Filing actual lawsuit cannot substitute for filing notice against cityRegina Osborne sued the City of Pontiac after her bike struck a pothole in the road, causing her severe injuries. The City is legally responsible for maintaining roads in reasonably safe condition by statute, and injured road-users are required to give notice of their injury and claim within 120 days. For several decades, the latter notice requirement was ignored if the municipality had actual notice of the injury and defect, could investigate the condition on a timely basis, and had suffered no prejudice from the lack of notice. The Engler Majority of activists overturned this approach ten years ago, however, and ruled that the lack of notice automatically prevented any compensation for a claim--regardless of prejudice to the municipality.
Judge Christopher Murray, an activist Court of Appeals judge, apparently persuaded two of his cohorts to take this anti-citizen, anti-consumer, pro-government/insurer activism one step further this week. They overturned the lower court and ruled that since Osborne filed suit within the Notice period but without serving an actual "notice," her claim must be permanently dismissed. Although Osborne's lawsuit met all of the other "notice" requirements, it did not identify the known witnesses to the event. On that basis, the judges ruled that she was not "in strict compliance" with the immunity statute and could not demonstrate "substantial compliance." This was true even though the City had not even alleged that it was prejudiced by the failure to identify witnesses in the complaint.
Once again, an apparently valid claim brought by an innocent victim of negligence under a 50-year old statute is dismissed, with no recourse, simply because of what amounts to a "scrivener's error" that caused no harm or prejudice to anyone. We are in an era when "justice" is defined solely by whether arbitrary rules are followed--not by whether public policy is served: this is the same type of "justice" administered in the Communist Chinese police state.