Barbara a Kozak v. City of Lincoln Park ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
BARBARA A. KOZAK and KEVIN J. KOZAK, UNPUBLISHED
July 21, 2015
Plaintiffs-Appellants,
v No. 319797
Wayne Circuit Court
CITY OF LINCOLN PARK, LC No. 12-010845-NO
Defendant-Appellee.
Before: BECKERING, P.J., and CAVANAGH and SAAD, JJ.
BECKERING, P.J. (dissenting).
In this personal injury action, Plaintiffs Barbara and Kevin Kozak are seeking recovery
for injuries Barbara sustained when she tripped and fell while crossing a street in the City of
Lincoln Park due to an approximately three-inch drop in the roadway running down the center of
the street. I respectfully dissent from the majority opinion. In my view, the trial court erred in
granting defendant’s motion for summary disposition because, despite finding that the condition
of the roadway at issue was “absolutely” unreasonably unsafe, the court misinterpreted the
language in Wilson v Alpena Co Rd Comm, 474 Mich. 161; 713 NW2d 717 (2006), and
concluded that an unrebutted affidavit signed by one of defendant’s employees concerning his
opinion that the roadway was not unsafe required dismissal of the case. I would find that,
consistent with Wilson, a plaintiff does not need to proffer evidence that literally describes or
proves what a reasonable road commission would do under the facts of the instant case, e.g., a
series of affidavits prepared by road commissions or other governmental agencies regarding what
they would have done if they were aware of the defect on which plaintiff was injured. Instead, to
survive a motion for summary disposition, plaintiffs may submit evidence from which an
inference may be drawn “that a reasonable road commission, aware of this particular condition,
would have understood it posed an unreasonable threat to safe public travel and would have
addressed it.” Id. at 169. The majority’s interpretation of Wilson, with which I disagree, would
lead to nothing but self-serving affidavits by road commissions—for themselves and other road
commissions—in order to thwart liability arising from their failure to keep roadways in
reasonable repair. Because plaintiff produced photographic evidence from which a reasonable
juror could conclude that defendant failed to maintain the roadway in reasonable repair such that
it was not reasonably safe and convenient for public travel, I would reverse the trial court’s grant
of summary disposition and remand for further proceedings.
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I. PERTINENT FACTS AND PROCEDURAL HISTORY
Between 4:00 p.m. and 6:00 p.m. on February 23, 2012, Barbara was crossing the street
in front of 813 Kings Highway, Lincoln Park, Michigan. She was house shopping with Kevin
and planning to look at the property adjacent to 813 Kings Highway. At her deposition, Barbara
explained, “I was walking [across the street] and then all of a sudden I wasn’t anymore. The
ground fell from underneath me.” After she fell, she noticed the “drop-off” or elevation
difference in the road, which she did not see when approaching from the raised side of the
roadway.
Plaintiffs filed this action alleging that defendant was liable for Barbara’s injuries
pursuant to the highway exception to governmental immunity because it breached its duty to
maintain the roadway in reasonable repair. Plaintiffs alleged that Barbara sustained “grievous
and painful” injuries from the fall, including to her knee and lower back.
Mary Uncapher resided at 819 Kings Highway at the time of the incident, which was next
door to a house that was for sale. She remembered a woman falling in front of the house next
door to her home. She testified at her deposition that the crack or difference in elevation in the
road had been present for “[p]robably a few years,” although she was unsure when the elevation
difference grew to be approximately three inches.1
Plaintiffs produced photographs of the subject defect. The photographs reveal a three-
inch difference in height—as depicted with a measuring tape—between each lane of the two-lane
roadway for what appears to be an extended length of the roadway, much like a fault line running
down the middle of the road.
Robert Bartok, the Director of Public Services for defendant, who is responsible for
roadways and sidewalks under defendant’s jurisdiction, prepared an affidavit after the incident.
He stated that the condition that allegedly caused Barbara’s injuries, which he described as “a
difference in elevation between two slaps [sic] of pavement that run in the center of Kings
Highway near 813 Kings Highway,” did “not impact vehicular traffic” and was “not at any
pedestrian walkway or crosswalk.” He stated that he was unaware of any other accidents that
have occurred in the area due to the elevation difference and that, “[i]n [his] opinion as the
Director of Public Services for the City of Lincoln Park, this condition does not render the
highway either unsafe or inconvenient for public travel.” Likewise, he stated, “I believe the
highway in this area is in fact reasonably safe and convenient for public travel.”
Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and
(C)(10). Defendant argued the highway exception to governmental immunity was not triggered
1
Uncapher also testified that defendant made the following repairs 12 to 15 years before her
deposition: “They resurfaced by my driveway because there was water from the waterlines
seeping. It was washing stuff away. So they put, I think, four or five new cement squares in. It
wasn’t elevated. And then they blacktopped where the thing was. The deviation that you’re
saying, they had that blacktopped.”
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in this case because there was no admissible evidence demonstrating that it had failed to
maintain the road on which Barbara fell so that it was reasonably safe and convenient for public
travel. Defendant noted that the area where Barbara fell “was mid-block” and not designed for
pedestrian travel.2 Defendant asserted that its records did not include any indication of other
injuries or complaints related to the area and argued that plaintiffs had failed to submit any
evidence to contradict Bartok’s affidavit opining that the road was reasonably safe. Defendant
claimed that in light of the language in Wilson, 474 Mich. 161, which requires a plaintiff to
present evidence that a reasonable road commission that was aware of the condition would have
believed that it posed an unreasonable threat to public travel and addressed it, it was entitled to
summary disposition.
Plaintiffs opposed defendant’s motion, asserting that “public travel” under MCL
691.1402(1) includes pedestrian traffic, not just vehicular traffic. Further, they contested
defendant’s claim that the roadway was in reasonable repair and submitted their photographic
evidence that depicted an elevation difference of approximately three inches, along with
Barbara’s and Uncapher’s deposition testimony.3 Thus, they argued, they had created a question
of fact regarding whether it was maintained in reasonable repair. Plaintiffs also cited the two-
inch presumption with regard to vertical discontinuities in sidewalks under MCL 691.1402a.
With regard to Wilson, 474 Mich. 161, and Ellerbee v City of Detroit, unpublished opinion per
curiam of the Court of Appeals, issued June 13, 2013 (Docket No. 308952), cited by defendant in
its motion, plaintiffs argued that both addressed whether a defendant had notice of a defect 30
days before an accident and did not negate plaintiffs’ “evidence of defect.” Additionally,
plaintiffs asserted that the deposition testimony of Uncapher met the notice requirements of the
highway exception to governmental immunity.4
At a hearing on defendant’s motion, the trial court stated:
Listen, I’ve looked at your pictures. I agree with you; they should have fixed it[,]
but that’s not the standard. Do I think it’s unreasonably safe [sic]? I absolutely
do, but that’s not the standard. I can’t use the sidewalk with the two-inch rule; it’s
a whole different statute.[5] It’s a specific statute to sidewalks.
2
In its reply brief, defendant continued this theme by asserting that one fall alone—“not in a
crosswalk, sidewalk, or trailway”—does not demonstrate that the roadway was unsafe.
3
Plaintiffs also attempted to rely on inadmissible hearsay evidence submitted in a report by their
private investigator.
4
At the motion hearing, defendant clarified that “[w]e’re not contending [that] this is a notice
case.” Plaintiffs also point out in their appellate brief that notice was not at issue at the motion
hearing and is not at issue on appeal. Thus, defendant’s discussion about the lack of prior
injuries was apparently proffered to support its argument that it was unaware that the condition at
issue posed an unreasonable risk of danger.
5
The language of MCL 691.1402a(1)(a)(emphasis added) in effect at the time of the incident
clearly indicated that the section only applied to “the existence of a defect in a sidewalk,
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After further argument, the trial court concluded:
Let me quote a little bit from Wilson where it states, “[W]hile all parties
concede that there was notice of certain problems that the roadway was bumpy
and required frequent patching, these problems do not invariably lead to the
conclusion that the road was not reasonably safe for public traffic [sic]. It may be
that a road can be so bumpy that [it] is not reasonably safe, but to prove her case
the plaintiff must present evidence that a reasonable road commission, aware of
this particular condition, would have understood it posed an unreasonable threat
to safe public travel and would have addressed it.”
The only thing I have is an un-rebutted affidavit from this Robert Bartock
[sic] that you have not responded to. I have to grant this motion, counsel. Motion
is granted.”
The trial court entered an order granting defendant’s motion for summary disposition for the
reasons stated on the record. The trial court also denied plaintiffs’ motion for reconsideration.
II. ANALYSIS
On appeal, plaintiffs argue that the trial court erred in granting defendant’s motion for
summary disposition because it misinterpreted the language in Wilson and erroneously found that
plaintiffs’ photographic evidence did not establish a genuine issue of material fact. This Court
reviews de novo a trial court’s grant or denial of summary disposition. Moraccini v Sterling Hts,
296 Mich. App. 387, 391; 822 NW2d 799 (2012). This Court also reviews de novo “[t]he
applicability of governmental immunity and the statutory exceptions to immunity,” id., as well
questions of law, Rains v Rains, 301 Mich. App. 313, 325; 836 NW2d 709 (2013).
The trial court granted defendant’s motion for summary disposition under MCR
2.116(C)(7) (governmental immunity) and (C)(10) (no genuine issue of material fact). “A
defendant is entitled to summary disposition under MCR 2.116(C)(7) if the plaintiff’s claims are
barred because of immunity granted by law.” Pew v Michigan State Univ, 307 Mich. App. 328,
331-332; 859 NW2d 246 (2014). “To survive a (C)(7) motion based on governmental immunity,
trailway, crosswalk, or other installation outside of the improved portion of the highway designed
for vehicular travel.” Likewise, the rebuttable inference created when a discontinuity defect is
less than two inches also specifically related to the maintenance of a “sidewalk, trailway,
crosswalk, or other installation outside of the improved portion of the highway designed for
vehicular travel.” MCL 691.1402a. Therefore, there is no indication in MCL 691.1402a, or
MCL 691.1402, that the Legislature intended the language of MCL 691.1402a to create a
presumption or a standard that should be considered with regard to defendant’s duty to maintain
the improved portion of a highway designed for vehicular travel. In any event, contrary to
defendant’s assertions in its brief, plaintiffs do not raise the applicability of the two-inch rule on
appeal and it is not before us.
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a plaintiff must allege facts justifying the application of an exception to governmental immunity.
In reviewing a (C)(7) motion, a court must accept all well-pleaded allegations as true and
construe them in favor of the nonmoving party.” Tellin v Forsyth Twp, 291 Mich. App. 692, 698;
806 NW2d 359 (2011) (citations and quotation marks omitted). “If the facts are not in dispute
and reasonable minds could not differ concerning the legal effect of those facts, whether the
claim is barred by immunity is a question for the court to decide as a matter of law.” Beals v
Michigan, __ Mich __; __ NW2d __ (Docket No. 149901, issued June 18, 2015), slip op at 7
(citation and quotation marks omitted). “However, if a question of fact exists to the extent
that factual development could provide a basis for recovery, dismissal is inappropriate.” Dybata
v Wayne Co, 287 Mich. App. 635, 637-638; 791 NW2d 499 (2010).
A motion made under MCR 2.116(C)(10) “should be granted when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.” Nuculovic
v Hill, 287 Mich. App. 58, 61; 783 NW2d 124 (2010). “There is a genuine issue of material fact
when reasonable minds could differ on an issue after viewing the record in the light most
favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich. 419, 425; 751
NW2d 8 (2008). “This Court is liberal in finding genuine issues of material fact.” Jimkoski v
Shupe, 282 Mich. App. 1, 4-5; 763 NW2d 1 (2008).
Under the Michigan governmental immunity act, MCL 691.1401 et seq.,6 governmental
agencies have the benefit of extensive immunity from tort liability while they are “engaged in the
exercise or discharge of a governmental function.” MCL 691.1407(1). See also Plunkett v Dep’t
of Transp, 286 Mich. App. 168, 181; 779 NW2d 263 (2009) (stating same). Defendant enjoys the
governmental immunity established by the statute because municipal corporations qualify as
governmental agencies. Weaver v Detroit, 252 Mich. App. 239, 243; 651 NW2d 482 (2002). The
act includes several narrow exceptions to this immunity. At issue in this case is the “highway
exception,” which, in relevant part, provides the following:
Each governmental agency having jurisdiction over a highway shall maintain the
highway in reasonable repair so that it is reasonably safe and convenient for
public travel. A person who sustains bodily injury or damage to his or her
property by reason of failure of a governmental agency to keep a highway under
its jurisdiction in reasonable repair and in a condition reasonably safe and fit for
travel may recover the damages suffered by him or her from the governmental
agency. [MCL 691.1402(1).]
The definition of “highway” includes, among other things, “a public highway, road, or street that
is open for public travel.” MCL 691.1401(e). The parties do not dispute that the street on which
plaintiff sustained her injuries was a public road that was subject to defendant’s jurisdiction.
6
The statutory language cited herein was in effect when Barbara incurred her injuries on
February 23, 2012. See Moraccini, 296 Mich. App. at 389 n 1 (stating that the language of an
amended section of the governmental immunity act was not applicable in that case because the
incident occurred before the effective date of the amendment).
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The Michigan Supreme Court has stated that “the immunity conferred upon
governmental agencies is broad, and the statutory exceptions thereto are to be narrowly
construed.” Nawrocki v Macomb Co Rd Comm, 463 Mich. 143, 158; 615 NW2d 702 (2000).
Accordingly, “[a]n action may not be maintained under the highway exception unless it is clearly
within the scope and meaning of the statute.” Hatch v Grand Haven Charter Twp, 461 Mich.
457, 464; 606 NW2d 633 (2000).
Under MCL 691.1402(1), defendant has a basic duty to “maintain [a] highway [under its
jurisdiction] in reasonable repair so that it is reasonably safe and convenient for public travel.”
MCL 691.1402(1). See also Nawrocki, 463 Mich. at 160 (stating same). This statutory language
only comprises one duty, i.e., to “maintain [a] highway in reasonable repair.”7 Additionally,
“[i]n order to show that a governmental agency,” including a municipality, “failed to ‘maintain
[a] highway in reasonable repair,’ a plaintiff must demonstrate that a ‘defect’ exists in the
highway.” Estate of Buckner ex rel Rashid v Lansing, 480 Mich. 1243, 1244; 747 NW2d 231
(2008), citing Nawrocki, 463 Mich. at 158, and Haliw v Sterling Heights, 464 Mich. 297, 309 n 9;
627 NW2d 581 (2001).
Contrary to defendant’s suggestion before the trial court and on appeal, the Supreme
Court has concluded that the highway exception includes a duty to “protect pedestrians from
dangerous or defective conditions in the improved portion of the highway designed for vehicular
travel, even when the injury does not arise as a result of a vehicular accident.” Nawrocki, 463
Mich. at 162-163; see also Sebring v City of Berkley, 247 Mich. App. 666, 680-681; 637 NW2d
552 (2001) (“[T]he plain language of the highway exception cannot be construed to afford
protection only when a dangerous or defective condition ‘of the improved portion of the highway
designed for vehicular travel’ affects vehicular travel. If the alleged dangerous condition is
located in the actual roadbed designed for vehicular travel, then the highway exception applies
and liability can attach.”) (Internal quotation marks and citations omitted).
At the motion hearing, the trial court granted defendant’s motion for summary disposition
based on its understanding of plaintiffs’ burden under Wilson, 474 Mich. at 169, and its finding
that plaintiffs failed to rebut or respond to Bartok’s affidavit, which indicated his opinion, as
defendant’s Director of Public Services, that the roadway on which plaintiff sustained her
injuries was not unsafe or inconvenient for public travel. As such, the dispositive issue of this
appeal is the proper interpretation and application of the following rule articulated by the
Michigan Supreme Court in Wilson: “[T]o prove her case[,] plaintiff must present evidence that
a reasonable road commission, aware of this particular condition, would have understood it
posed an unreasonable threat to safe public travel and would have addressed it.” Id. at 169.
In Wilson, the Court “determine[d] under Michigan’s governmental immunity scheme
what notice of a defect in a road the governmental agency responsible for road maintenance and
7
The Supreme Court stated that “[t]he phrase ‘so that it is reasonably safe and convenient for
public travel’ refers to the duty to maintain and repair. The plain language of this phrase thus
states the desired outcome of reasonably repairing and maintaining the highway; it does not
establish a second duty to keep the highway ‘reasonably safe.’ ” Nawrocki, 463 Mich. at 160.
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repair must have before it can be liable for damage or injury incurred because of the defect.” Id.
at 162-163. The Court “conclude[d] that MCL 691.1402 and 691.1403 require that the
governmental agency be aware that the defect rises to the level that, if not repaired, it
unreasonably endangers public travel.” Id. at 163. Accordingly, “a plaintiff must allege that the
governmental agency had actual or constructive notice of a defect in the roadbed that, because of
the agency’s failure to reasonably maintain or repair, resulted in the road being not reasonably
safe and convenient for public travel.” Id. Later in its opinion, the Court stated the following,
which provides the context for the specific language on which the trial court based its ruling in
the instant case (indicated by the italics in the first paragraph):
It is this element of notice that the road was not reasonably safe for travel
that is dispositive here. In this case, neither motion under MCR 2.116(C)(10)
made any attempt to argue with supporting evidence the issue whether the road
was reasonably safe for public travel and, if it was not, whether defendant had
notice of that condition. While all parties concede that there was notice of certain
problems—that the road was bumpy and required frequent patching—these
problems do not invariably lead to the conclusion that the road was not reasonably
safe for public travel. It may be that a road can be so bumpy that it is not
reasonably safe, but to prove her case plaintiff must present evidence that a
reasonable road commission, aware of this particular condition, would have
understood it posed an unreasonable threat to safe public travel and would have
addressed it. Over 93 years ago, in Jones v Detroit, 171 Mich. 608, 137 N.W. 513
(1912), this Court made it clear that a road in bad repair, or with rough pavement,
is not per se one that is not reasonably safe. As the Court said:
Nearly all highways have more or less rough and uneven places in
them, over which it is unpleasant to ride; but because they have, it
does not follow that they are unfit and unsafe for travel. The most
that can be said for the testimony in this case is that it established
the fact that the pavement on that part of [the street] was rough,
and called for more careful driving than did other portions of it.
[Id. at 611.]
More recently, in Scheurman v Dep’t of Transportation, 434 Mich. 619, 631; 456
NW2d 66 (1990), this Court stated:
The purpose of the highway exception is not to place upon the state
or the counties an unrealistic duty to ensure that travel upon the
highways will always be safe. Looking to the language of the
statute, we discern that the true intent of the Legislature is to
impose a duty to keep the physical portion of the traveled roadbed
in reasonable repair. [Emphasis added.]
Accordingly, because neither party showed there was no question of fact
regarding the road commission’s statutorily required notice of an unsafe
condition, both motions for summary disposition should have been denied by the
trial court. [Id. at 169-170 (first emphasis added).]
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Additionally, the Court concluded the opinion with the following summary of the plaintiff’s
burden: “To conclude, to defeat governmental immunity based on MCL 691.1402, a plaintiff
must establish that the defendant knew or should have known about the defect and had notice
that the defect made the road not reasonably safe and convenient for public travel.” Id. at 170.
In reading the disputed language in context, it appears that the Supreme Court presented
the burden at issue in this case, i.e., that a “plaintiff must present evidence that a reasonable road
commission, aware of this particular condition, would have understood it posed an unreasonable
threat to safe public travel and would have addressed it,” id. at 169, in light of the notice required
to maintain a claim under the highway exception. Based on the first sentence of the paragraph
and the clause immediately preceding the language at issue, the evidence that a plaintiff must
present is evidence demonstrating that the defect was of such a nature that it would have been
apparent to a reasonable road commission that the defect rendered the roadway not reasonably
safe for public travel—meaning that it posed an unreasonable threat to safe public travel—such
that, as a result of that understanding, the commission would have addressed the defect. This
interpretation is consistent with the Wilson Court’s statement earlier in the opinion that “MCL
691.1402 and MCL 691.1403 require that the governmental agency be aware that the defect rises
to the level that, if not repaired, it unreasonably endangers public travel.” Id. at 163 (emphasis
added).
As a result, plaintiffs are correct that Wilson does not require them to proffer evidence
that literally describes or proves what a reasonable road commission would do under the facts of
the instant case, e.g., a series of affidavits prepared by road commissions or other governmental
agencies regarding what they would have done if they were aware of the defect on which
plaintiff was injured. Instead, to survive a motion for summary disposition, plaintiffs may
submit evidence from which an inference may be drawn “that a reasonable road commission,
aware of this particular condition, would have understood it posed an unreasonable threat to safe
public travel and would have addressed it.” Id. at 169. See also Jackson v Saginaw Co, 458
Mich. 141, 142; 580 NW2d 870 (1998) (“In reviewing a grant of summary disposition, an
appellate court must view the evidence in the light most favorable to the nonmoving party, and
make all legitimate inferences in favor of the nonmoving party.”) (Emphasis added).8
8
Although they are persuasive only and have no precedential effect, I note that several
unpublished opinions issued by this Court also support the conclusion that plaintiffs’ evidence
was sufficient to create a genuine issue of material fact and that Wilson does not require plaintiffs
to proffer evidence that literally describes or proves what a reasonable road commission would
do under the facts of a particular case. See MCR 7.215(C)(1). In Hampton v City of Southfield,
unpublished opinion per curiam of the Court of Appeals, issued December 18, 2012 (Docket No.
306322), pp 5-6, this Court affirmed a trial court’s denial of a defendant’s motion for summary
disposition and concluded:
With regard to whether the road was “in reasonable repair and in a condition
reasonably safe and fit for travel,” see MCL 691.1402, the photographs
themselves demonstrate a genuine issue of material fact. A hole of that size
clearly presents a danger to bicyclists, and it is a matter of common sense that it
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Plaintiffs submitted photographs that clearly depict a significant, three-inch elevation
difference between each lane of travel, created by a crack running down the middle of the
roadway at issue in this case for what appears to be at least 50 feet or more. Especially given
that “[t]his Court is liberal in finding genuine issues of material fact,” Jimkoski, 282 Mich. App. at
4-5, I would find that plaintiffs’ photographic evidence created a genuine issue of material fact
by giving rise to a reasonable inference—contrary to Bartok’s opinion in defendant’s self-serving
affidavit—that a reasonable road commission would have concluded that the road was not in
reasonable repair, and instead, would have understood that the defect posed an unreasonable
threat to safe public travel. Opdyke Inv Co v Norris Grain Co, 413 Mich. 354, 360; 320 NW2d
836 (1982) (“A genuine issue of fact is created when the affidavits, pleadings, depositions,
admissions and documentary evidence, viewed in the light most favorable to the party opposing
the motion, might permit inferences contrary to the facts as asserted by the movant.”) (Emphasis
added). The determination that such an inference is reasonable is consistent with the trial court’s
opinion that the defect, as depicted in the photographs, was “absolutely” “unreasonably” unsafe.
I fully agree with the trial court’s characterization of the defect. Further, in light of the fact that
the basis of defendant’s motion for summary disposition was that plaintiffs failed to submit “any
would also pose a potential danger to vehicle drivers attempting to avoid the hole.
[Emphasis added.]
In Martin v City of Ecorse, unpublished opinion per curiam of the Court of Appeals, issued
February 7, 2013 (Docket No. 305796), pp 3-4, this Court considered, as an issue of notice,
whether the plaintiff had met the burden under Wilson that she “must present evidence that a
reasonable road commission, aware of this particular condition, would have understood it posed
an unreasonable threat to safe public travel and would have addressed it.” This Court reversed
the trial court’s denial of the defendant’s motion for summary disposition, concluding that the
photographs submitted by the plaintiff—unlike the photographs submitted in the instant case—
“fail[ed] to establish a genuine issue of material fact regarding notice” because they were “not
taken at or near the time of her accident and [were] only presented to demonstrate the ‘locus’ of
plaintiff’s fall.” Id. at 4. Notably, this Court did not state that photographs could not fulfill the
burden articulated in Wilson. Likewise, in Utley v Board of County Road Comm of Washtenaw
Co, unpublished opinion per curiam of the Court of Appeals, issued April 24, 2012 (Docket No.
303572), pp 2-3, this Court held:
We find that, viewed in a light most favorable to plaintiff, the evidence was
sufficient to create a relevant question of fact concerning whether the pothole
amounted to a defect that a reasonable road commission would have understood
“posed an unreasonable threat to safe public travel and would have addressed it.”
[Wilson, 474 Mich. at 169.] It was uncontested that at the time of the crash, the
pothole was very large. Bishop estimated that it was six inches deep and two to
three feet wide, and other eyewitnesses agreed that the pothole was large.
Plaintiff’s expert, Edwin Novak, testified that the pothole was a “high level
severity” pothole that had not been attended to by defendant. And, as noted,
plaintiff lost control of her bike when her front tire hit the pothole and two of the
other bikers who hit the pothole had trouble controlling their bikes.
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evidence” that contradicted Bartok’s opinion that the roadway was in a state of reasonable repair,
the trial court erred in granting summary disposition to defendant because plaintiffs had
proffered evidence that, when viewed in the light most favorable to the nonmoving party,
established a genuine issue of material fact for the jury. Haliw, 464 Mich. at 302 (“Summary
disposition may be granted if the evidence demonstrates that there is no genuine issue with
respect to any material fact, and the moving party is entitled to judgment as a matter of law.”).
Looking at the photographs of the defect, which are part of the record, reasonable jurors could
certainly find that the roadway was not in a state of reasonable repair such that it was not
reasonably safe and convenient for public travel. See MCL 691.1402(1). As such, I would
reverse the trial court’s order and remand for further proceedings.
/s/ Jane M. Beckering
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