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Road case by motorcyclist is dismissed because four companions not listed as witnesses

William and Kathryn Karwacki were hurt when William lost control of their motorcycle in a rough section of road.  They immediately sent a notice to the Department of Transportation, confirming their injuries and the location of the allegedly defective section of road in an attempt to compy with the 120 day notice provision.  They did not list their traveling companions as witnesses because it was their understanding that none of the companions had observed the incident. The DOT sought summary dismissal, arguing that their notice was defective because it omitted these names.  The DOT also argued that their claim that the road was defectively "rutted" should be dismissed because they had not made that claim part of the notice.  The trial judge disagreed on both counts and the DOT appealed.

The Court of Appeals majority reversed the lower court and threw out the Karwackis' lawsuit.  The two majority judges held that even though the traveling companions had not seen the actual incident, they were witnesses to the condition of the road and to the accident aftermath, and therefore were subject to mandatory notice.  The dissenting judge pointed out that this decision overturns 45-year old precedent limiting the term "witness" to someone who actually witnessed the incident first-hand.  The dissenter pointed out that the majority's logic places an illogical and insurmountable burden on injury victims to identify within 120 days every possible person who may have relevant information about an incident.

The Court also held that because the Karwackis' notice originally described the defect as "the use of far too much crack filler" and did not mention "rutting," the notice was defective and any evidence of rutting would have been excluded. 

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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