Court of Appeals Injects “Substantial Compliance” Back Into Highway Defect Exception Case Despite Mandate in Rowland v. Washtenaw County that “Actual Prejudice” Is Not Required and Plaintiffs Must Strictly Comply with the Notice Provision — Google Map Aerial with Blown-Up “Bubble” Photo Depicting the Defect With an Incorrect Description of its Location Was Sufficient

In this case, Plaintiff submitted a notice of a “highway defect” (a pothole), which he alleges caused him to crash his motorcycle resulting in personal injury.  Plaintiff provided a “notice” of the defect pursuant to MCL 691.1404(1), which specifies, among other requirements not pertinent here, that “[t]he notice shall specify the exact location and nature of the defect….”  Here, Plaintiff mistakenly stated the accident occurred (and the defect was located) in the eastbound lane of the roadbed.  Defendant, City of Lansing, argued this was insufficient to comply with the strict language of the notice provision.

I was at the oral argument for this case the day it was argued presenting another unrelated case.  The issue of “substantial compliance” came up.  Defendant argued that the notion of “substantial compliance”, i.e., that a plaintiff who substantially complies with the notice gives sufficient notice within the meaning of the statute, had been rejected by the Michigan Supreme Court in Rowland v. Washtenaw County Rd. Comm’n, 477 Mich. 197 (2007).  There was substantial colloquy regarding “substantial compliance” and the effect of Rowlandsupra on that concept.

The Court of Appeals found that the Plaintiff satisfied MCL 691.1404(1) by adequately communicating the location of the defect.  The majority curiously re-injects the “substantial compliance” standard back into this case by reasoning that the location of the defect (albeit incorrectly stated as existing in the eastbound rather than westbound lane), coupled with photographs showing the location of the defect (generally) (an aerial photo with a “bubble” depicting the pothole zoomed in as a close-up photograph), was sufficient, or adequate, to give the government notice.  The majority also states that Rowland merely addressed “actual prejudice” and did not affect a “substantial compliance” argument.

The dissenting judge (Judge Riordan) analogized this case to the situation subject to the Supreme Court’s order in Jakupovic v. City of Hamtramck, 489 Mich. 939 (2011).  There, the plaintiff had given a wrong address in the notice of the highway defect under MCL 691.1404(1).  The Court peremptorily reversed the Court of Appeals, noting that the statute requires notice of the “exact location” of the defect.  Plaintiff’s failure to state the proper address was non-compliant with the notice provision and he did not therefore have a right to bring suit.

Judge Riordan points out that the photographs are non-descriptive concerning the location, and could be any aerial photograph of any street in any urban area.  The close-up of the pothole likewise was not indicative of its true (or exact) location.  Since the Plaintiff’s notice failed to specify the exact location of the defect, Plaintiff was not allowed to proceed with a suit against the government.

I agree with Judge Riordan.  I think reversal is warranted based on his argument alone.  However, the more troubling issue in this case is the distinction made by the majority  between the concept of “prejudice” and “substantial compliance”.  “Prejudice” used in the context of these cases is the notion that in order to avail itself of the failure of statutory notice required to proceed in a suit claiming an exception to governmental immunity the government had to show it was prejudiced in some way by the failure of compliance with the notice provision.  In other words, the argument is that if the government did not in some way suffer prejudice by, for example, being unable to preserve evidence, take steps to remedy the defect, address the claim, set proper reserves and consider the costs, then it could not use non-compliance with the notice provision to avoid the lawsuit.  Rowlandsupra explicitly rejected the “prejudice” standard.  Actual, and strict, compliance with the notice provision was required in order for one to hail the government into court.

This concept that “substantial compliance” is different than “prejudice” is a growing trend in cases where the panel attempts to avoid the strict requirements of notice provisions and the manner in which they have been interpreted by the Supreme Court.  In my brief in Atkins v. SMART, 492 Mich. 707 (2012), a case addressing a different notice provision required to bring suit against transportation authorities, I addressed several Court of Appeals cases that had attempted to get around the significance of Rowland’s “no prejudice required” and “strict compliance” rulings.  I noted that all theories that attempted to get around the “strict compliance” standard inevitably returned to the notion of “prejudice”.  The concept of “substantial compliance”, I pointed out, is no different.  To say that a party “substantially complied” with the notice provision is just another way of saying to the government that the notice was suffficient, or, as in this majority’s view here, adequate, such that it should have been able to do everything it had to do to address the defect.  In other words, substantial compliance replaces strict compliance.

As I argued in my brief, the notion of “substantial compliance” is just another way of re-injecting the concept of “prejudice” back into the analysis concerning these cases because it is simply another way of saying that the plaintiff did enough such that the government should have known, and therefore, was not prejudiced by the failure of strict compliance with the notice provision.

I think the majority opinion here is wrong for this reason.  “Substantial compliance” or “adequate compliance” as the case may be, is another “equity” principle that is applied by the majority to make an end run around the justifiably harsh results of Rowland.

Judge Riordan’s dissent and the significance of the factual and legal conclusions in the decision make this case a good candidate for an appeal to the Michigan Supreme Court.

Read the opinion here:  Speelman v. City of Lansing

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