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### STATE OF MICHIGAN

COURT OF APPEALS

RICHARD C. SECOSKY,

Plaintiff-Appellee, UNPUBLISHED October 21, 2014

v No. 316441
Washtenaw Circuit Court JADE ALEXIS SANDERS, LC No. 13-000331-NI

Defendant-Appellant.

YVONNE BEACH, a Prot ected Person, by and through BRAD BEACH, her Conservator, and ANDERSEN BEACH, a Minor, by his Next Friend BRAD BEACH,

Plaintiffs-Appellees,

v No. 316544
Washtenaw Circuit Court JADE SANDERS, LC No. 12-001172-NI

Defendant-Appellant,

and

RICHARD C. SECOSKY,

Defendant.

RICHARD C. SECOSKY,

Plaintiff-Appellee,

v No. 316688
Court of Claims UNIVERSITY OF MICHIGAN REGENTS, LC No. 13-000035-MZ

Defendant-Appellant.-2- Before: H OEKSTRA , P.J., and W ILDER and F ORT H OOD , JJ.

P ER C URIAM

.

These consolidated cases arise out of an accident on July 4, 2012, which occurred when a vehicle owned by the University of Michigan and driven by de fendant Jade Sanders collided with a motorcycle ridden by plaintiffs Rich ard Secosky and Yvonne Beach. In Docket No. 316441 and Docket No. 316544, Sanders appeals as of right the orders denying her motions for summary disposition on governmental immunity grounds in regard to the lawsuits brought against her by Secosky and Beach respectivel y. In Docket No. 316688, the University of Michigan Regents (“the University”) appeal as of right the order denying a motion for summary disposition in regard to Secosky’s lawsuit. B ecause Sanders was not acti ng within the course of her employment at the time of the accident, and thus was not entitled to the protections of governmental immunity, we affirm the trial cour t’s denial of summary disposition in Docket Nos. 316441 and 316544. Because Secosky failed to comply with the notice requirements of MCL 600.6431(1), and such failure mandates dismissal of Secosky’s suit against the University,
we reverse the trial court and remand for the entry of summary dispos ition in favor of the University in Docket No. 316688.

I. DOCKET NO. 316688

On appeal, the University argues that it is entitled to summary disposition because of Secosky’s failure to comply with th e notice requirements found in MCL 600.6431. 1 Specifically, the University identifies what it considers two defects in the notice provided by Secosky. First, the University notes that Secosky’s notice wa s signed by his attorney, and not Secosky, which the University asserts runs afoul of the requirement that the “clai mant” sign the notice. Second, the signature of Secosky’s attorney’s was not verifi ed before an officer authorized to administer oaths, which the University argues was al so a violation of MC L 600.6431(1).

We review the grant or denial of summary disposition de novo. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). Likewise, the applicability of gove rnmental immunity is

1 Secosky argues on appeal that this Court l acks jurisdiction in Docket No. 316688 because the University’s motion for summary disposition before the trial court merely asserted a lack of jurisdiction for failure to file the appropriate pr e-suit notice and did not assert its immunity as a governmental agency. Contrary to this argument, relying prim arily on Secosky’s failure to comply with MCL 600.6431, the University moved for summary disposition under MCR 2.116(C)(4), (C)(7), (C)(8), and (C)(10), including within its arguments th e assertion that the University was immune from suit on governmental immunity grounds. While the trial court did not expressly discuss governmental immunity, the tr ial court’s denial of the University’s motion,
which involved assertions of governmental immunity, neverthele ss vests us w ith jurisdiction under MCR 7.203(A)(1). See MCR 7.202(6)(a)(v); Conmy v Dep’t of Transp , 272 Mich App 138, 140; 724 NW2d 297 (2006).-3- a question of law that is reviewed de novo. County Rd Ass’n of Mich v Governor , 287 Mich App 95, 117-118; 782 NW2d 784 (2010). The specifi c issue of whether MCL 600.6431 requires dismissal of a plaintiff’s claim for failure to pr ovide the required notice in the manner prescribed in the statute involves a questi on of statutory interpretation, wh ich we also review de novo.
McCahan v Brennan , 492 Mich 730, 736; 822 NW2d 747 (2012).

When engaging in statutory in terpretation, a court’s primary aim is to discern and give effect to the Legislature’s intent. Nawrocki v Macomb Co Rd Comm , 463 Mich 143, 159; 615 NW2d 702 (2000). Because the most reliable eviden ce of the Legislature’s intent is the language of the statute, we begin with an examination of the statue’s plain language, affording words their common and ordinary meaning. Id. ; McCahan , 492 Mich at 736. “If the statutory language is clear and unambiguous, judicial construction is ne ither required nor permitted, and courts must apply the statute as written.” Sprenger v Bickle , 302 Mich App 400, 403; 839 NW2d 59 (2013) (citation omitted).

Generally, pursuant to MCL 691.1407(1), governm ental agencies are immune from tort liability when engaged in the exercise or disc harge of a governmental function. The government may, however, voluntarily subject itself to liability, and the Le gislature has done so with the enactment of six statutory exceptions to govern mental immunity, including the motor vehicle exception which renders governmental agencies “ liable for bodily injury and property damage resulting from the negligent operation by any offi cer, agent, or employee of the governmental agency, of a motor vehicle of which the govern mental agency is owner . . . .” MCL 691.1405.
See also McLean v Dearborn , 302 Mich App 68, 73; 836 NW2d 916 (2013). “However, because the government may voluntarily subj ect itself to liability, it may also place conditions or limitations on the liability imposed.” McCahan , 492 Mich at 736.

At issue in the present case is a prerequisite to the right to sue the state, specifically, MCL 600.6431, which conditions the right to sue th e state on the provision of notice consistent with the requirements in the statute. See McCahan , 492 Mich at 736-737, 743-745. In relevant part, this provision states:

(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of
claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, comm issions, boards, institutions, arms or agencies, stating the time when and the pl ace where such claim arose and in detail
the nature of the same and of the items of damage allege d or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant
before an officer authorized to ad minister oaths. [MCL 600.6431(1).]

The language of MCL 600.6431(1) is cl ear, and failure to satisfy its strictures is well-recognized to necessitate dismissal of a plaintiff’s acti on, even where the governmental agency has been otherwise put on notice of the plaintiff’s intent to sue. See McCahan , 492 Mich at 743-747. As the Court explained in McCahan , “[W]hen the Legislature specifi cally qualifies the ability to bring a claim against the state or its subdivisions on a plainti ff’s meeting certain requirements that the plaintiff fails to m eet, no saving construction—such as requiring a defendant to prove actual prejudice—is allowed.” Id. at 746.-4- In this case we consid er whether Secosky has sati sfied MCL 600.6431(1)’s express requirement that the notice must “be signed and verified by the claimant before an officer
authorized to administer oaths.” 2 Considering the pl ain language of the statute and the notice provided by Secosky in the pres ent case, it becomes readily apparent that Secosky’s notice was defective for two reasons. First, Secosky’s at torney, rather than Secosky, signed the notice in this case. Plainly, the statute requires the document to be “signed . . . by the claimant ,” and a claimant is, by definition, “a person who makes a claim.” Random House Webster’s College Dictionary (1992). See also Black’s Law Dictionary (9th ed) (defining “claimant” as “one who asserts a right or demand, esp. formally”). S ecosky, not his attorney, has made the claims supporting his lawsuit and, as the “claimant” in th is case, it was Secosk y’s signature which was required to afford proper notice to th e University pursuant to MCL 600.6431(1). 3 Second, not only did Secosky fail to sign the notice document, the notice was not verified before an officer authorized to administer oaths. Generally speaki ng, “verification” refers to “a certification of truth,” Jackson v Detroit Bd of Ed , 18 Mich App 73, 80; 170 NW 2d 489 (1969), or “[a] formal declaration made in the presence of an authorized officer . . . wh ereby one swears to the truth of the statements in the document,” Black’s Law Dic tionary (9th ed. 2009). By statute, other than instances where a particular officer is required, a justice, judge, clerk of a court, or a notary public may administer an oat h. MCL 600.1440(1). Thus, by the pl ain terms of the statute, a claimant must certify the truth of the notice before an officer author ized to administer oaths, such as a judge, clerk of a court, or notary public. S ecosky did not do so; instead, his attorney merely signed the document, unwitnessed by a notary public or other officer authorized to administer
oaths.

2 Secosky argues on appeal that the University waived its opportunity to object under MCL 600.6431 because the University did not immediately inform Secosky’s counsel of the defects in his notice, despite the request in the notice that the Univ ersity do so. This argument is unavailing. It was Secosky’s obligation, not the University’s, to comply with MCL 600.6431 and the University was under no ob ligation to advise S ecosky that his notic e was defective under MCL 600.6431. Far from waiving the issue, the Univ ersity raised the matter as an affirmative defense in its first responsive pleading to Secosky’ s complaint. The issue has not been waived.

3 In arguing against this result, on appeal, Seco sky raises numerous “what if” arguments, asking how a claimant could provide the required signat ure if he or she was, for instance, a minor, someone suffering from a physical disability ma king it impossible to si gn a document, or an
individual who was otherwise inca pacitated. In Secosky’s view, a plain reading of the statute would produce an “untenable” resu lt in such circumstances and we must therefore depart from the statute’s plain language. The hypothetical examples relied on by Secosky are inapposite, however, given that Secosky is not a minor, he is not incapacitated, a nd he suffers from no physical limitations which would have prevented his signature. On the facts of this case, we see no reason to determine when, if ever, the signature of a representative, such as a conservator or next friend, could suffice as that of a “claimant” under MCL 600.6431(1). In short, Secosky’s hypothetical concerns provide no basis on which to de part from the statute’s plain language or to excuse his failure to comply w ith the clear requiremen ts of MCL 600.6431(1).-5- Given Secosky’s failure to comply w ith MCL 600.6431(1), it follows that his claim against the University was precluded and summary disposition should have been granted. See
McCahan , 492 Mich at 733, 746-747, 752. In Docket No. 316688, we thus remand the case to the trial court for the entry of summary disposi tion in favor of the Un iversity of Michigan.

II. DOCKET NOS. 316441 AND 316544

On appeal, Sanders argues that summary disposition should have been granted under MCR 2.116(C)(7) and (C)(10) because she was a governmental employee entitled to the protections of government al immunity under MCL 691.1407(2). In particular, the parties dispute on appeal whether the accident occurred while Sanders was “in th e course of employment” as required for a governmental employee to claim immunity under MCL 691.1407(2).

When a claim against a governmental employee is barred by the assertion of governmental immunity, summary dispositi on is appropriate under MCR 2.116(C)(7). Petipren
v Jaskowski , 494 Mich 190, 201; 833 NW2d 2 47 (2013). We review the grant or denial of summary disposition de novo and the applicab ility of governmental immunity de novo. Maiden

, 461 Mich at 118; County Rd Ass’n of Mich , 287 Mich App at 117-11 8. “When reviewing a motion for summary disposition under MCR 2.116(C)(7 ), all well-pleaded allegations must be accepted as true and construed in favor of the nonmoving party, unless contradicted by any affidavits, depositions, admissions, or other documentary evidence submitted by the parties.” Pierce v Lansing , 265 Mich App 174, 177; 694 NW2d 65 (2005). “If no facts are in dispute, or if reasonable minds could not differ regarding the legal effect of the fact s, the question whether the claim is barred by governmental immunity is an issue of law.” Id

.
As an individual governmental employee, Sa nders seeks to claim immunity from suit under MCL 691.1407(2), which states:

Except as otherwise provided in this section, and without regard to the discretionary or ministeria l nature of the c onduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a gove rnmental agency is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or service or caused by the volunteer while acting on behalf of a governmental agency if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engage d in the exercise or discharge of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proxi mate cause of the injury or damage. [Emphasis added.]-6- Under this provision, the governmental employee b ears the burden of proving his entitlement to governmental immunity as an affirmative defense. Odom v Wayne Co , 482 Mich 459, 479; 760 NW2d 217 (2008).

The trial court denied Sanders’s motion for summary disposition because it determined
that the accident did not occur “i n the course of employment,” a nd the parties have framed their appellate arguments in terms of whether the accid ent involving Sanders occurr ed in the course of her employment. Relevant to this issue, whether an indivi dual governmental tortfeasor wasacting during the course of employment will generally be determined with reference to commonlaw tort and agency principles. Ross v Consumers Power Co , 420 Mich 567, 624 n 38; 363 NW2d 641 (1984). See also Backus v Kauffman , 238 Mich App 402, 407 & n 1; 605 NW2d 690 (1999). Thus, the necessary c onsiderations for whether a gove rnmental employee was acting within the course of his employment are “(1) the existence of an em ployment relationship, (2)
the circumstances of the work environment cr eated by the employment relationship, including the temporal and spatial boundaries established, and (3) the notion that the act in question was undertaken in furtherance of the employer’s purpose.” Niederhouse v Palmerton , 300 Mich App 625, 633; 836 NW2d 176 (2013).

The following undisputed facts, drawn from Sanders’s deposition, are relevant to a
determination of whether the acci dent occurred in the course of Sanders employment. In the summer of 2012, Sanders attended the University of Michigan for a public health fellowship with the University’s School of Public Health. As a part of the fellowship, Sanders was paid a stipend of $3,500 by the University for her eight- week internship with a nonprofit organization in Detroit. During the fellowship, Sanders served at her internship in Detroit from Monday to Thursday and attended seminars at the University on Friday. The stipend paid by the University
included access to a fleet of seven vehicles owne d by the University that could be used for both work and personal reasons. All 50 students in th e fellowship program had access to the vehicles, the keys to which were kept in the community kitchen at the hous ing for the fellowship students. There is no evidence that the University placed any specific restrictions or conditions on the use
of those vehicles.

On occasion, some of the fellowship students participated in what Sanders described as “organized recreational ac tivities” for which they could use the University’s vehicles. Students “who were interested” in such activities organize d the outings and requested permission from the fellowship program manager, who in turn sought approval from the program director, for the use of the vehicles. The outings were voluntary and Sanders in fact participated in only one such event. Specifically, a few days before July 4, 2012, one of the fellowship participants sent an email to the others fellows, indicating that she was “interested in taking a trip to Silver Lake for the 4th of July holiday.” Incl uded as recipients of the e-ma il were the program manager and program director, who Sanders “g uess[ed]” must have thereafter agreed to the event. Those individual fellowship students who wished to participate signed up for the outing. Sanders described the plans for the outing as follows: “We were going to spend the day on the lake,
swim in the lake. We also threw the football ar ound, and played volleyball there. So, we were just going to relax on the lake.”

On July 4th, the group took three vehicles—t wo minivans and a sedan—for the 30 or 40 minute drive to Silver Lake. A few participan ts volunteered to drive the vehicles, and though-7- Sanders did not drive to the lake , she volunteered to drive on the re turn trip. After spending four
hours or so at the lake—swimm ing, throwing a football, a nd playing volleyball—the group began their return trip back to the University. It was during this return trip that the vehicle driven by Sanders and the motorcycle ridden by Secosky and Beach collided. Secosky and Beach suffered significant injuries from the accident.

Given these facts, Sanders ar gues that she was acting in the course of her employment at
the time of the accident and that , therefore, she is entitled to governmental immunity under MCL 691.1407(2). In particular, Sanders emphasizes that she had use of the vehicle as part of her participation in the fellowship program, she ha d permission from the University to take the
vehicle to and from Silver Lake on the da y in question, and she was driving a group of fellowship students when the acciden t occurred. Sanders argues that, in these circumstances, her
actions occurred in the course of her employment at the University such that she is entitled to governmental immunity and summary disposition. In contrast, Secosky and Beach contend that the trip to Silver Lake did not further the University’s purpos e, but rather it amounted to a recreational trip, outside the temporal and spat ial boundaries of Sanders’s employment. Because Sanders’s journey to Silver Lake was undertaken for purely personal reasons, Secosky and Beach
assert that Sanders use of the vehicle did not oc cur in the course of her employment and she is, therefore, not entitled to the protections of governmental immunity under MCL 691.1407(2).

Given the undisputed facts, it is plain that Sanders was not acting in the course of her employment while driving the vehicle back from her visit to Silver Lake fo r the July 4th holiday. Accepting that Sanders had an employme nt relationship with the University, 4 the facts nonetheless demonstrate that Sanders’s voluntary participation in a purely recreational outing was not in furtherance of the University’s purpo se and it was outside th e circumstances of her work environment, including the temporal a nd spatial boundaries established by Sanders’s employment.

Specifically, in terms of the circumstances of Sanders’s work environment, her schedule typically involved Monday throug h Friday commitments for the University, with Monday through Thursday spent at her in ternship in Detroit and Friday s devoted to seminars at the University. Because Sanders went to Silver La ke on July 4, a national holiday on which Sanders

4 On appeal, Beach makes the cursory assertion that Sanders’s participation in the fellowship program as essentially a student may not establish an employment relationship. The argument is not well-developed and may be considered abandoned given Beach’s insufficient briefing of the
matter. See Peterson Novelties, Inc v City of Berkley , 259 Mich App 1, 14; 672 NW2d 351 (2003). In addition, this asserti on runs counter to Beach’s comp laint in which she maintained that Sanders had an employment relationship with the University. Given Beach’s earlier concession of such a relationship, we see no re ason to consider the matter further. See Angott v Chubb Group Ins , 270 Mich App 465, 470; 717 NW2d 341 (2006) (“A party is bound by its pleadings.”). And, in any ev ent, individuals may have dua l status as both students and employees. See Regents of Univ of Mich v Mi ch Employment Relations Comm , 389 Mich 96, 110; 204 NW2d 218 (1973).-8- had no work obligations for the University, Sanders was outside both the temporal and spatial limits of her employment with the University. That is, no evidence suggests that Sanders’s employment duties required travel to and from Silver Lake on th e Fourth of July, or that she performed any work related duties during said outing. See generally Rogers v JB Hunt Transp,
Inc , 466 Mich 645, 651; 649 NW2d 23, 26 (2002) (“[I]t is well established that an employee's negligence committed while on a frolic or detour, or after hours, is not imputed to the employer.” (internal citations omitted)). In short, given the nature of Sanders’s employment with the University and her temporal and spatial boundaries, there is simply no basis on which to conclude that the trip fell within the circ umstances of her work environment. Cf. Backus , 238 Mich App at 409 (concluding teacher driving between two schools during the middle of her workday, from one teaching assignment to anothe r, as was her customar y fashion, was in the course of her employment where there was nothing to suggest that her travel was “motivated by any purpose other than discharg ing her duties . . .”).

Most importantly, it is readily apparent that Sanders undertook the recreational trip to the lake for purely personal reasons in order that she could, along w ith other partic ipants, enjoy a relaxing day at the beach. The trip was organized by fellowship participan ts, not the University, and participation in the outing was purely voluntary. Attendance at a voluntary, purely social, off-duty event, even where the event is organi zed and attended by fell ow employees, does not— even if the event arguably improves morale or employee relationships—f urther the employer’s purpose, and such purely personal activity is thus not within an employee’s course of employment. See Rowe v Colwell , 67 Mich App 543, 551-552; 241 NW2d 284 (1976) (rejecting claim that employee’s attendance at “a purely social party held at off-duty hours at the boss’s home” was within the scope of employment ev en though the event arguably improved employee relationships). Given the purely social and recreational nature of the outing, it cannot be said to further the University’s purpose.

Indeed, far from requiring part icipation in the trip as part of Sanders’s employment or benefiting from the outing, the only involvement the Un iversity had with the trip consisted of the permission given to the participants to take University owned vehicles. The University’s approval of the use of the vehicles does not, howev er, lead to the conclusion that when Sanders drove on the return trip from Silver Lake she did so as part of her employ ment. On the contrary, the University undisputedly allowed the vehicles to be used by th e participants for “personal” reasons, i.e., reasons that were no t undertaken in furtherance of the University’s purpose. The voluntary, recreational trip in question was plainl y one such “personal” use of the vehicles,
unrelated to Sanders’s employment responsibilit ies. See generally id. at 551-552. 5 In sum, on

5 See also Lyons v Ford Motor Co , 330 Mich 684, 687; 48 NW2d 154 (1951) (holding after
hours use of vehicle not in the course of em ployment where employee was “furnished a car by his employer, not only for use in his employer’s business, but also for his personal use”); Lulay v

Parvin , 359 Ill App 3d 653, 657; 834 NE2d 989 (2005) (holding a company that allowed employees to use company motorcycles for personal use not liable where employees used the motorcycles after hours for personal enjoyment); Gregg v Cooper , 812 NE2d 210, 218 (Ind Ct App 2004) (concluding employee who had agreement allowing his use of employer’s tractor in-9- the undisputed facts, it is clear that Sanders an d the other participants used the vehicle on the Fourth of July for a purely personal, recrea tional outing, unrelated to furtherance of the University’s purpose.

Because Sanders’s personal use of the vehicl e was outside the circumstances of her work environment and unrelated to furthering her empl oyer’s purpose, her use of the vehicle was not undertaken in the course of her employment. 6 Consequently, she is not entitled to the protections of MCL 691.1407(2) and the trial c ourt properly denied her motion for summary disposition on governmental immunity grounds.

We affirm in Docket Nos. 316441 and 316544, but we reverse and remand for the entry of summary disposition in Docket No. 316688 in fa vor of the University. We do not retain jurisdiction.

/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder
/s/ Karen M. Fort Hood

exchange for labor was not within the scope of employment where employee was using tractor for his own benefit at the time of the collision).

6 In contrast to this conclusion, on appeal, Sanders argues that this case is nearly identical to the
facts in Niederhouse , 300 Mich App 625, and that, therefore, the holding in Niederhouse that the
defendant acted in the course of his employment supports her case. However, unlike
Niederhouse , Sanders was not acting at the time of the accident in compliance with the expressed wishes of her employer. That is, in Niederhouse , the employer previously requested that the employee drive the airboat at the festival, whil e in comparison, Sanders and the other fellowship students who drove University vehi cles during the trip to Silver Lake volunteered themselves without any interaction with the Univ ersity on the subject. Further, in Niederhouse , the employee drove the airboat at a festival organi zed and run by the Sheri ff’s department for the benefit of the general public; in such circumstances, the employee’s act of driving of the airboat, while not part of his typical duties, furthered th e organization’s purpose in serving the public. As discussed, Sanders’s trip was, in contrast, or ganized by the fellowship students themselves and undertaken for purely persona l reasons. Accordingly, Niederhouse is distinguishable from this case, and does not support Sa nders’s arguments on appeal.