Transportation Authority Liability

By Michael Hohauser

Most attorneys who do injury work are aware that there is a 120 day Notice Statute covering Road Commission liability. In order to pursue a case, the injured person or that person’s representative must give the Road Commission responsible for the defective road that caused an accident Notice within 120 days of the accident. The statute states:

That statute has been the subject of interpretation by the Michigan Supreme Court. In the case of Rowland vs Washtenaw County Road Commission, the Court interpreted the statute strictly. If notice pursuant to the statute is not afforded the Road Commission during the applicable period, liability is forfeit.

This is departure from previous law. For approximately the last 80 years, the 120 day notice statute covering Road Commissions was tempered by a question of prejudice. If the Road Commission was not prejudiced by the length of time between the incident and notice, then the claim went forward. See Hobbs v. Dep’t of State Hwys, 398 Mich. 90, 96, 247 N.W.2d 754 (1976) and Brown v. Manistee Co. Rd. Comm. 452 Mich. 354, 356, 550 N.W.2d (1996). Under Rowland, it does not matter if the Road Commission was prejudiced by failure to give Notice or not. Notice must be given within 120 days of the accident. If Notice is not timely within 120 days, a later case will be dismissed.

Rowland, supra, does away with the question of prejudice as applied to Road Commission cases.

There is a similar statute that requires notice to transportation authorities such as SMART. Many practitioners are not aware of this statute.

This statute requires that in any case concerning liability attaching to a Transportation Authority, notice of a claim must be served upon the Transportation Authority within 60 days of the event. Given the Supreme Court decision in Rowland, supra, it is likely that the Transportation Authority statute will be applied without reference to prejudice, just as the Road Commission statute has been applied. This is a very significant issue. Sixty days is a very short time.

There are, however, significant differences between the two statutes. The Road Commission statute requires that the injured person notify the Road Commission of a claim, identifying the road defect and the injuries to the plaintiff.

The Transportation Authority statute does not require that the injured person give written notice of the claim. The statute simply states that the Transportation Authority be “served with written notice” of a claim. It does not state that the notice must come from the plaintiff or a representative of the plaintiff. The Transportation Authority statute does not require that the accident facts or injuries be delineated.

There are obvious differences between a Road Commission situation and a Transportation Authority situation. In the case of an accident involving a defective roadway, the Road Commission will not know for some time that an accident has occurred unless notice is served. In the case of a Transportation Authority, the driver is at the scene. The Authority has immediate notice through its agent.

The fact that a driver is at the scene may not affect future Supreme Court determinations. That is because the statute requires written notice. Under a strict construction view, even though the Transportation Authority will have actual notice, that will be insufficient because the notice may not be in writing.

The writing requirement is critical because the statute does not require that the writing come from the claimant. Because Transportation Authorities receive actual notice quickly, their investigators are usually at the scene of significant injury accidents within minutes. Those investigators take statements and issue written reports. Those written reports are transmitted to the Transportation Authorities. Therefore, Transportation Authorities are very likely to receive written notice within the 60 day statutory period. The writing, however, may not refer to the word “claim”.

The question becomes whether written notice that sets forth the accident facts and that the plaintiff was injured will be interpreted as a “claim”. That term is not defined in the Transportation Authority statute or in any other statute which applies.

A strict constructionist Supreme Court will look to the common definition of the term “claim”. If that definition is viewed as the assertion of a right this may undermine liability in spite of actual, written notice to the authority. Such a ruling, would require that the Court determine that written notice:

• of an incident;
• of accident facts establishing negligence, and;
• of an injury

do not constitute a claim. This would violate the rationale underlying the statute and lead to an absurd result.

It is difficult to forecast how the Supreme Court will define the term “claim” in its interpretation of the subject statute. This makes Transportation Authority liability difficult to predict where written notice has not been sent on behalf of an injured person stating a claim within 60 days. Practitioners should be on notice of this difficulty and react accordingly. For persons who have pending claims and who will shortly be met with motions for summary disposition on the application of this statute, it will be important to discover all writings associated with the claim from whatever source created within the 60 days from the date of the accident. This will include the adjusters file.