I have filed a complex answer to an appeal in the Michigan Supreme Court addressing several key governmental immunity issues being litigated and addressed in Michigan. The Court of Appeals ruled in our favor and dismissed the suit against my client, but made several questionable statements in dicta in its opinion that we still may have to challenge if the Supreme Court gets past the fact that the Court of Appeals was correct on the lack of causation in plaintiff’s claim against the government.
Here is the brief filed last week.
Answer to Appeal in Menard v Imig, et al.
This is especially important in light of two other cases pending in the Supreme Court.
We are closely monitoring outcomes in the Michigan Supreme Court in WA Foote Memorial v Michigan Assigned Claim Plan and Wigfall v Detroit; those two cases will respectively address whether the 60-day provision in MCL 224.21 applies retroactively and whether there is to be strict or substantial compliance with the notice provision’s contents requirement under Rowland, or Plunkett. Obviously, we contend Streng and the 60-day provision would apply retroactively and jurisdictionally erase the plaintiff’s suit against Macomb. There is at least one other case being held in abeyance (a road commission case) waiting on the outcome of the WA Foote decision. We also contend Rowland applies and there must be strict compliance with the notice provision’s timing and content requirements (exact location of defect, exact nature of defect, nature of injuries, and all witnesses disclosed at the time of the notice). We argued that plaintiff failed to identify exact location, exact nature of defect, and all witnesses. We also challenged the amendment which essentially allowed plaintiff to add a defect three years after the accident and nearly three years after the notice. The COA followed the Plunkett standard in a footnote saying that the notice was sufficient under that standard. It ruled our argument concerning amendment was moot. Of course, we won on the issue of causation, but if the Supreme Court were to grant Plaintiff’s application, we have the right to treatment on appeal of all issues we raised. We also continue to raise the application by the trial court and the COA’s acquiescence in the “hybrid” (C)(7) / (C)(10) standard of review. Per Mack v Detroit, the government’s immunity is preexisting and jurisdictional and if the plaintiff fails to plead and prove in avoidance of immunity (which includes satisfaction of the notice requirements) then that should be it. The burden is not on the government to first prove it is entitled to immunity. The COA also disagreed with us on this in dicta, but the issue has never been fully addressed by the Supreme Court. At my suggestion, by way of an amicus brief, they had asked the parties to brief it up in the Yono case, but the Court ended up ruling there was no defect so they never really answered the standard of review question.
It is still and outstanding issue and the lower courts continue to apply the “hybrid” standard of review which is taken from cases that did not involve governmental immunity.r