Arthur Whitmore v. Charlevoix County Road Commission

Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  December 21, 2011                                                                  Robert P. Young, Jr.,
                                                                                               Chief Justice

  142106                                                                             Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
  ARTHUR WHITMORE and ELAINE                                                             Brian K. Zahra,
  WHITMORE,                                                                                         Justices
          Plaintiffs-Appellees,
  v                                                       SC: 142106
                                                          COA: 289672
                                                          Charlevoix CC: 08-014922-NO
  CHARLEVOIX COUNTY ROAD
  COMMISSION,
           Defendant-Appellant.

  _________________________________________/

         On December 7, 2011, the Court heard oral argument on the application for leave
  to appeal the October 7, 2010 judgment of the Court of Appeals. On order of the Court,
  the application is again considered. MCR 7.302(H)(1). In lieu of granting leave to
  appeal we AFFIRM the judgment of the Court of Appeals in part.

         The Court of Appeals did not err in affirming the trial court’s denial of defendant’s
  motion for summary disposition, MCR 2.116(C)(7). In reviewing a motion for summary
  disposition brought under MCR 2.116(C)(7), a court must accept “[t]he contents of the
  complaint . . . as true unless contradicted by documentation submitted by the movant.”
  Maiden v Rozwood, 

 (1999), citing Patterson v Kleiman, 

, 434 n 6 (1994). While “a movant under MCR 2.116(C)(7) is not required to file
  supportive material, and the opposing party need not reply with supportive material,” a
  party “may support a motion under MCR 2.116(C)(7) by affidavits, depositions,
  admissions, or other documentary evidence,” as long as “the substance or content of the
  supporting proofs [is] admissible in evidence.” 

         MCL 691.1403 requires a governmental agency to have either actual or
  constructive knowledge of the “particular condition [that] posed an unreasonable threat to
  safe public travel . . . .” Wilson v Alpena Co Rd Comm, 

 (2006).
  Constructive notice is conclusively established when “the defect has been readily
  apparent to an ordinarily observant person for 30 days or longer before the injury.” MCL
                                                                                                                2

691.1403. Plaintiffs pled that the alleged defect causing their injuries existed for 30 days
or longer before the injuries. Accordingly, defendant is not entitled to summary
disposition on this basis.

       We clarify that plaintiffs did not properly plead actual knowledge of the particular
defect that caused their injuries because they only allege that defendant knew of general
problems with the highway that required frequent patching and that defendant scheduled
reconstruction of the highway. Wilson, 

. The Court of Appeals erred to
the extent that its rationale is inconsistent with Wilson.

        The Court of Appeals correctly determined that defendant is not entitled to
summary disposition for failure to comply with MCL 691.1404(1). MCL 691.1404(1)
requires an injured person to serve, within 120 days, notice on the governmental agency
that “specif[ies] the exact location and nature of the defect.” Defendant is not entitled to
summary disposition under MCR 2.116(C)(7) because it did not challenge below
plaintiffs’ assertion that they accompanied their § 1404(1) notice with a police report that
specified additional details required by § 1404(1).

        We REVERSE in part the judgment of the Court of Appeals regarding defendant’s
motion to strike portions of plaintiffs’ allegations relating to defendant’s alleged failure to
warn, for the reasons stated in Judge BANDSTRA’s partial dissent. Plaintiffs’ only theory
of recovery is based on defendant’s duty to maintain the highway “in reasonable repair so
that it is reasonably safe and convenient for public travel,” pursuant to MCL 691.1402.
Plaintiffs’ alleged failure to warn claims are barred under § 1402 pursuant to this Court’s
decision in Nawrocki v Macomb Co Rd Comm, 

 (2000), as Judge
BANDSTRA’s partial dissent properly recognized.

       We REMAND this case to the Charlevoix Circuit Court for further proceedings
consistent with this order.

       We do not retain jurisdiction.

       CAVANAGH, MARILYN KELLY, and HATHAWAY, JJ., would deny leave to appeal.




                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          December 21, 2011                   _________________________________________
        t1214                                                                 Clerk