Blohm v. Emmet County Board of County Road Commissioners

Mackenzie, P.J. Plaintiff appeals as of right from a March 22, 1995, order of the Emmet Circuit Court granting summary disposition in favor of defendant. We affirm. This case arises from an automobile accident that occurred on May 2, 1992, at approximately 1:55 A.M. Plaintiffs decedent, her husband, was a passenger in a car driven by their son, Bradley. As Bradley was — 385 — driving on Mitchell Road in Springvale Township, he apparently was unable to negotiate a sharp downhill curve. The car crossed onto the paved shoulder and over a grass strip. It then became airborne and rolled over several times. The decedent, Paul Blohm, who was not wearing his seat belt, was thrown from the car, and the car eventually landed on top of him, killing him. It was also determined that Bradley had a blood alcohol level of 0.20 percent and the decedent had a blood alcohol level of 0.15 percent. Plaintiff was appointed the personal representative of the estate of Paul Blohm on October 8, 1992. On April 8, 1994, plaintiff filed her complaint against defendant and Emmet County. On April 10, 1995, the county was dismissed with prejudice by stipulation of the parties. In her complaint, plaintiff alleged that defendant violated its duty to maintain and design the road in a safe manner, alleging that the road was designed with a hazardous curve, without barriers, warnings, or signage, and without adequate grading and lighting near the curve. Defendant moved for summary disposition, arguing that the claim was barred by governmental immunity and that the claim was barred because plaintiff failed to comply with the notice provision of MCL 691.1404; MSA 3.996(104). The trial court granted summary disposition for defendant on the basis that plaintiff failed to comply with the notice provision and that defendant was prejudiced as a result. On appeal, plaintiff argues that the trial court erred in granting summary disposition in favor of defendant. Plaintiff argues that the notice provision regarding a defective highway claim does not apply to a claim involving death, and, in the alternative, that — 386 — defendant was not prejudiced by her failure to comply with the notice requirement. We first address plaintiffs argument that the notice provision does not apply to a wrongful death claim. The trial court ruled that the notice requirement applied to a wrongful death claim, and it held that the 180-day provision found in MCL 691.1404(3); MSA 3.996(104)(3) applied. We agree with the trial court. Plaintiffs claim is premised on the highway exception to governmental immunity, MCL 691.1402; MSA 3.996(102). Pursuant to MCL 691.1404(1); MSA 3.996(104)(1), an injured person must serve notice on the governmental agency of the occurrence of the injury and defect within 120 days of the injury. However, under MCL 691.1404(3); MSA 3.996(104)(3), the notice requirement is extended to 180 days from the date of the injury for injured persons under the age of eighteen or, if the person is physically or mentally incapable of giving notice, 180 days after the termination of the disability. The trial court ruled that because the decedent was physically incapable of giving notice, the 180-day provision applied. This Court has held that representatives of persons sustaining bodily injuries resulting in death may sue for negligence in failing to keep highways in reasonable repair and in a safe condition under the highway exception to governmental immunity. Pagano v Dep’t of State Hwys, 76 Mich App 569, 572-573; 257 NW2d 172 (1977); Phelps v Dep’t of State Hwys, 75 Mich App 442, 446-447; 254 NW2d 923 (1977). Because a wrongful death action may be brought under MCL 691.1402; MSA 3.996(102), it follows that the notice provision of MCL 691.1404; MSA 3.996(104) applies to a wrongful death action brought under the highway exception to — 387 — governmental immunity. Moreover, our Supreme Court has applied the notice requirement to wrongful death cases brought under the highway exception. See Hobbs v Dep’t of State Hwys, 398 Mich 90; 247 NW2d 754 (1976); Kerkstra v Dep’t of State Hwys, 398 Mich 103; 247 NW2d 759 (1976). The trial court’s ruling that the 180-day provision applied because Paul Blohm was physically incapable of giving notice was correct. Because Paul Blohm was physically incapable of giving notice, the time limit of 180 days set forth in MCL 691.1404(3); MSA 3.996(104)(3) applies once the disability of death is removed by the appointment of a personal representative. See MCL 600.2922(1), (2); MSA 27A.2922(1), (2) and DiPonio v Henry Ford Hosp, 109 Mich App 243, 251-252; 311 NW2d 754 (1981). The personal representative in this case was appointed on October 8, 1992, and the complaint was filed on April 8, 1994. Therefore, no notice was given to defendant within 180 days of October 8, 1992. Accordingly, the trial court did not err in applying the 180-day notice provision to plaintiff’s wrongful death claim. Next, plaintiff argues that the trial court erred in ruling that defendant was prejudiced by her failure to comply with the notice requirement. In Brown v Manistee Co Rd Comm, 452 Mich 354; 550 NW2d 215 (1996), our Supreme Court recently readdressed the prejudice requirement of the notice provision. In Brown, the Supreme Court reaffirmed its decision in Hobbs, supra, where it held that, absent a showing of actual prejudice to the governmental agency, the notice provision is not a bar to the plaintiff’s claim. Brown, supra, pp 356-357. Therefore, the holdings of both Hobbs and Brown require that — 388 — the governmental agency must show actual prejudice from the plaintiffs failure to give notice of the occurrence of the injury and defect. The trial court in the present case concluded that actual prejudice had been established because (1) there was a nearly two-year passage of time between the accident and the filing of the complaint (which was four times the length of time that would otherwise be allowed for notice of this type of incident), (2) memories would have faded during that period, (3) the vehicle involved in the accident was no longer available for analysis, (4) photographs taken by the sheriffs department had been destroyed, and (5) any markings on the road would have worn away. Notice provisions permit a governmental agency to be apprised of possible litigation against it and to be able to investigate and gather evidence quickly in order to evaluate a claim. Brown, supra, p 362; Hussey v Muskegon Heights, 36 Mich App 264; 193 NW2d 421 (1971). Prejudice refers to “ ‘a matter which would prevent a party from having a fair trial, or matter which he could not properly contest,’ ” Boje v Wayne Co General Hosp, 157 Mich App 700, 708; 403 NW2d 203 (1987), quoting from Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). See also Midura v Lincoln Consolidated Schools, 111 Mich App 558, 562; 314 NW2d 691 (1981). In this case we must look at proximate cause. The claim against defendant is that the curve in the road was hazardous. Defendant’s general investigation of the curve, accomplished by videotaped test, was not specific with respect to why or how the accident at issue occurred. Even if the curve was hazardous, such a hazard was not necessarily a proximate cause — 389 — of the accident at issue. The blood alcohol level of the driver — 0.20 percent seven hours after the accident — and the speed at which the vehicle was being driven, may have caused or contributed to the accident. By the time plaintiff filed her complaint, the vehicle involved in the accident could not be located, and the photographs taken by the sheriffs department the day after the accident had been destroyed. Had plaintiff filed her complaint within 180 days of her appointment as personal representative, presumably the photographs would not have been destroyed and it might have been possible to locate the vehicle. Had defendant been able to inspect the vehicle, it may have been able to determine through accident reconstruction and vehicle crush damage what happened to the vehicle, where it was damaged, how much it was damaged, and at what speed it was traveling at the time the driver lost control and went off the road. Given the fact that the driver was legally drunk, it cannot be assumed that he was driving safely and at posted speeds. Likewise, the missing photographs could have been utilized by defendant to reconstruct some of the officer’s measurements of the path and distance of travel, as well as the dynamics that the vehicle went through from the time control was lost to the time the vehicle came to rest. The photographs attached to the affidavit of Roy Rodd, taken more than two years after the accident, are not the missing police photographs and have limited value to defendant in defending against a hazardous road claim. In addition, the sheriffs department photographs were destroyed before the complaint was filed in this case. A review of the record shows that the accident — 390 — occurred on May 2, 1992, the complaint was filed on April 8, 1994, but defendant was not served until June 15, 1994 — two months past the two-year mark (at which the sheriffs department routinely disposes of photographs). Defendant could not, and should not be expected to, anticipate legal action in order to preserve evidence. Plaintiffs argument that defendant has not shown that the destroyed photographs would have aided its defense is without merit. As defendant points out, it cannot affirmatively demonstrate that lost evidence would aid it for the very reason that it has been lost. A videotape depicting a drive through the area where the accident occurred was apparently made on May 8, 1992, and plaintiff claims that this videotape could be used as evidence. However, the videotape was taken for the purpose of documenting the area in which the accident occurred; it was not done as part of an investigation to prepare for a lawsuit. Had defendant been timely put on notice, it could have hired experts to investigate the scene. The videotape would show where the car left the road, but little more. Therefore, while defendant may have filmed the area in general, it is with regard to the specifics of this accident that defendant is grappling. Plaintiff contends that because the purpose of notice provisions is to permit a governmental agency to gather evidence quickly, and because sheriffs deputies did, in fact, investigate the accident and collect some evidence, there is no prejudice. However, when the sheriffs department conducted its investigation of this accident, it was investigating an accident where a drunken driver ran off the road. Had defendant been timely notified of plaintiffs intent to sue on a hazard — 391 — ous road theory, a more thorough investigation could have been done — an investigation that, because of lost evidence, can no longer be conducted. Governmental entities are rarely in a financial position to investigate each and every accident in such detail as they would when defending against a lawsuit, and we decline to impose such a burden on them. Although plaintiff contests that there was not enough of a showing of prejudice, plaintiff does not articulate a standard for showing prejudice and does not, other than by mere speculation, contest that there was prejudice. We conclude that defendant was prejudiced by the delay in plaintiffs filing of her complaint, and the trial court correctly granted summary disposition. Affirmed. T. R. Thomas, J., concurred.