Woman injured at MSU hockey game cannot sue

In Ward v. MSU, the Appellate Court determined that the plaintiff's case must be dismissed, without reaching the merits of her claim.  She was struck by a puck at a college hockey game, and claimed that her injury resulted from a building defect:  the absence of a plexiglass shield protecting one section of spectators.  While governmental entities within Michigan are immune from ordinary negligence, an exception makes them liable for some injuries caused by hazardous conditions maintained in public sections of buildings.

In order for the public building defect exception to apply, however, an injury victim is required to serve a formal notice on the governmental entity.  This notice requirement is intended to assure that the government have an opportunity to investigate the alleged injury and defect within a reasonable time period.  Even though MSU acknowledged that it was aware of this particular incident at the time it happened, and even though its employees had assisted Ward after she was hurt, MSU's attorneys claimed that Ward's suit must be dismissed because she did not serve the University with the formal notice required.  MSU did not claim that it suffered prejudice by the lack of a formal notice.

Nevertheless, the Court deemed that it was bound by the Engler majority's holding in a previous Supreme Court case, Chambers v. Wayne County Airport Authority.   In Chambers, a 5-4 majority of the Court held that the failure to serve the formal notice is fatal to a claim, even without prejudice to the governmental entity.  The majority held that even the preparation of a concomitant Incident Report by the defendant would not fulfill the Notice requirement, and the present court found nothing in Ward's case to distinguish it from Chambers. 

Ms. Ward's attorneys also argued that MSU should not be immune from damages for an injury arising out of the operation of the athletic department which generated 3.8 million dollars in excess revenue.  The attorneys for MSU suggested that the intercollegiate hockey team actually lost money and that the athletic department, while it generated a cash flow, was not intended as a profit-making "pecuniary" endeavor.  The Court of Appeals accepted both arguments, relying heavily on a prior decision involving the University of Michigan's gymnastics team, and a public policy holding that the profit-making exception must be narrowly construed to activities "primarily" intended to secure a profit.