SENATE BILL No. 900
December 1, 1999, Introduced by Senators STILLE, GOUGEON, NORTH, JAYE and MC MANUS and referred to the Committee on Judiciary. A bill to amend 1964 PA 170, entitled "An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and depart- ments, officers, employees, and volunteers thereof, and members of certain boards, councils, and task forces when engaged in the exercise or discharge of a governmental function, for injuries to property and persons; to define and limit this liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of this liability; to provide for defending certain claims made against public offi- cers and paying damages sought or awarded against them; to pro- vide for the legal defense of public officers and employees; to provide for reimbursement of public officers and employees for certain legal expenses; and to repeal certain acts and parts of acts," by amending the title and sections 1, 2, 4, and 6 (MCL 691.1401, 691.1402, 691.1404, and 691.1406), the title and section 1 as amended by 1986 PA 175 and section 2 as amended by 1996 PA 150, and by adding sections 2a and 2b. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 03122'99 GWH 2 1 TITLE 2 An act to make uniform DEFINE AND LIMIT the liability of 3 municipal corporations, political subdivisions, and the state, 4 its THEIR agencies and departments, THEIR officers, employees, 5 and volunteers, thereof, and members of certain boards, coun- 6 cils, and task forces, when engaged in the exercise or discharge 7 of a governmental function, for injuries to property and persons; 8 to define and limit this liability; to define and limit the 9 liability of the state when engaged in a proprietary function; to 10 authorize the purchase of liability insurance to protect against 11 loss arising out of this liability; to provide for defending cer- 12 tain claims made against public officers and paying damages 13 sought or awarded against them; to provide for the legal defense 14 of public officers and employees; to provide for reimbursement of 15 public officers and employees for certain legal expenses; and to 16 repeal certain acts and parts of acts. 17 Sec. 1. (1) THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE 18 "GOVERNMENTAL IMMUNITY ACT". 19 (2) As used in this act: 20 (A) "CONSUMER PRICE INDEX" MEANS THE MOST COMPREHENSIVE 21 INDEX OF CONSUMER PRICES AVAILABLE FOR THIS STATE FROM THE BUREAU 22 OF LABOR STATISTICS OF THE UNITED STATES DEPARTMENT OF LABOR. 23 (B) "GOVERNMENTAL AGENCY" MEANS THE STATE, A POLITICAL SUB- 24 DIVISION, OR A MUNICIPAL CORPORATION. 25 (C) "GOVERNMENTAL FUNCTION" IS AN ACTIVITY THAT IS EXPRESSLY 26 OR IMPLIEDLY MANDATED OR AUTHORIZED BY CONSTITUTION, STATUTE, 27 LOCAL CHARTER OR ORDINANCE, OR OTHER LAW. 03122'99 3 1 (D) "HIGHWAY" MEANS A PUBLIC HIGHWAY, ROAD, OR STREET THAT 2 IS OPEN FOR PUBLIC TRAVEL. HIGHWAY INCLUDES BRIDGES, SIDEWALKS, 3 CROSSWALKS, AND CULVERTS ON THE HIGHWAY. HIGHWAY DOES NOT 4 INCLUDE ALLEYS, PARKING LOTS, ROADSIDE REST AREAS, TREES, OR 5 UTILITY POLES. 6 (E) "IMPROVED PORTION OF THE HIGHWAY DESIGNED FOR VEHICULAR 7 TRAVEL" MEANS THE PHYSICAL STRUCTURE OF THE TRAVELED PORTION, 8 PAVED OR UNPAVED, OF THE ROADBED ACTUALLY DESIGNED FOR PUBLIC 9 VEHICULAR TRAVEL. IMPROVED PORTION OF THE HIGHWAY DESIGNED FOR 10 VEHICULAR TRAVEL INCLUDES A GUARDRAIL, A TRAFFIC CONTROL SIGNAL, 11 OR A WARNING OR REGULATORY SIGN OR SIGNAL THAT REQUIRES THE 12 DRIVER TO CHANGE SPEED OR DIRECTION, BUT ONLY TO THE EXTENT THAT 13 THE CONTROL SIGNAL, OR THE WARNING OR REGULATORY SIGN OR SIGNAL, 14 IS ESSENTIAL TO REASONABLY SAFE TRAVEL AND NOT TO THE EXTENT THAT 15 IT PROVIDES A NEEDLESSLY REPETITIVE IDENTICAL TRAFFIC CUE. BY 16 WAY OF ILLUSTRATION AND NOT LIMITATION, IMPROVED PORTION OF THE 17 HIGHWAY DESIGNED FOR VEHICULAR TRAVEL DOES NOT INCLUDE A SHOUL- 18 DER, CURB, TREE OR OTHER VEGETATION, UTILITY POLE, MEDIAN, SIDE- 19 WALK, CROSSWALK, CULVERT, OR BARRIER; LIGHTING; OR ANOTHER 20 INSTALLATION OR CONDITION LOCATED BEYOND THE TRAVELED PORTION OF 21 THE ROADBED. THE INCLUSIVE AND EXCLUSIVE PROVISIONS IN THIS DEF- 22 INITION SHALL NOT BE CONSIDERED TO AMEND OR EXPAND THE INCLUSIVE 23 OR EXCLUSIVE PROVISIONS IN THE DEFINITION OF THE TERM "HIGHWAY" 24 IN SUBDIVISION (D). 25 (F) "JURISDICTION" MEANS INCLUSION OF A HIGHWAY IN A GOVERN- 26 MENTAL AGENCY SYSTEM UNDER SECTIONS 1 TO 9 OF 1951 PA 51, 27 MCL 247.651 TO 247.659. 03122'99 4 1 (G) (a) "Municipal corporation" means any A city, 2 village, township, or charter township, or any A combination 3 thereof OF ANY OF THESE, when acting jointly. 4 (H) (b) "Political subdivision" means any A municipal 5 corporation, county, county road commission, township, charter 6 township, school district, community college district, port dis- 7 trict, or metropolitan district, OR transportation authority, 8 or any A combination thereof OF ANY OF THESE, when acting 9 jointly; , and any A district or authority authorized by law or 10 formed by 1 or more political subdivisions; , and any OR AN 11 agency, department, court, board, or council of a political 12 subdivision. 13 (I) (c) "State" means the state of Michigan and its agen- 14 cies, departments, commissions, courts, boards, councils, AND 15 statutorily created task forces. , and shall include every 16 STATE INCLUDES A public university and OR college of the state, 17 whether established as a constitutional corporation or 18 otherwise. 19 (d) "Governmental agency" means the state, political subdi- 20 visions, and municipal corporations. 21 (e) "Highway" means every public highway, road, and street 22 which is open for public travel and shall include bridges, side- 23 walks, crosswalks, and culverts on any highway. The term highway 24 does not include alleys, trees, and utility poles. 25 (f) "Governmental function" is an activity which is 26 expressly or impliedly mandated or authorized by constitution, 27 statute, local charter or ordinance, or other law. 03122'99 5 1 (J) (g) "Volunteer" means an individual who is 2 specifically designated as such A VOLUNTEER and who is acting 3 solely on behalf of a governmental agency. 4 (K) "VERDICT" MEANS THE TOTAL OF ALL OF THE FOLLOWING: 5 (i) DAMAGES. 6 (ii) INTEREST. 7 (iii) FEES, INCLUDING, BUT NOT LIMITED TO, ATTORNEY AND 8 EXPERT FEES. 9 (iv) COSTS. 10 Sec. 2. (1) Each SUBJECT TO THE OTHER PROVISIONS OF THIS 11 SECTION, EACH governmental agency having jurisdiction over a 12 highway shall maintain the highway in reasonable repair so that 13 it is reasonably safe and convenient for public FIT FOR 14 travel. A person sustaining bodily injury or damage to his or 15 her property by reason of failure of a governmental agency to 16 keep a highway under its jurisdiction in reasonable repair, and 17 in condition reasonably safe and fit for travel, may recover the 18 damages suffered by him or her from the governmental agency. A 19 PERSON SHALL NOT MAINTAIN A SEPARATE ACTION UNDER THIS SECTION 20 AGAINST AN EMPLOYEE, AGENT, OR VOLUNTEER OF A GOVERNMENTAL 21 AGENCY. 22 (2) The liability, procedure, and remedy as to county roads 23 under the jurisdiction of a county road commission shall be IS 24 as provided in section 21 of chapter IV of Act No. 283 of the 25 Public Acts of 1909, as amended, being section 224.21 of the 26 Michigan Compiled Laws 1909 PA 283, MCL 224.21. 03122'99 6 1 (3) The duty of the state and the county road commissions to 2 repair and maintain highways, and the liability for that duty, 3 extends only to the improved portion of the highway designed for 4 vehicular travel and does not include sidewalks, crosswalks, or 5 any other installation outside of REQUIRES THAT the improved 6 portion of the highway designed for vehicular travel BE REASON- 7 ABLY SAFE AND FIT FOR TRAVEL. 8 (4) A HIGHWAY OR THE IMPROVED PORTION OF THE HIGHWAY 9 DESIGNED FOR VEHICULAR TRAVEL IS NOT DEFECTIVE AND SHALL BE CON- 10 SIDERED REASONABLY SAFE AND FIT FOR TRAVEL IF THE CONDITION THAT 11 IS ALLEGED TO HAVE CAUSED THE INJURY OR DAMAGE THAT IS THE BASIS 12 OF AN ACTION UNDER THIS SECTION IS A DEPRESSION OR ELEVATION THAT 13 HAS A VERTICAL DIFFERENCE FROM THE IMMEDIATELY ADJACENT TRAVELING 14 SURFACE OF 2 INCHES OR LESS. 15 (5) A judgment against the state based on a claim arising 16 under this section from acts or omissions of the state transpor- 17 tation department is payable only from restricted funds appropri- 18 ated to the state transportation department or funds MONEY pro- 19 vided by its insurer. 20 (6) (2) If the state transportation department contracts 21 with another governmental agency to perform work on a state 22 trunkline highway, an action brought under this section for tort 23 liability arising out of the performance of that work shall be 24 brought only against the state transportation department under 25 the same circumstances and to the same extent as if the work had 26 been performed by employees of the state transportation 27 department. The state transportation department has the same 03122'99 7 1 defenses to the action as it would have had if the work had been 2 performed by its own employees. If an action described in this 3 subsection could have been maintained against the state transpor- 4 tation department, it shall not be maintained against the govern- 5 mental agency that performed the work for the state transporta- 6 tion department. The governmental agency also has the same 7 defenses that could have been asserted by the state transporta- 8 tion department had the action been brought against the state 9 transportation department. 10 (7) (3) The contractual undertaking of a governmental 11 agency to maintain a state trunkline highway confers contractual 12 rights only on the state transportation department and does not 13 confer third party beneficiary or other contractual rights in any 14 other person to recover damages to person or property from that 15 governmental agency. This subsection does not relieve the state 16 transportation department of liability it may have, under this 17 section, regarding that highway. 18 (8) ONLY THE GOVERNMENTAL AGENCY THAT HAS JURISDICTION OVER 19 THE HIGHWAY AT THE TIME OF THE OCCURRENCE THAT RESULTED IN THE 20 INJURY OR DAMAGE IS LIABLE IN AN ACTION UNDER THIS SECTION. 21 (9) (4) The duty imposed by this section on a governmental 22 agency is limited by the provisions of section SECTIONS 81131 23 of part 811 (off-road recreation vehicles) and section 82124 24 of part 821 (snowmobiles) of the natural resources and environ- 25 mental protection act, Act No. 451 of the Public Acts of 1994, 26 being sections 324.81131 and 324.82124 of the Michigan Compiled 27 Laws 1994 PA 451, MCL 324.81131 AND 324.82124. 03122'99 8 1 SEC. 2A. (1) IN AN ACTION UNDER SECTION 2, IF THE 2 INDIVIDUAL UPON WHOSE DEATH OR INJURY, OR WHO SUSTAINED THE PROP- 3 ERTY DAMAGE UPON WHICH, THE ACTION IS BASED WAS REQUIRED, AT THE 4 TIME OF THE OCCURRENCE THAT RESULTED IN THE DEATH, INJURY, OR 5 PROPERTY DAMAGE, TO PROCURE INSURANCE AS REQUIRED UNDER CHAPTER 6 31 OF THE INSURANCE CODE OF 1956, 1956 PA 218, MCL 500.3101 TO 7 500.3179, AND FAILED TO DO SO, THE VERDICT RECOVERABLE FROM ALL 8 GOVERNMENTAL AGENCIES SHALL NOT INCLUDE DAMAGES FOR NONECONOMIC 9 LOSS. IN ALL OTHER CASES, IN AN ACTION UNDER SECTION 2 AND 10 SUBJECT TO SUBSECTION (7) AND SECTION 2B, THE VERDICT RECOVERABLE 11 FROM ALL GOVERNMENTAL AGENCIES FOR NONECONOMIC LOSS SHALL NOT 12 EXCEED THE LOWER OF THE FOLLOWING THAT IS APPROPRIATE UNDER THE 13 FACTS OF THAT ACTION: 14 (A) IF THE ACTION IS BASED ON AN INDIVIDUAL'S DEATH OR LOSS 15 OF A VITAL BODILY FUNCTION, NOT MORE THAN $500,000.00 FOR ALL 16 CLAIMS BY THE INDIVIDUAL OR THE INDIVIDUAL'S ESTATE FOR BODILY 17 INJURY OR FOR DAMAGE TO THE INDIVIDUAL'S PROPERTY AND ALL OTHER 18 CLAIMS BY OTHER PERSONS ARISING OUT OF THE SAME DEATH, INJURY, OR 19 DAMAGE. 20 (B) FOR AN ACTION OTHER THAN AN ACTION DESCRIBED IN 21 SUBDIVISION (A), NOT MORE THAN $280,000.00 FOR ALL CLAIMS BY AN 22 INDIVIDUAL FOR BODILY INJURY OR FOR DAMAGE TO THE INDIVIDUAL'S 23 PROPERTY AND ALL OTHER CLAIMS BY OTHER PERSONS ARISING OUT OF THE 24 SAME INJURY OR DAMAGE. 25 (2) IN AN ACTION UNDER SECTION 2, A LIMITATION ON THE VER- 26 DICT RECOVERABLE PRESCRIBED BY THIS SECTION DOES NOT APPLY 27 SEPARATELY TO EACH PERSON CLAIMING NONECONOMIC DAMAGES. THE 03122'99 9 1 LIMITATION APPLIES TO THE AGGREGATED AMOUNT OF ALL OF THE 2 FOLLOWING: 3 (A) NONECONOMIC DAMAGE CLAIMS BY AN INDIVIDUAL OR THE 4 INDIVIDUAL'S ESTATE FOR THE INDIVIDUAL'S BODILY INJURY OR DEATH 5 OR FOR DAMAGE TO THE INDIVIDUAL'S PROPERTY. 6 (B) NONECONOMIC DAMAGE CLAIMS BY OTHER PERSONS ARISING OUT 7 OF THE SAME DEATH, INJURY, OR DAMAGE. 8 (3) IF THE INJURED INDIVIDUAL WAS REQUIRED TO PROCURE INSUR- 9 ANCE UNDER CHAPTER 31 OF THE INSURANCE CODE OF 1956, 1956 PA 218, 10 MCL 500.3101 TO 500.3179, AND FAILED TO DO SO, IN AN ACTION UNDER 11 SECTION 2 AND SUBJECT TO SUBSECTION (7) AND SECTION 2B, THE VER- 12 DICT RECOVERABLE FROM ALL GOVERNMENTAL AGENCIES FOR ECONOMIC LOSS 13 SHALL NOT EXCEED $300,000.00. 14 (4) IN AN ACTION UNDER SECTION 2 AND SUBJECT TO SUBSECTION 15 (7) AND SECTION 2B, THE LIABILITY OF ALL GOVERNMENTAL AGENCIES 16 FOR DAMAGES FOR MEDICAL SERVICES, INCLUDING, BUT NOT LIMITED TO, 17 TREATMENT, REHABILITATION SERVICES, AND CUSTODIAL CARE, IS 18 LIMITED TO THOSE DAMAGES FOR MEDICAL SERVICES THAT ARE OBJEC- 19 TIVELY VERIFIABLE. 20 (5) IN AWARDING DAMAGES IN AN ACTION UNDER SECTION 2, THE 21 TRIER OF FACT SHALL ITEMIZE DAMAGES INTO ECONOMIC AND NONECONOMIC 22 LOSSES. THE COURT OR COUNSEL FOR A PARTY IN AN ACTION UNDER SEC- 23 TION 2 SHALL NOT ADVISE THE JURY OF THE LIMITATIONS ON THE VER- 24 DICT RECOVERABLE PRESCRIBED BY THIS SECTION. SUBJECT TO 25 SECTION 2B, IF A LIMITATION PRESCRIBED BY THIS SECTION APPLIES, 26 THE COURT SHALL SET ASIDE THE AMOUNT OF THE VERDICT THAT IS IN 27 EXCESS OF THE LIMITATION. 03122'99 10 1 (6) A GOVERNMENTAL AGENCY IS ENTITLED TO A REDUCTION IN 2 DAMAGES BASED ON A PAYMENT FROM A COLLATERAL SOURCE AS PROVIDED 3 IN SECTION 6303 OF THE REVISED JUDICATURE ACT OF 1961, 1961 4 PA 236, MCL 600.6303, INCLUDING BENEFITS PAID OR PAYABLE UNDER 5 SECTION 3116 OF THE INSURANCE CODE OF 1956, 1956 PA 218, 6 MCL 500.3116. FOR PURPOSES OF THIS SUBSECTION, A LIEN BY AN 7 INDIVIDUAL, PARTNERSHIP, ASSOCIATION, CORPORATION, OR OTHER LEGAL 8 ENTITY IS NOT ENFORCEABLE AGAINST A PLAINTIFF'S DAMAGES RECOVERED 9 FROM A GOVERNMENTAL AGENCY IN AN ACTION BROUGHT UNDER SECTION 2. 10 (7) ON THE EFFECTIVE DATE OF THE AMENDATORY ACT THAT ADDED 11 THIS SECTION, THE STATE TREASURER SHALL ADJUST THE LIMITATIONS ON 12 THE VERDICT RECOVERABLE AS PRESCRIBED BY SUBSECTION (1) SO THAT 13 THE LIMITATIONS ARE EQUAL TO THE CORRESPONDING LIMITATION AMOUNTS 14 PROVIDED IN SECTION 1483 OF THE REVISED JUDICATURE ACT OF 1961, 15 1961 PA 236, MCL 600.1483, AS THOSE LIMITATION AMOUNTS HAVE BEEN 16 ADJUSTED TO THAT DATE. AFTER THE INITIAL ADJUSTMENT MADE UNDER 17 THIS SUBSECTION, THE STATE TREASURER SHALL ADJUST THE LIMITATIONS 18 PRESCRIBED BY SUBSECTION (1) AT THE END OF EACH CALENDAR YEAR SO 19 THAT THEY CONTINUE TO BE EQUAL TO THE CORRESPONDING LIMITATION 20 AMOUNTS PROVIDED IN SECTION 1483 OF THE REVISED JUDICATURE ACT OF 21 1961, 1961 PA 236, MCL 600.1483. 22 SEC. 2B. (1) BEFORE THE COURT APPLIES A LIMITATION ON THE 23 VERDICT RECOVERABLE AS PRESCRIBED BY SECTION 2A AND SUBJECT TO 24 SUBSECTION (2), THE TRIER OF FACT SHALL CONSIDER THE NEGLIGENCE 25 OF THE INDIVIDUAL UPON WHOSE DEATH OR INJURY, OR WHO SUSTAINED 26 THE PROPERTY DAMAGE UPON WHICH, THE ACTION IS BASED AT THE TIME 27 OF THE OCCURRENCE THAT RESULTED IN THE DEATH, INJURY, OR PROPERTY 03122'99 11 1 DAMAGE AND SHALL REDUCE THE PLAINTIFF'S VERDICT IN PROPORTION TO 2 THE AMOUNT THAT THAT INDIVIDUAL'S NEGLIGENCE WAS A PROXIMATE 3 CAUSE OF THE DEATH, INJURY, OR PROPERTY DAMAGE. 4 (2) IT IS AN ABSOLUTE DEFENSE IN AN ACTION UNDER SECTION 2 5 FOR THE DEATH OF AN INDIVIDUAL OR FOR INJURY TO A PERSON OR 6 DAMAGE TO PROPERTY THAT THE INDIVIDUAL UPON WHOSE DEATH, INJURY, 7 OR PROPERTY DAMAGE THE ACTION IS BASED HAD AN IMPAIRED ABILITY TO 8 FUNCTION DUE TO THE INFLUENCE OF INTOXICATING LIQUOR OR A CON- 9 TROLLED SUBSTANCE, AND AS A RESULT OF THAT IMPAIRED ABILITY, THE 10 INDIVIDUAL WAS 50% OR MORE THE CAUSE OF THE ACCIDENT OR EVENT 11 THAT RESULTED IN THE DEATH, INJURY, OR PROPERTY DAMAGE. IF THE 12 INDIVIDUAL DESCRIBED IN THIS SUBSECTION WAS LESS THAN 50% THE 13 CAUSE OF THE ACCIDENT OR EVENT, AN AWARD OF DAMAGES SHALL BE 14 REDUCED BY THAT PERCENTAGE. AN INDIVIDUAL IS PRESUMED UNDER THIS 15 SUBSECTION TO HAVE AN IMPAIRED ABILITY TO FUNCTION DUE TO THE 16 INFLUENCE OF INTOXICATING LIQUOR OR A CONTROLLED SUBSTANCE IF, 17 UNDER A STANDARD PRESCRIBED BY SECTION 625A OF THE MICHIGAN VEHI- 18 CLE CODE, 1949 PA 300, MCL 257.625A, A PRESUMPTION WOULD ARISE 19 THAT THE INDIVIDUAL'S ABILITY TO OPERATE A VEHICLE WAS IMPAIRED. 20 (3) AS USED IN THIS SECTION: 21 (A) "CONTROLLED SUBSTANCE" MEANS THAT TERM AS DEFINED IN 22 SECTION 7104 OF THE PUBLIC HEALTH CODE, 1978 PA 368, 23 MCL 333.7104. 24 (B) "IMPAIRED ABILITY TO FUNCTION DUE TO THE INFLUENCE OF 25 INTOXICATING LIQUOR OR A CONTROLLED SUBSTANCE" MEANS THAT, AS A 26 RESULT OF AN INDIVIDUAL DRINKING, INGESTING, SMOKING, INJECTING, 27 OR OTHERWISE CONSUMING INTOXICATING LIQUOR OR A CONTROLLED 03122'99 12 1 SUBSTANCE, THE INDIVIDUAL'S SENSES ARE IMPAIRED TO THE POINT THAT 2 THE INDIVIDUAL'S ABILITY TO REACT IS DIMINISHED FROM WHAT IT 3 WOULD BE HAD THE INDIVIDUAL NOT CONSUMED LIQUOR OR A CONTROLLED 4 SUBSTANCE. 5 Sec. 4. (1) As a condition to any recovery EXCEPT AS PRO- 6 VIDED IN SUBSECTION (3), AN INJURED PERSON SHALL NOT RECOVER for 7 DEATH, BODILY injuries, OR DAMAGE TO PROPERTY sustained by reason 8 of any A defective highway , the injured person UNLESS, 9 within 120 days from AFTER the time the DEATH, injury, 10 occurred, except as otherwise provided in subsection (3) shall 11 serve OR PROPERTY DAMAGE OCCURS, THE INJURED PERSON SERVES a 12 notice on the governmental agency of the occurrence of the DEATH, 13 injury, OR PROPERTY DAMAGE and the defect. The notice shall 14 specify the exact location and nature of the defect, the DEATH, 15 injury, OR PROPERTY DAMAGE sustained, and the names of the wit- 16 nesses known at the time by the claimant. 17 (2) The OTHER THAN NOTICE TO THE STATE, THE NOTICE 18 REQUIRED UNDER SUBSECTION (1) may be served upon any 19 individual, either personally , or by certified mail, return 20 receipt requested, UPON ANY INDIVIDUAL who may lawfully be served 21 with civil process directed against the governmental agency, any- 22 thing to the contrary in the charter of any municipal 23 corporation A POLITICAL SUBDIVISION notwithstanding. In case 24 of the state, such notice NOTICE TO THE STATE REQUIRED UNDER 25 SUBSECTION (1) shall be filed in triplicate with the clerk of the 26 court of claims. Filing of such THE notice shall constitute 27 CONSTITUTES compliance with section 6431 of Act No. 236 of the 03122'99 13 1 Public Acts of 1961, being section 600.6431 of the Compiled Laws 2 of 1948 THE REVISED JUDICATURE ACT OF 1961, 1961 PA 236, 3 MCL 600.6431, requiring the filing of notice of intention to file 4 a claim against the state. If required by the legislative body 5 or chief administrative officer of the responsible governmental 6 agency, the claimant shall appear to testify, if he is physi- 7 cally able to do so. , and THE CLAIMANT shall produce his 8 witnesses before the legislative body , OR a committee 9 thereof OF THAT BODY, or the chief administrative officer , 10 or his THAT OFFICER'S deputy, or a legal officer of the govern- 11 mental agency, as directed by the legislative body or chief 12 administrative officer of the responsible governmental agency, 13 for examination under oath as to the claim, the amount thereof 14 OF THE CLAIM, and the extent of the injury OR DAMAGE. 15 (3) If the injured person is under the age of 18 years at 16 the time the injury occurred, he shall serve the notice required 17 by subsection (1) not more than 180 days from the time the injury 18 occurred, which notice may be filed by a parent, attorney, next 19 friend or legally appointed guardian. If the injured person OR 20 PERSON WHOSE PROPERTY WAS DAMAGED is physically or mentally 21 incapable of giving THE notice REQUIRED UNDER SUBSECTION (1), 22 he THE PERSON shall serve the notice required by subsection 23 (1) not more than 180 days after the termination of the 24 disability. In all A civil actions ACTION in which the phys- 25 ical or mental capability of the person is in dispute, that issue 26 shall be determined by the trier of the facts FACT. The 27 provisions of this THIS subsection shall apply APPLIES to all 03122'99 14 1 charter provisions, statutes, and ordinances which THAT require 2 written notices NOTICE to counties or municipal corporations 3 OR A COUNTY OR OTHER POLITICAL SUBDIVISION. 4 (4) FAILURE TO PROVIDE NOTICE WITHIN A TIME LIMIT PRESCRIBED 5 BY THIS SECTION IS AN ABSOLUTE BAR TO RECOVERY. 6 Sec. 6. (1) Governmental agencies have the obligation to 7 A GOVERNMENTAL AGENCY SHALL repair and maintain EACH public 8 buildings BUILDING under their THE control when OF THE GOV- 9 ERNMENTAL AGENCY IF THE PUBLIC BUILDING IS open for use by mem- 10 bers of the public. Governmental agencies are A GOVERNMENTAL 11 AGENCY IS liable for DEATH, bodily injury, and OR property 12 damage resulting from a dangerous or defective condition of a 13 public building if the governmental agency had actual or con- 14 structive knowledge of the defect and, for a reasonable time 15 after acquiring THE knowledge, failed to remedy the DANGEROUS OR 16 DEFECTIVE condition or to take action reasonably necessary to 17 protect the public against the DANGEROUS OR DEFECTIVE condition. 18 Knowledge of the dangerous and OR defective condition of the 19 public building and time to repair the same shall be DANGEROUS 20 OR DEFECTIVE CONDITION ARE conclusively presumed when such 21 defect IF THE DANGEROUS OR DEFECTIVE CONDITION existed so as to 22 be readily apparent to an ordinary observant person for a period 23 of 90 days or longer before the injury OR DAMAGE took place. 24 (2) As a condition to any recovery for injuries DEATH, 25 INJURY, OR PROPERTY DAMAGE sustained by reason of any A danger- 26 ous or defective CONDITION OF A public building, the injured 27 person WHO SUSTAINED THE INJURY OR DAMAGE, within 120 days from 03122'99 15 1 AFTER the time the injury OR DAMAGE occurred, shall serve a 2 notice on the responsible governmental agency. of the occurrence 3 of the injury and the defect. The notice shall specify the exact 4 location and OF THE PUBLIC BUILDING, THE nature of the defect 5 DANGEROUS OR DEFECTIVE CONDITION, the injury OR DAMAGE sustained, 6 and the names of the witnesses known at the time by the 7 claimant. 8 (3) The notice REQUIRED UNDER SUBSECTION (2) may be served 9 upon any individual, either personally , or by certified 10 mail, return receipt requested, UPON ANY INDIVIDUAL who may law- 11 fully be served with civil process directed against the responsi- 12 ble governmental agency, anything to the contrary in the charter 13 of any municipal corporation A POLITICAL SUBDIVISION 14 notwithstanding. If required by the legislative body or chief 15 administrative officer of the responsible governmental agency, 16 the claimant shall appear to testify, when IF physically able 17 to do so. , and THE CLAIMANT shall produce his witnesses 18 before the legislative body , OR a committee thereof OF THAT 19 BODY, the chief administrative officer , his OR THAT OFFICER'S 20 deputy, or a legal officer of the governmental agency, as 21 directed by the legislative body or by the chief administrative 22 officer of the responsible governmental agency, for examination 23 under oath as to the claim, the amount thereof OF THE CLAIM, 24 and the extent of the injury OR DAMAGE. Notice to the state of 25 Michigan shall be given as provided in section 4. No 26 (4) A PERSON SHALL NOT BRING AN action shall be brought 27 under the provisions of this section against any A 03122'99 16 1 governmental agency , other than a municipal corporation , 2 except for injury or loss suffered after July 1, 1965. 3 (5) IF THE PERSON WHO SUSTAINED THE INJURY OR DAMAGE IS 4 PHYSICALLY OR MENTALLY INCAPABLE OF GIVING THE NOTICE REQUIRED 5 UNDER SUBSECTION (2), THE PERSON SHALL SERVE THE NOTICE NOT MORE 6 THAN 180 DAYS AFTER THE TERMINATION OF THE DISABILITY. IN A 7 CIVIL ACTION IN WHICH THE PHYSICAL OR MENTAL CAPABILITY OF THE 8 PERSON IS IN DISPUTE, THE ISSUE SHALL BE DETERMINED BY THE TRIER 9 OF FACT. THIS SUBSECTION APPLIES TO ALL CHARTER PROVISIONS, 10 STATUTES, AND ORDINANCES THAT REQUIRE WRITTEN NOTICE TO A COUNTY 11 OR OTHER POLITICAL SUBDIVISION. 12 (6) FAILURE TO PROVIDE NOTICE WITHIN A TIME LIMIT PRESCRIBED 13 BY THIS SECTION IS AN ABSOLUTE BAR TO RECOVERY. 03122'99 Final page. GWH