                          STATE OF MICHIGAN

                           COURT OF APPEALS



JENNIFER CURTS and GERALD CURTS,                                    UNPUBLISHED
                                                                    March 23, 2017
               Plaintiff-Appellants,

v                                                                   No. 330525
                                                                    Genesee Circuit Court
MOTT COMMUNITY COLLEGE and MOTT                                     LC No. 15-105037-CK
COMMUNITY COLLEGE BOARD OF
TRUSTEES,

               Defendant-Appellees.


Before: M. J. KELLY, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

     Plaintiffs, Jennifer and Gerald Curts,1 appeal as of right the trial court’s order granting
summary disposition in favor of defendant Mott Community College Board of Trustees (Mott
Community College). For the reasons stated in this opinion, we affirm.

                                        I. BASIC FACTS

        In October 2014, Curts, a student at Mott Community College, was injured when she
tripped and fell on a step in a classroom auditorium. As a result of her fall, Curts received a
laceration on her lip and sustained severe injuries to her neck, back, and hip. In August 2015,
Curts filed a negligence suit against Mott Community College, and her husband brought a claim
for loss of consortium.2

         In response, Mott Community College filed a motion for summary disposition, asserting
that it was a governmental agency entitled to governmental immunity under the governmental
tort liability act, MCL 691.1401 et seq. The college also asserted that any attempt to amend the
complaint to plead in avoidance of governmental immunity would be futile because Curts had


1
  Because plaintiff Gerald Curts only alleged derivative claims based on plaintiff Jennifer Curts’s
injuries, we will refer to Jennifer Curts, individually, as “Curts” in this opinion.
2
  Curts’s original complaint named the Mott Community College Education Association as the
sole defendant, but she later voluntarily dismissed that claim without prejudice.


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failed to provide the college with statutory notice as required under the public building exception
in MCL 691.1406. Curts countered that she believed the college was not a governmental agency
because it was not created by a local vote, the constitution, or an act of the legislature. In the
alternative, she asked the court to grant her leave to amend her complaint to plead in avoidance
of governmental immunity. She claimed that she could satisfy the statutory notice requirements
because a police report detailing the incident and her injuries had been filed, because Mott
Community College’s insurer had sent her a letter indicating that it had been notified by the
school about her injury, and because she averred in an affidavit that she had met with and
discussed the incident with several Mott Community College employees. In a reply brief, Mott
Community College argued that the police report, insurance letter, and affidavit were insufficient
to satisfy the notice requirements.

         After oral argument, the trial court held that Mott Community College was a
governmental agency entitled to governmental immunity as provided in the governmental tort
liability act. Further, the court held that Curts had failed to give proper notice under MCL
691.1406, so the public building exemption did not apply. Accordingly, the court granted the
college’s motion for summary disposition and did not grant Curts’s motion for leave to amend
her complaint.

       This appeal follows.

                              II. GOVERNMENTAL IMMUNITY

                                 A. STANDARD OF REVIEW

        On appeal, Curts argues that the trial court erred in granting the college summary
disposition and that it abused its discretion in denying her motion for leave to amend her
complaint. A trial court’s decision to grant summary disposition is reviewed de novo. Barnard
Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618
(2009). Likewise, the applicability of governmental immunity is a question of law that we
review de novo. Dybata v Wayne Co, 287 Mich App 635, 638; 791 NW2d 499 (2010). A trial
court’s decision to deny a leave to amend a pleading is reviewed for an abuse of discretion.
Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997).

                                         B. ANALYSIS

        The governmental tort liability act “broadly shields and grants to governmental agencies
immunity from tort liability when an agency is engaged in the exercise or discharge of a
governmental function.” Moraccini v City of Sterling Hts, 296 Mich App 387, 391; 822 NW2d
799 (2012), citing MCL 691.1407(1). Curts argues that it is not “facially evident” that Mott
Community College is a governmental agency. She asserts that, under Hall v Medical College of
Ohio, 742 F 2d 299 (CA 6, 1984), whether a college is actually a governmental agency should be
determined on a case-by-case basis and that it is a “misuse of justice” to merely grant summary
disposition on the assumption that she should have known that Mott Community College was a
governmental agency. Hall, however, addressed immunity under the Eleventh Amendment of
the United States Constitution, and is inapposite to this case. See id. at 302. Moreover, the plain
language of the governmental tort liability act provides that by definition Mott Community

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College is a governmental agency for purposes of the act. See MCL 691.1401(1)(a) (defining
“governmental agency” as either “this state” or a “political subdivision.”) and MCL
691.1401(1)(e) (defining a “political subdivision” in relevant part as a “community college
district.”). Therefore, the trial court did not err in finding that Mott Community College was a
governmental agency entitled to governmental immunity under the governmental tort liability
act.

        Additionally, the trial court did not abuse its discretion by denying Curts’s motion for
leave to amend her complaint to plead in avoidance of governmental immunity. Curts argues
that because the public building exception to governmental immunity, MCL 691.1406, applies in
her case she should be allowed to proceed. The trial court, however, found that an amendment
would be futile because Curts cannot satisfy the statutory notice requirements for the public
building exception. MCL 691.1406 provides:

       As a condition to any recovery for injuries sustained by reason of any dangerous
       or defective public building, the injured person, within 120 days from the time the
       injury occurred, shall serve a notice on the responsible governmental agency of
       the occurrence of the injury and the defect. The notice shall specify the exact
       location and nature of the defect, the injury sustained and the names of the
       witnesses known at the time by the claimant.

               The notice may be served upon any individual, either personally, or by
       certified mail, return receipt requested, who may lawfully be served with civil
       process directed against the responsible governmental agency, anything to the
       contrary in the charter of any municipal corporation notwithstanding.

Curts argues that she satisfied the notice requirement. In support, she directs our attention to a
campus police report filed after her accident, a letter she received from Mott Community
College’s insurance provider that indicated the college had notified the insurance company about
her accident and injuries, and an affidavit she signed stating that she had discussed the accident
and her injuries with various employees at Mott Community College.

       In Ward v Michigan State Univ (On Remand), 287 Mich App 76, 81: 782 NW2d 514
(2010), this Court held that the statute’s notice requirements were a precondition to recovery
under the public building exception. Further, we held:

       The statute specifies who must serve the notice (“the injured person”), on whom
       the notice must be served (“any individual . . . who may lawfully be served with
       civil process directed against the responsible governmental agency”), what
       information the notice must contain (“the exact location and nature of the defect,
       the injury sustained and the names of the witnesses known at the time by the
       claimant”), and the manner in which the notice must be served (“either personally,
       or by certified mail, return receipt requested”). Although the statute does not
       explicitly provide, it patently implies that these elements of the required notice be
       in writing. [Id.]




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Here, it is undisputed that Curts, the injured person, did not serve a written notice on anyone.
Although she orally recounted her accident to the campus police, the police report was
undeniably not a written notice that Curts served on Mott Community College. Further, the
police report only states in general terms that Curts tripped on a step while leaving the
auditorium after someone pulled the fire alarm. It does not state which step she tripped on, how
the step was defective, or how the defective step caused her fall and injuries. The police report
also does not state all of the injuries sustained by Curts, nor does it provide the names of any
witnesses known to Curts. As a result, the police report was insufficient to satisfy the notice
statutory notice requirements.

        Further, although Curts had oral conversations about the incident with various individuals
associated with Mott Community College, those communications are also insufficient to satisfy
the notice requirement. It is axiomatic that a written notice requirement cannot be satisfied by an
oral account of the incident. Thus, even assuming that Curts’s oral accounts contained sufficient
detail to otherwise satisfy MCL 691.1406, the fact that the conversations were not in a writing
properly served by Curts on an appropriate individual is fatal to her claim.

       Affirmed.

                                                            /s/ Michael J. Kelly
                                                            /s/ William B. Murphy
                                                            /s/ Amy Ronayne Krause




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