The activist Supreme Court

    As if further proof were needed of the Michigan Supreme Court's contempt for injury victims, on October 11 the majority provided additional evidence with its holding in Ells v. Eaton County Road Commission.   Steven Ells sued on behalf of the Estate of Maynard Ells, claiming that his decedent was killed by a road defect.  Under the law as it was interpreted for more than two decades, the Road Commission had to be advised of the alleged defect in the road within months of the injury, but if notice was late, the case would not be dismissed unless the Road Commission could demonstrate that it suffered actual prejudice through the late notice.

      In Ells, the Road Commission was aware of the alleged defect and could not prove that it had been prejudiced by the late notice.  The Plaintiff Estate apparently relied upon this fact in filing suit despite the lack of a timely notice.  A few months later, the Supreme Court's activist majority overturned the decades-old rule requiring a showing of actual prejudice, and held that cases would be dismissed if the notice was late--regardless of any prejudice to the Road Commission.  Normally when there is a substantive change in the law overturning pre-existing precedent, the new rule is applied only prospectively to "new" cases filed after the Court declares the change.  In Ells, however, the conservative majority followed its own pattern of ignoring precedent, and it applied the "no prejudice required" rule retroactively, dismissing Ells' claim.