commission

550 N.W.2d 215, 452 Mich. 354

• Court: Michigan Supreme Court
• Decided: July 16, 1996
• Docket: 99566, Calendar No. 11
• Status: Published

Opinions

Cavanagh, J.

In this case, we granted leave to appeal to consider (1) whether the plaintiff’s action is governed by the sixty-day notice provision of MCL 224.21; MSA 9.121 or the 120-day notice provision of MCL 691.1404; MSA 3.996(104), (2) whether our rule in Hobbs v State Hwys Dep’t, 398 Mich 90; 247 NW2d 754 (1976), requiring a showing of prejudice, should be overruled, and (3) if we reaffirm Hobbs, whether there has been a showing of prejudice in the instant case. We hold that the 120-day notice provision applies in an action for personal injuries against a county road commission. Further, we reaffirm our decision in Hobbs, wherein this Court held that, absent a showing of actual prejudice to the governmental agency, the notice provision is not a bar to the claim. Because the governmental agency has not shown prejudice from the plaintiffs failure to give notice within this period, we reverse the trial court’s grant of summary disposition for the road commission, and remand the case for trial on the merits.

I. FACTS

On June 12, 1988, plaintiff Billy D. Brown was riding his motorcycle through Filer City, Michigan, near Manistee when he lost control attempting to avert a pothole. He filed a complaint on June 11, 1990, against defendant Manistee County Road Commission, alleging that he sustained serious injuries.

Brown claimed that the defendant was negligent because it failed to maintain the surface of the road under its control. Sixty-one days after the accident occurred, the road commission resurfaced the road. However, there is no allegation that it knew about the accident when it resurfaced the road.

On September 5, 1991, the defendant moved for summary disposition pursuant to MCR 2.116(C)(7), claiming that the plaintiff failed to comply with the sixty-day notice requirement of MCL 224.21; MSA 9.121.¹ On November 5, 1991, the trial court held that the plaintiff was subject to the sixty-day notice provision, that the defendant was prejudiced by the plaintiff’s failure to serve notice, and thus it granted the defendant’s motion for summary disposition. The plaintiff appealed in the Court of Appeals, and the defendant cross appealed the decision of the trial court with respect to which notice provision gov-emed. The Court of Appeals affirmed the decision of the lower court. 204 Mich App 574; 516 NW2d 121 (1994). We granted leave to appeal,² and reverse the decision of the Court of Appeals.

n. THE 120-DAY PROVISION GOVERNS

We begin with the fundamental principle that governmental agencies are statutorily³ immune from tort liability.⁴ The Legislature has, however, provided exceptions to immunity, including liability for failure to properly maintain highways⁵ and failure to maintain county roads⁶ in reasonable repair. As a condition of this particular waiver of immunity, qualified by Hobbs, the Legislature requires notice of the alleged injury and defect to be served on the appropriate governmental agency. However, the two potentially governing statutes in this case provide different notice periods. MCL 224.21; MSA 9.121, addressing county road commission liability, compels the injured party to file a notice of the claim with the clerk and the chairman of the board of county road commissioners within sixty days of the injury.* ⁷ MCL 691.1404; MSA 3.996(104), addressing the identical liability for the state, its political subdivisions (including county road commissions),⁸ and municipal corporations,⁹ requires the injured party to file a notice of the claim with a governmental agency within 120 days of the injury.¹⁰

In the present case, the trial court denied the defendant’s motion for summary disposition on the basis of plaintiff’s failure to comply with the 120-day notice provision. It held that the county was not prejudiced by repavement of the road before the expiration of the notice provision.¹¹ However, if the sixty-day notice provision applies, the defendant may have been prejudiced because after the road was repaved, it was unable to photograph, examine or otherwise evaluate plaintiff’s claim. We, therefore, must determine with which notice provision the plaintiff was required to comply. In doing so, we remain loyal to this Court’s recent commitment “to interpret the current immunity statute and its exceptions in a manner consistent with the intent of the Legislature.” Scheur-man v Dep’t of Transportation, 434 Mich 619, 627; 456 NW2d 66 (1990).

A

We have previously discerned the legislative intent “to provide uniform liability and immunity to both state and local government agencies.” Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 614; 363 NW2d 641 (1984). We, therefore, note that the distinct notice periods in the two statutes are suspect because it is clear that MCL 691.1404; MSA 3.996(104) and MCL 224.21; MSA 9.121 govern identical causes of action for defective road and highway maintenance. By providing different notice periods, the legislation divides injured persons into two classes: those injured on a defective road controlled by a county road commission and those injured on a defective road controlled by other governmental agencies. Accordingly, we must determine whether this distinction implicates the Equal Protection Clause.¹²

Unless the legislation creates a “classification scheme,” or “impinges upon the exercise of a fundamental right,” it is “accorded a presumption of constitutionality, and is reviewed by applying a rational basis standard.”¹³ Doe v Dep’t of Social Services, 439 Mich 650, 662; 487 NW2d 166 (1992). This presumption requires the court to inquire whether “ ‘any state of facts either known or which could reasonably be assumed affords support’ ” for the distinction between the notice provisions. Shavers v Attorney General, 402 Mich 554, 613-614; 267 NW2d 72 (1978).¹⁴

The only purpose that this Court has been able to posit for a notice requirement is to prevent prejudice to the governmental agency:

[A]ctual prejudice to the state due to lack of notice within 120 days is the only legitimate purpose we can posit for this notice provision .... [Hobbs, supra at 96.]

Notice provisions, therefore, permit a governmental agency to gather evidence quickly in order to evaluate a claim. In contravention of the stated purpose of the notice provision in Hobbs, defendant claims that another purpose for the notice provision is to enable the county to remedy any road defects and prevent future injury. A county cannot be prejudiced with respect to the injured party’s claim, as required by Hobbs, to enforce the notice provision because of the possibility of a future injury. A future injury does not affect a governmental agency’s ability to defend itself against the original claim.

The notice provision has the same purpose, therefore, irrespective of whether the action is brought against the state, a city, township, or county road commission. However, an injured person with a negligent highway cause of action against a “political subdivision” must comply with the 120-day notice provision in MCL 691.1404; MSA 3.996(104), whereas a person with an identical cause of action against a county road commission must comply with the sixty-day notice provision in MCL 224.21; MSA 9.121. Thus, a person injured in a county in which there is no county road commission would be required to file notice of the claim within 120 days, whereas an identical person injured in a county that has a county road commission would be required to provide notice within sixty days to the county road commissioner.

Therefore, despite a presumption of constitutionality, we are unable to perceive a rational basis for the county road commission statute to mandate notice of a claim within sixty days. During oral argument, attorney for defendant asserted that one could only “surmise” that the distinction is justified by the county road commission’s responsibility for “many miles of rural road.” However, we believe that there are no “facts either known or which could reasonably be assumed” that indicate a road commission requires a shorter notice period merely because it is responsible for rural roads.¹⁵ Shavers, supra at 613-614. This fact bears no relationship to the stated purpose of the notice provision. There may be no dispute that the governmental agencies under MCL 691.1401(e); MSA 3.996(101)(e) are likewise responsible for many miles of rural roads, highways, and streets. Accordingly, the distinct sixty-day notice provision required for claims against a county road commission is unconstitutional.

B

We must now determine whether the 120-day notice provision is reasonable. Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973). In Carver, the Court held that a notice provision with a legitimate purpose “does not necessarily violate the constitution.” Id. at 100. The Court held, however, that “even though some notice requirement may be permitted, a particular provision may still be constitutionally deficient.” Id. Upholding the six-month notice requirement of the accident claims act, MCL 257.1118; MSA 9.2818,¹⁶ the Court also noted that a particular notice provision may be unreasonable if “the time specified in the notice [provision is] for an extremely short period . . . .’’Id.

We do not believe that a 120-day notice provision is unreasonably short. Both the six-month notice provision in Carver and the present 120-day notice provision provide a claimant sufficient time to serve the governmental agency with notice of an alleged injury and corresponding defect. Our decision is clearly supported by this Court’s subsequent decision in Hobbs, supra, in which we upheld the exact 120-day notice requirement of MCL 691.1404; MSA 3.996(104). Accordingly, we would hold that the plaintiff’s cause of action is subject to the 120-day notice provision.

m. HOBBS IS REAFFIRMED

We do not agree with the conclusion of the dissenting opinion that Hobbs should be overruled; rather, the doctrine of stare decisis mandates its reaffirmance.¹⁷ Additionally, despite the Legislature’s ability to change the statutory language or disapprove of this Court’s interpretation of § 4, it has acquiesced in the Hobbs decision for nearly twenty years.

This Court has stated on many occasions that “ ‘[u]nder the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.’ ” Boyd v W G Wade Shows, 443 Mich 515, 525, n 15; 505 NW2d 544 (1993), quoting People v Jamieson, 436 Mich 61, 79; 461 NW2d 884 (1990). Further, this Court has stated that it “will not overrule a decision deliberately made unless [it] is convinced not merely that the case was wrongly decided, but also that less injury would result from overruling than from following it.” Boyd at 524 (citation omitted).

Moreover, this Court has consistently opined that, absent the rarest circumstances, we should remain faithful to established precedent. We have stated:

“The rule of stare decisis establishes uniformity, certainty, and stability in the law .... Only in the rare case when it is clearly apparent that an error has been made, or changing conditions result in injustice by the application of an outmoded rule, should we deviate from following the established rule.” [People v Collins, 438 Mich 8, 41-42; 475 NW2d 684 (1991) (Cavanagh, C.J., dissenting), quoting Parker v Port Huron Hosp, 361 Mich 1, 10; 105 NW2d 1 (I960).]

With these principles in mind, we do not believe that Hobbs should be overruled. When this Court decided Hobbs in 1976, it carefully examined the notice provision and the reasons justifying it. In that case, this Court deliberately decided that actual prejudice to the governmental agency resulting from lack of notice within 120 days was the only legitimate purpose it could posit for the notice provision. Further, this Court deliberately decided that, unless actual prejudice is shown, the plaintiffs claim is not barred by failure to give notice within the requisite period.

We are not convinced that Hobbs was wrongly decided. Further, we believe that more injury would result from overruling it than from following it. The rule in Hobbs has been an integral part of this state’s governmental tort liability scheme for almost two decades. It should not be lightly discarded. Although the law of governmental tort liability in this state has changed over the years, the continued validity of the Hobbs rule will not result in injustice. Rather, a reaffirmance of the rule will maintain the uniformity, certainty, and stability in the law of this state.

Further, we emphasize that the Legislature has not changed the language of § 4 since Hobbs was decided.¹⁸ For decades, this Court has recognized that stare decisis applies to decisions construing statutes, especially where the Legislature acquiesces in this Court’s construction by its failure to change the language of the construed statute. See Boyd at 525, citing Consumers Power Co v Muskegon Co, 346 Mich 243; 78 NW2d 223 (1956). Further, this Court has stated:

“When, over a period of many years, the Legislature has acquiesced in this Court’s construction of a statute, the judicial power to change that interpretation ought to be exercised with great restraint. On more than one occasion our Court has quoted with approval the statement that stare decisis ‘is especially applicable where the construction placed on a statute by previous decisions has been long acquiesced in by the legislature, by its continued use or failure to change the language of the statute so construed, the power to change the law as interpreted being regarded, in such circumstances, as one to be exercised solely by the, legislature.’ ” [Boyd at 525-526, quoting Dean v Chrysler Corp, 434 Mich 655, 664; 455 NW2d 699 (1990), quoting Consumers Power Co v Muskegon Co at 251, quoting 21 CJS, Courts, § 214, pp 388-390. See also In re Clayton Estate, 343 Mich 101, 107; 72 NW2d 1 (1955).]

Because the Legislature has not reacted to this Court’s interpretation of § 4 in the nearly twenty years since Hobbs was decided, we conclude that the Legislature has acquiesced in our interpretation of the statute. Smith v Detroit, 388 Mich 637, 650; 202 NW2d 300 (1972). Apparently, the Legislature has been content with the way this Court has interpreted § 4.¹⁹

IV. CONCLUSION

We reverse the holding of the Court of Appeals that the sixty-day provision applies, and hold that the 120-day notice provision applies to lawsuits against a county road commission. Further, we hold that Hobbs is still good law. Finally, we hold that the defendant road commission has not established that it has suffered prejudice from the plaintiff’s failure to serve notice within the 120-day period, because it repaved the road before the expiration of the notice period.

We remand for trial on the merits.

Brickley, C.J., and Levin and Mallett, JJ., concurred with Cavanagh, J.

1 On March 18, 1991, the trial court denied a previous defense motion for summary disposition on the basis of the plaintiff’s failure to comply with the 120-day notice requirement. MCL 691.1404; MSA 3.996(104).

2 449 Mich 860 (1995).

3 Common-law sovereign immunity was abrogated by statute. Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976).

4 Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise of discharge of a governmental function. [MCL 691.1407(1); MSA 3.996(107)(1).]

For a review of sovereign immunity and its origins and development in this state, see Ross v Consumers Power Co (On Reheamng), 420 Mich 567, 618; 363 NW2d 641 (1984).

5 MCL 691.1402; MSA 3.996(102) provides in relevant part:

Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency. . . . The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.

6 MCL 224.21; MSA 9.121 specifically addresses the county road commission’s liability and states in relevant part:

It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel.

7 [N]o board of county road commissioners, subject to any liability under this section, shall be liable for damages sustained by any person upon any county road, either to his person or property, by reason of any defective county road, bridge or culvert under the jurisdiction of the board of county road commissioners, unless such person shall serve or cause to be served within 60 days after such injury shall have occurred, a notice in writing upon the clerk and upon the chairman of the board of county road commissioners of such board, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such iiyuries as far as the same has become known, the names of the witnesses to said accident, if any, and that the person receiving such injury intends to hold such county liable for such damages as may have been sustained by him. It is the intention that the provisions of this section shall apply to all county roads whether such roads become county roads under chapter 4 of the general highway laws .... [Emphasis added.]

8 “Political subdivision” means any municipal corporation, county, county road commission, township, charter township, school district, community college district, port district, or metropolitan district, transportation authority, or any combination thereof .... [MCL 691.1401(b); MSA 3.996(101)(b).]

On July 1, 1986, the Legislature amended this definition to include “county road commission.” Actions against a county road commission would seemingly be within the statute’s purview. Notwithstanding this amendment, a reference in MCL 691.1402; MSA 3.996(102) to MCL 224.21; MSA 9.121 for “liability, procedure and remedy as to county roads under the jurisdiction of a county road commission” remains. This language is clear and unambiguous, therefore, it is not susceptible to statutory construction: “When a statute is clear and unambiguous, judicial construction or interpretation is unnecessary and therefore, precluded.” Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).

9 “Municipal corporation” means any city, village, township or charter township, or any combination thereof, when acting jointly. [MCL 691.1401(a); MSA 3.996(101)(a).]

10 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, except as otherwise provided in subsection (3) 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. [MCL 691.1404(1); MSA 3.996(104)(1).]

11 Defendant essentially prejudiced itself by repaving, albeit unknowingly, before the expiration of the notice period in this particular case.

12 This is not the same equal protection issue raised in Reich v State Hwy Dep’t, 386 Mich 617; 194 NW2d 700 (1972). In Reich, the Court held that the Equal Protection Clause was violated because notice requirements placed tortfeasors in two arbitrary classes: “private tortfeasors to whom no notice of claim is owed and governmental tortfeasors to whom notice is owed.” Id. at 623. This Court is no longer persuaded that notice requirements are unconstitutional per se. Hobbs, supra.

13 Social or economic legislation is generally subject to review under traditional equal protection tests, i.e., whether the legislation may be reasonably justified. People v Perlos, 436 Mich 305; 462 NW2d 310 (1990).

14 Citing United States v Carolene Products Co, 304 US 144; 58 S Ct 778; 82 L Ed 1234 (1938).

15 Moreover, this arbitrary distinction does not even apply to Wayne County.

16 This rationale applies equally to claims brought pursuant to the governmental liability act. Hobbs, supra.

17 In Boyd v W G Wade Shows, 443 Mich 515, 526, n 16; 505 NW2d 544 (1993), this Court quoted with approval Burnet v Coronado Oil & Gas Co, 285 US 393, 406; 52 S Ct 443; 76 L Ed 815 (1932) (Brandéis, J., dissenting), for the premise:

“Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation.”

18 In Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), this Court held that notice provisions are not necessarily unconstitutional. The provision may be constitutional if there is a legitimate purpose for it, and if the time specified is not an unreasonably short period. It was in Carver that we recognized that a governmental agency could be prejudiced by a plaintiff’s failure to give notice. We held that the governmental agency must have the opportunity to show prejudice, and, if prejudice is shown, the claim will be barred.

When Hobbs was decided three years later we held:

The rationale of Carver is equally applicable to cases brought under the governmental liability act. Because actual prejudice to the state due to lack of notice within 120 days is the only legitimate purpose we can posit for this notice provision, absent a showing of such prejudice the notice provision contained in MCL 691.1404; MSA 3.996(104) is not a bar to claims filed pursuant to MCL 691.1402; MSA 3.996(102). [Id. at 96.]

The difficulty we experienced in Hobbs was that we could not posit another purpose for the notice provision other than to prevent prejudice to the state. If the Legislature was not happy with our presumption, it could have responded in some fashion to the Hobbs decision. It could have further articulated the notice provision’s purpose and possibly have created a presumption of prejudice to the governmental agency from the plaintiffs’ failure to give notice within 120 days. However, not only has the Legislature not attempted to revise the statute to respond to Hobbs, it also has not even criticized Hobbs in later legislative enactments or amendments in the almost twenty years since it was decided.

19 As this Court stated in Sheppard v Michigan Nat’l Bank, 348 Mich 577, 631-632; 83 NW2d 614 (1957), citing Twork v Munising Paper Co, 275 Mich 174, 178; 266 NW 311 (1936):

When the Supreme Court has placed an interpretation on a statute over a considerable period of years it may indulge in the judi- ' cial assumption that the legislature has been content with that interpretation because of its failure to exercise its independent prerogative to restate the provision.