Shifting Gears ~ Dondi Vesprini - Attorney

As of the date that I am writing this article, the signs of Spring are becoming more and more apparent with increasing sunshine, somewhat warmer temperatures, Detroit Tigers opening day and the appearance of more and more motorcycles on the road.   While these signs are welcome with open arms, there are also some sure signs of a Michigan Spring that are not welcome at all.  As if Michigan roads weren’t bad enough (right Governor Whitmer?), continuing jumps and dips in temperatures that we often see in the early Spring can cause road conditions to deteriorate.  This is the concept of “freeze-thawing” where water seeps into the cracks or crevices of the road surface and then expands when it freezes.  This results in the road surface worsening and eventually causes raised areas which break away when driven over leaving potholes in the road surface.  The sad reality I have noticed from my experience representing bikers who have been injured when they hit these potholes is that many times these roads go unrepaired by the responsible agencies until after an accident has happened.  Remarkably, despite the fact that many of these potholes will have been there for weeks or even months before the accident without repair, work crews in some of my cases have been known to repair a pothole within 24 hours after an accident happens.   If the defective highway is under the jurisdiction of a governmental agency (i.e., Michigan Department of Transportation or a county road commission) and the injury is due to the governmental agencies failure to maintain the highway in reasonable repair and in a condition reasonably safe and fit for public travel, the injured person may make a claim against the governmental agency for his/her damages. It is always important to get an attorney involved as early as possible in any type of motorcycle accident, but it is perhaps no more important than in an accident involving a road defect.  Besides the obvious advantages of having an attorney involved to investigate the claim early on while the evidence is “fresh” and hopefully the defect is not repaired yet, a failure to contact an attorney immediately after the accident puts the injured person at risk of being totally barred from making a claim for compensation at all. This is because Michigan law requires that as a condition to any recovery for injuries sustained due to a defective highway, the injured person must serve a notice upon the responsible governmental agency of the occurrence of the injury and the defect.  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 by the claimant. If this notice is not provided within 120 days from the date of the injury, the injured person is barred from any recovery from the governmental agency!  Further, if the defect is of a county road under the jurisdiction of a county road commission, the notice must be provided within 60 days of the date of the injury or the injured person is barred from making a claim!    Many times, especially in cases of severe injury, an injured person may not be physically capable or may not have it as a priority to contact an attorney within the first 120 days, let alone 60 days, after an accident.  Likewise, when the injured motorcyclist is killed due to a highway defect, the family may not contact an attorney within the first 120 days, let alone 60 days, after the accident.  The law does not afford any sympathy in these situations.  If a notice was not provided within the applicable timeframe, the claim is barred.  Period. Therefore, it is vital to contact an attorney immediately after an injury due to a highway defect.  Not only can an attorney assist you with getting a notice in within the applicable timeframe, but the attorney can draft a proper notice with you.  The law requires very specific information to be included in the notice and courts have been increasingly critical on inspecting notices to make sure the required information is included.  Also, depending on the circumstances, the notice may also need to be provided to other judicial or governmental agencies in addition to that responsible for the defect itself. Given the specific information that is required by law to be in the notice, it can take some time for an attorney to gather said information to properly draft a notice that will pass judicial muster.  So, contact an attorney as early as possible as opposed to waiting until days before the timeframe runs, thinking that will be enough time. If you are involved in an accident due to a highway defect, get an attorney involved early so your otherwise valid claim is not barred by this incredibly harsh technicality!   As always, if anyone has any questions or if I can be of legal assistance to you or anyone you know dealing with this issue or who has been injured in a motorcycle accident, please don’t hesitate to contact me as I deal with these types of claims on a daily basis on behalf of injured motorcyclists statewide.  Further, if you would like to have me come out to your Region to speak or give a presentation on the legal rights of an injured motorcyclist or on any specific topic that your region may be curious about, please don’t hesitate to give me a call at (248-569-4646) or shoot me an e-mail at Dondi@buckfirelaw.com.  I give presentations to Regions state-wide and there is never a charge associated with having me out.  I enjoy having the opportunity to come out and meet motorcycle enthusiasts from all parts of our State!