Driver injured by open manhole cannot sue State because of technical flaw in Notice provided by attorneys
Under Michigan law, the government and governmental employees are basically, and frequently immune from their own negligence. This immunity is only eliminated in certain exceptional situations where the Legislature has passed legislation conferring on citizens the right to sue. In Michigan, the basic exceptions to governmental immunity involve "gross negligence," defective roadways and public buildings, and negligent operation of a government-owned vehicle. Under Michigan's immunity statutes, the injury victim is required to provide notice of the claim by a specified procedure, with certain details, within a short period after the injury. Catherine and Robert Kulhanek were hurt when their car hit an open manhole on I-94, lost control and struck a cement wall: they hired attorneys and sent a notice to the State within the applicable 120-day period.
Even though the State did not claim any prejudice resulting from the details of the Kulhanek notice, it sought summary judgment of their injury claims because their notice was not served on the Court of Claims "in triplicate" and it did not describe their injuries. Citing back to the Engler Majority's decision to strictly interpret the statutory notice requirement, the Court of Appeals dismissed the Kulhaneks' injury claims. The Court concluded that it did not matter that the State knew about the incident within 10 minutes of its occurrence or that the Kulhaneks had mailed a copy of the police report to the appropriate agency: if the State has the right to declare itself "immune" from its own negligent actions, it also enjoys the right to establish any procedure that it deems appropriate to govern state-negligence claims.
Prior to the activism of the "Engler Majority," these notice provisions were enforced only in cases where the governmental actor(s) demonstrated prejudice resulting from a defect in notice. To us, that seems the more just and sensible course of action. There is no good reason to immunize governmental agencies and actors from responsibility for negligent actions that serve the public but cause serious injury to a single individual. We should all share in the cost of collective acts that benefit us at significant cost to one victim.