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Lawyers’ Corner: Governmental Immunity in Kosis v City of Livonia

As a general rule, you can’t sue the government for not doing its job. Unless, that is, you are on a highway. A recent decision by the Michigan Court of Appeals addresses the “Highway Exception” to governmental immunity and how it applies to motorcycle accidents, even when there are no cars involved.

Unlike the Michigan No-Fault Act, state laws on governmental immunity don’t require a motor vehicle. So when Albert Kosis was injured when his motorized “minibike” hit a pothole, it wasn’t a question of whether the statute applied. Instead, the court had to decide whether Kosis had followed the law and provided the government sufficient notice.

On June 10, 2012, Albert Kosis was riding a minibike on Westfield Street in Livonia when he hit a pothole. The impact was enough to send him somersaulting over the handlebars and onto the roadway. As he was picking himself up, a stranger came over to help him. Kosis declined the stranger’s offer to call 911 and instead used the stranger’s cell phone to call his cousin to pick him up. While they waited for Kosis’s cousin, he and the stranger talked about the condition of the road. Apparently, the stranger had “blown out” a tire on the same pothole.

Within 120 days, Kosis sent the City of Livonia a notice of intent to sue as required by MCL 691.1404 in the governmental immunity statute. But that notice didn’t list the stranger as a known witness. Livonia filed a motion for summary disposition arguing that the notice was deficient because it failed to list a known witness.

Motion for Summary Disposition for Governmental Immunity under MCR 2.116(C)(7)

Kosis v. City of Livonia deals with a section of the summary disposition court rule that doesn’t come up all that often in no-fault law. MCR 2.116(C)(7) allows a government defendant to get a case dismissed if the claim is barred because of an immunity granted by law. While insurance companies and negligent drivers don’t often have legal immunity, cities do. So when a motorcycle injury is caused by defective pavement, motorcycle accident attorneys need to be prepared to defend against motions for summary disposition based on governmental immunity.

Governmental Immunity and the Highway Exception

Luckily for Kosis, the Governmental Tort Liability Act (GTLA) includes a highway exception. MCL 691.1402(1) states in relevant part:

Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.

But to file that lawsuit, the injured party must first provide notice to the government entity. The court summarized the requirements:

Accordingly, before filing a complaint, a claimant must provide, within 120 days from the time of injury, “notice to the governmental agency that (1) specifies the exact location and nature of the defect, (2) identifies the injuries sustained, and (3) provides the names of any known witnesses.” Burise, 282 Mich App at 653 (emphasis added).

The City of Livonia said Kosis’s notice was deficient because it failed to identify a known witness: the stranger.

The “Known Witness” Requirement

The court had to decide whether the stranger counted as a known witness for Kosis’s notice of intent to sue. First, the court addressed the “known” part. The court said:

In order for a person to be a known witness, the person first must be known to plaintiff, meaning that the plaintiff was aware of the witness.

Given that Kosis spoke with the stranger and used his phone, the court said he was “clearly” aware of the stranger. But was he a “witness”?

The court reviewed Rule v Bay City, a published case from 1968. In Rule, an injured plaintiff failed to disclose her daughter who was inside the car when she fell just outside the door. The court ruled that because the daughter could not see what caused the fall, she wouldn’t be able to be a witness. The Rule court said:

“The mere presence of a person at the scene of an accident does not make that person a witness.”

In a footnote, the Kosis court questioned whether Rule improperly restricted the word witness in ways not intended in the statute. But even though the court disagreed, it followed precedent.

The stranger who helped Kosis had not seen the accident. He was in his yard doing something else and wasn’t watching the road. Based on Rule, that means the stranger was not a witness and Kosis did not have to disclose him as part of the notice.

Duty to Investigate Known Witnesses

One thing the Kosis court did not clearly resolve is whether an injured person has a duty to investigate the identity of known witnesses not otherwise known. Had the stranger witnessed the crash, would Kosis have been required to search him out and get his contact information within the short 120 day window after the accident?

The court’s reading of MCL 691.1404 suggests yes. It added emphasis to “provides the names of any known witnesses.” Further, it defined “known” as anyone the plaintiff was aware of. Had the stranger seen enough to testify, it appears Kosis and his attorneys would have had to disclose his name, even if they had to do some research to learn it.

This imposes a significant burden on injured plaintiffs seeking to use the highway exception to governmental immunity. After a serious injury, the first 120 days can easily be consumed by hospital stays and treatments. By imposing a duty to investigate, the court has put the pressure on injured plaintiffs to contact an attorney almost immediately.

David Christensen is a motorcycle accident attorney at Christensen Law in Southfield, Michigan. If your client has suffered injury in a motorcycle accident, contact Christensen Law today for a referral.