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A Better Partnership
May 26, 2016

COA holds that governmental liability for failure to properly maintain a highway extends not only to physical injury but to other damages flowing from physical injury

In Streng v. Board of Mackinac County Road Commissioners, No.  323226, the Court of Appeals held that where a governmental agency is charged with tort liability for failure to keep a highway under repair under the Governmental Tort Liability Act (GTLA), the liability, procedure and remedy will be governed exclusively by MCL 224.21.  Furthermore, with regard to MCL 224.21, (1) substantial compliance with notice requirements is sufficient to bring a claim, (2) the term “the clerk” means the county clerk, and (3) a plaintiff is entitled to all damages flowing naturally from their physical injury.
On July 8, 2011, the plaintiff, Karen Streng, was injured in a motorcycle accident when she allegedly lost control of her motorcycle due to tar-like crack fill on Highway 33 about a mile north of the intersection with Camp A Road. On September 2, 2011, plaintiff sent a document titled, “MCL 224.21 NOTICE OF INTENT TO PURSUE CLAIM,” to the chair of the Mackinac County Board of Road Commissioners and the Clerk for the County of Mackinac, that set forth that plaintiff was heading north toward Curtis, Michigan, which described the location of the accident as “Highway 33 near the intersection of Camp A Road in Mackinac County, Michigan.  Attached to the notice was a copy of a police report, which described the location as being 1,000 feet north of the intersection of Camp A Road and Highway 33 and included a rough sketch of the accident scene. Streng then filed a complaint against Mackinac County Board of Commissioners, in which she claimed physical injury to her shoulder, knee and teeth and also alleged damages including medical expenses, wage loss and loss of earning capacity; “great mental anguish; fright and shock; pain and suffering.” 
Defendants Board of Mackinac County moved for summary disposition, arguing that plaintiff’s notice of intent failed to identify the exact location of the accident, as required by the notice provision of MCL 691.1404(1), and that it could not be held liable for any damages that did not constitute bodily injury or property damage.  The trial court denied defendant’s motion and the defendant subsequently filed this appeal.
The Court of Appeals affirmed the trial court's decision, holding that GTLA expressly directs a person injured on a county road to proceed in accordance with MCL 224.21 (“The liability, procedure, and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in . . . MCL 224.21,” MCL 691.1402(1)). The court further held with regard to the written notice requirements set forth in MCL 224.21(3), that a failure to precisely comply with all criteria will not make the notice insufficient and that substantial compliance will suffice. The court also determined that “the clerk” as used in MCL 224.21(3) notice requirements shall mean the county clerk and not the clerk of the board of county commissioners as asserted by the defendant. Finally, the court held that plaintiff is entitled to recover not only for physical injury and property damage, but also for damages that flow naturally from their physical injury including noneconomic damages such as damages for loss of ability to work and earn money as well as pain and suffering and mental emotional distress. 

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