Defective Highways: No Notice, No Recovery Actual Prejudice no Longer Required

The Governmental Tort Liability Act provides immunity to governmental agencies for tort liability. Therefore, to avoid the government=s immunity, a plaintiff must establish that their case falls under an exception to the Act. One of the most common exceptions is the defective highway exception, which requires a governmental agency to maintain its roads and highways in reasonable repair so that it is reasonably safe and convenient for public travel.

To recover under the defective highway exception, notice of the alleged injury and defect is required to be served on the appropriate governmental agency. Generally, the injured person must serve notice on the governmental agency within 120 days from the time the injury occurred. The notice must specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time.

Until recently, when a party failed to comply with the notice provision, the governmental agency had to show actual prejudice in order to bar a plaintiff=s claim. However, the Michigan Supreme Court recently overruled this requirement in Rowland v Washtenaw County Road Commission, holding that the plain language of the statute should be enforced as written. Therefore, a claim is barred if the plaintiff fails to strictly comply with the notice provision, regardless of whether the governmental agency is actually prejudiced by the delay. That means that if a party fails to serve the governmental agency with proper notice, such as failing to identify the exact location and nature of the defect or if the notice is late, the case is barred.

The Court also held that this new law should be applied retroactively, which means that it applies to cases already filed, even if the plaintiff relied on the old law. The likely effect will be that many pending cases dealing with the notice provision will be dismissed, and many cases that may have been filed in the future will no longer be filed.