Reich v. State Highway Department

194 N.W.2d 700, 386 Mich. 617, 1972 Mich. LEXIS 207

• Court: Michigan Supreme Court
• Decided: February 25, 1972
• Docket: 25 October Term 1971, Docket Nos. 52,701-52,703
• Status: Published

Opinions

Adams, J.

I. Facts and Proceedings

These cases challenge the constitutionality of the notice requirement of 1964 PA 170.

1. Reich v State Highway Department

On October 10,1966, on Highway US-45 in Ontonagon County, Patricia Reich suffered a whiplash injury when the car she was driving swerved out of control and collided with a tree. Claims on behalf of herself and her husband were filed December 12, 1966—63 days after the accident.

2. Knapp v State Highway Department

On August 22,1966, on Highway US-45 in Ontonagon County, Maxine Knapp and her three children (all under seven years of age) were injured when her car went out of control and overturned a number of times. Claims on behalf of the Knapps and their children were filed November 18,1966—88 days after the accident.

3. Baker v State Highway Department

On October 9, 1966, on Highway US-45 in Ontonagon County, Cynthia Baker and her five year old son were injured when her car went out of control, rolled over, and collided with a tree and a boulder. Claims on behalf of the Bakers and their son were filed December 12, 1966—64 days after the accident.

The three cases were consolidated. The Court of Claims granted motions for accelerated judgments because of plaintiffs’ failure to comply with the notice requirement of 1964 PA 170. On appeal to the Court of Appeals, that Court affirmed the lower court’s decision. (17 Mich App 619.) We granted a delayed application for leave to appeal. (384 Mich 786.)

II. Does the 60-day notice provision violate due process as applied to minors?

The issue of the accrual of a vested right under a remedial statute was decided in Minty v Board of State Auditors, 336 Mich 370 (1953), where it was held that the state’s waiver of sovereign immunity from liability of the state created a cause of action, and that a remedy for the same could not thereafter be denied.

In Kowalczyk v Bailey, 379 Mich 568 (1967), this Court held that 1948 CL 242.8; MSA 9.598¹ created a liability upon cities for injuries caused by their negligent failure to remove obstructions in their streets after notice thereof.

In Grubaugh v City of St. Johns, 384 Mich 165 (1970), a 19-year-old plaintiff was severely injured in an automobile accident, allegedly caused by a chuckhole in a street. Defendant city moved to dismiss Grubaugh’s complaint on the ground that-plaintiff had failed to serve written notice of claim within 60 days, as required by 1948 CL 242.8. Plaintiff answered that because of his injuries, he was incapacitated from giving notice within the required time limit. Justice T. M. Kavanagh, who was joined in his opinion by Justices Black and T. G. Kavanagh, and concurred with by Justices Dethmers and Adams, wrote:

“The primary issue raised below and saved for appeal in this cause is whether the 60-day notice requirement of § 8 of chapter 22 of the general highway statute is constitutionally infirm when applied to a plaintiff rendered mentally or physically incapacitated by the alleged tortious act of a state or municipal defendant giving rise to the asserted cause of action.” (P 167.)

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“ * * * we reject and overrule the reasoning under the rule in Moulter [v Grand Rapids, 155 Mich 165 (1908)], supra, and condemn the purely capricious and arbitrary exercise of legislative power whereby a wrongful and highly injurious invasion of rights is sanctioned and the litigant who fails to submit the required notice of claim is stripped of all real remedy.” (P 176.)

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“Since we dispose of this case on the basis of this plaintiff’s right to due process, we do not discuss the briefed argument that the 60-day notice requirement in every case violates the equal protection clauses of the state and Federal Constitutions. Such question will undoubtedly arise in some new case where a fully competent adult is the victim.” (Pp 176-177.)

The disabilities of minors, particularly of infants, have long been recognized and protected by the law. As to the minors in these cases, we adopt the reasoning of Justice T. M. Kavanagh in Grubaugh2 The 60-day notiee provision of the statute is constitutionally infirm as to minors.

III. Does the 60-day notice provision violate equal protection?

This Court discussed at length the principles governing equal protection questions in the case of Fox v Employment Security Commission, 379 Mich 579, (1967). See, also, Tomlinson v Tomlinson, 338 Mich 274, 278 (1953).

The object of the legislation under consideration is to waive the immunity of governmental units and agencies from liability for injuries caused by their negligent conduct, thus putting them on an equal footing with private tortfeasors. However, the notice provisions of the statute arbitrarily split the natural class, i.e., all tortfeasors, into two differently treated subclasses: private tortfeasors to whom no notice of claim is owed and governmental tortfeasors to whom notice is owed.

This diverse treatment of members of a class along the lines of governmental or private tortfeasors bears no reasonable relationship under today’s circumstances to the recognized purpose of the act. It constitutes an arbitrary and unreasonable variance in the treatment of both portions of one natural class and is, therefore, barred by the constitutional guarantees of equal protection.

Just as the notice requirement by its operation divides the natural class of negligent tortfeasors, so too the natural class of victims of negligent conduct is also arbitrarily split into two subclasses: victims of governmental negligence who must meet the requirement, and victims of private negligence who are subject to no such requirement. 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. 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.³

The Court of Appeals is reversed and the causes are remanded to the Court of Claims for trial. Plaintiffs shall have costs.

T. M. Kavanagh, C. J., and T. Gr. Kavanagh, Swainson, and Williams, JJ., concurred with Adams, J.

1 1948 CL 242.8; MSA 9.598: repealed and superseded by 1964 PA 1970; MOLA 691.1401 et seq.; MSA 3.996[101] et seq.

2 While not applicable to this case, we note that the legislature has amended the statute dealt with in Grubaugh. 1970 PA 155, adopted August 1, 1970, allows 120 days’ notice and allows even further time and proceedings on behalf of minors.

3 For a recent case in which the entire doctrine of sovereign immunity was overruled as in violation of the equal protection provision of the Fourteenth Amendment to the United States Constitution, see Krause v Ohio, 28 Ohio App 2d 1; 274 NE2d 321 (1971).