A Detroit school bus driver claims she suffered fractures after falling into an uncovered manhole on October 7, 2013. Rose Withers said that after an accident, she stepped off the bus and walked around it to survey the damage. She fell into the uncovered manhole resulting in serious injuries, including five fractures. Due to injuries sustained, Ms. Withers was unable to work for several months.
On October 16, her attorney sent a letter via first-class mail to the “City of Detroit Law Department” giving notice of the incident. The city contended, in Circuit Court arguments and on appeal, that Withers’ notice failed to conform to critical requirements under the law, specifically that she sent the notice in the wrong manner (first-class mail), to the wrong place (the law department), and that she failed to identify the location of the manhole and adequately describe her injuries.
While Withers admitted that she sent the notice by first-class mail, she contended that her “substantial compliance” excuses her failure to follow the literal dictates of the statute. Although a Wayne County judge said the lawsuit could move forward, the appeals court disagreed, stating that the plaintiff must expressly comply with the delivery requirements. The court noted that the goals of the claims statutes are to provide entities with sufficient information to investigate and appropriately resolve claims, and those goals are satisfied only if an adequate claim is actually received by an appropriate entity representative.
The notice statute governing her claim, MCL 691.1404(2), mandates that notice of an injury sustained “by reason of any defective highway” must be “served upon any individual, either personally, or by certified mail, return receipt requested, who may be lawfully served with civil process directed against the governmental agency.”
The doctrine of “substantial compliance” says that if a good faith attempt is made to comply with the law, even though it may not fully comply with all technicalities of the law, the performance will still be considered complete if the essential purpose is accomplished. In reviewing the facts. Ms. Withers:
- Sent notification revealing that she was injured and that her injuries were caused due to an open manhole cover; the law department even acknowledged receipt of the letter.
- Mailed a Medicare form describing her injuries in somewhat more detail.
- Filed a complaint against the city asserting that the city negligently failed to remedy the uncovered manhole.
It seems to me that, while Ms. Withers failed to comply with the specific requirements of the statute, the Court of Appeals could certainly have opined that her claim “substantially complied” with the law (the Circuit Court judge ruled that the notice was sufficient). Clearly, Ms. Withers put the City of Detroit on notice that she was seeking to recover damages for personal injuries, medical expenses and lost income, even though amounts were not determinable at the time of her notice. Is “first class mail” really substantially different than “certified mail”, especially when the City acknowledges receipt? I sense that the case might not have been dismissed or appealed had the defective notice (sent to the “Law Department” rather than the “City Attorney”) been sent via certified mail, but I cannot be certain that this is true. Failure to send “certified” would be a reasonable argument for claims failure if The City argued that it did not actually receive the notice, but in this case, it acknowledged receipt. To me, notice is notice and this is a distinction without a difference. Wouldn’t some “lesser penalty” make more sense for this technical non-compliance rather than applying the “death penalty” to the case?
A second distinction without a difference exists relative to whom or where the notice was sent. The statute mandates that notification be sent to the “City Attorney”; Ms. Withers and her attorney notified “The City of Detroit Law Department”. The Court of Appeals made the distinction that the term “City Attorney” is a person, not a “department”. Is the distinction that obvious to a person of average intelligence, even to a lawyer? Again, considering that the City acknowledged receipt, considering that Ms. Withers was seriously injured and off work for months, shouldn’t common sense prevail, rather than permitting a legal technicality to prevent the pursuit of a rather serious case? How does this result advance the cause of safety? What do you think of this decision?
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.