ARTHUR WHITMORE V CHARLEVOIX COUNTY ROAD COMMISSION
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STATE OF MICHIGAN
COURT OF APPEALS
ARTHUR WHITMORE and ELAINE
WHITMORE,
UNPUBLISHED
October 7, 2010
Plaintiffs-Appellees,
v
No. 289672
Charlevoix Circuit Court
LC No. 08-014922-NO
CHARLEVOIX COUNTY ROAD
COMMISSION,
Defendant-Appellant.
ARTHUR WHITMORE and ELAINE
WHITMORE,
Plaintiffs-Appellants,
v
No. 291421
Charlevoix Circuit Court
LC No. 08-014922-NO
CHARLEVOIX COUNTY ROAD
COMMISSION,
Defendant-Appellee.
Before: BORRELLO, P.J., and JANSEN and BANDSTRA, JJ.
PER CURIAM.
In these consolidated appeals concerning the highway exception to governmental
immunity, defendant appeals by right the trial court’s denial of its motion for summary
disposition, and plaintiffs appeal by leave granted the trial court’s subsequent grant of partial
summary disposition for defendant. We affirm both orders of the trial court.
Plaintiffs allege that they were injured in May 2006 when their motorcycle hit a large
pothole on Charlevoix County’s Advance Road, near the intersection of Cummings Road.
Defendant sought summary disposition under MCR 2.116(C)(7), asserting governmental
immunity. The trial court denied the motion. Defendant subsequently sought partial summary
disposition, and this time the trial court granted the motion. We review de novo the trial court’s
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decisions regarding these motions. Burise v Pontiac, 282 Mich App 646, 650; 766 NW2d 311
(2009).
The government tort liability act (GTLA), MCL 691.1401 et seq., provides that
governmental agencies are liable for injuries arising from road defects only if the agency knew
or should have known of the defect:
No governmental agency[1] is liable for injuries or damages caused by
defective highways unless the governmental agency knew, or in the exercise of
reasonable diligence should have known, of the existence of the defect and had a
reasonable time to repair the defect before the injury took place. Knowledge of
the defect and time to repair the same shall be conclusively presumed when the
defect existed so as to be readily apparent to an ordinarily observant person for a
period of 30 days or longer before the injury took place. [MCL 691.1403.]
In Wilson v Alpena Co Rd Comm, 474 Mich 161, 168; 713 NW2d 717 (2006), our Supreme
Court made clear that when a plaintiff alleges an injury resulting from a governmental agency’s
failure to remedy a defect in a highway, the “injury will only be compensable when the injury is
caused by an unsafe condition, of which the agency had actual or constructive knowledge, which
condition stems from a failure to keep the highway in reasonable repair.” “It may be that a road
can be so bumpy that it is not reasonably safe,” the Wilson Court explained, “but to prove her
case [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.
Defendant argues that plaintiffs failed to satisfy MCL 691.1403 because they failed to
allege that defendant had notice of the single, specific pothole that caused the accident. When
reviewing a motion for summary disposition brought on the ground that the plaintiff has failed to
fulfill these requirements, we accept the plaintiff’s factual allegations as true and construe them
in the plaintiff’s favor, unless the defendant has provided evidence to contradict them. Plunkett v
Dep’t of Transportation, 286 Mich App 168, 180; 779 NW2d 263 (2009). Having examined the
complaint and the evidence submitted at the time of defendant’s first motion for summary
disposition, we conclude that plaintiffs properly alleged that defendant had actual and
constructive knowledge of the pothole. Plaintiffs alleged that defendant had actual and
constructive notice of the pothole, which they described as “a large, long-existing pothole of
significant depth and width dimensions present in the northbound lane of Advance Road near its
intersection with Cummings Road.” Plaintiffs alleged that defendant had “previously failed to
successfully repair” it. These allegations were sufficient to fulfill the notice of defect
requirements in MCL 691.1403.
The GTLA also includes the following provision, requiring notice to the governmental
agency in charge of maintaining the highway:
1
The term “governmental agency” includes county road commissions. MCL 691.1401(b) and
(d).
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As a condition to any recovery for injuries sustained by reason of any
defective highway, the injured person, within 120 days from the time the injury
occurred, except as otherwise provided in subsection (3) shall serve a notice on
the governmental agency of the occurrence of the injury and the defect. The
notice shall 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.
[MCL 691.1404(1).]
Legislative acts requiring serving notice of defective highway conditions serve “(1) to provide
the governmental agency with an opportunity to investigate the claim while it is still fresh and
(2) to remedy the defect before other persons are injured.” Plunkett, 286 Mich App at 176-177.
Plaintiffs’ notice consists of a cover page and two individual notices, one describing
Arthur Whitmore’s injuries and the other describing Elaine Whitmore’s injuries. Defendant does
not challenge the timeliness of the notice. However, defendant argues that the notice
insufficiently described the location and the nature of the pothole. The individual notices, which
are identical with regard to the description of the pothole, read in pertinent part:
The subject accident occurred on or about May 28, 2006, on northbound
Advance Road near its intersection with Cummings Road in the Township of
Eveline, County of Charlevoix, State of Michigan.
***
The accident occurred as a result of the defective maintenance of the
traveled portion of the roadway, and, specifically, the presence of a large pothole
within the traveled portion of the roadway which was neither marked nor
identified . . . .
At the hearing on defendant’s first summary disposition motion, plaintiffs’ counsel asserted that
plaintiffs had mailed the police report of the accident with the notice of claim. Defendant’s
counsel did not dispute this assertion. Minutes of commission meetings following the accident
indicate that defendant received the police report, which defendant intended to forward to a selfinsurance pool. In the police report, the accident is described as occurring 10 feet from the
intersection of Advance Road and Cummings Road, and a hand drawn diagram of the crash site,
which includes a depiction of the location of the pothole, is included. This location is reflected
in a letter sent from the claims administrator for the insurance pool to plaintiffs’ counsel.
Citing Barribeau v Detroit, 147 Mich 119; 110 NW 512 (1907), defendant argues that the
police report is parol evidence that cannot be considered in determining whether the notice itself
was sufficient. The plaintiff in Barribeau was injured when she fell while traversing a sidewalk.
Id. at 120. The location of the alleged defect was identified in the notice as being “at corner of
Howard and Twenty-First streets.” Id. Our Supreme Court noted, “When parol evidence is
required to determine both the place and the nature of the defect, a reasonable notice has not
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been given . . . .” Id. at 126. However, in Barribeau, no supporting evidence was timely filed
with the notice to help identify the location of the defect.2 Rather, the plaintiff in that case had
merely argued that “a description of the most general charter, when applied to the ground, may
locate the place with utmost exactness.” Id. at 124.
In contrast to Barribeau is Plunkett, wherein this Court considered a police report as a
supplemental description of an accident for purposes of evaluating the adequacy of the statutory
notice. Plunkett, 286 Mich App at 175-179. As this Court concluded, the notice, combined with
the police report, sufficiently identified the location and nature of the pothole. Id. at 179.
Indeed, as this Court stated, “when notice is required of an average citizen for the benefit of a
governmental entity, it need only be understandable and sufficient to bring the important facts to
the governmental entity’s attention.” Id. at 176. We cannot conclude that plaintiffs’ notice was
defective merely because it relied on descriptions in the accompanying police report. See id. at
179.
Next, we examine two additional matters at issue in these consolidated appeals. First,
defendant challenges the trial court’s denial of its motion to dismiss plaintiffs’ allegations
concerning “failure to warn.” And second, plaintiffs challenge the trial court’s dismissal of their
claims concerning failure to inspect the highway and the previous repair work, failure to
supervise employees assigned to repair the road, and failure to close the road.
We affirm both rulings on the basis of Nawrocki v Macomb Co Rd Comm, 463 Mich 143;
615 NW2d 702 (2000). In Nawrocki, our Supreme Court held that governmental immunity bars
any claim arising from road conditions unless the plaintiff asserts “the failure to repair or
maintain the actual physical structure of the roadbed surface, paved or unpaved, designed for
vehicular travel, which in turn proximately causes injury or damage.” Id. at 183. Any other
claim involving road conditions, such as claims based on road signage or lighting, are barred by
governmental immunity. Id. Here, plaintiffs set forth certain claims (such as those concerning
failure to inspect, closing the road, and the supervision of employees) that dealt with issues much
broader than “the actual physical structure of the roadbed surface,” itself. Accordingly, these
claims were properly dismissed. Id. With respect to plaintiffs’ allegations regarding the “failure
to warn,” plaintiffs contend that these allegations were not intended to be a separate cause of
action, but simply as an item of probative evidence that could be pursued at trial. Given
plaintiffs’ concession that they were not seeking additional damages on the basis of a separate,
self-styled “failure to warn” claim, but only seeking to introduce evidence concerning the failure
to warn that would be probative and relevant to their actual underlying cause of action, we
perceive no error in the trial court’s denial of defendant’s motion to dismiss these allegations.
We cannot say that the trial court’s ruling with regard to plaintiffs’ “failure to warn” allegations
was inconsistent with Nawrocki.
Plaintiffs also argue that the trial court erred by refusing to consider their request to
amend their complaint, and by denying their motion for reconsideration. We disagree. There is
2
When the lawsuit was begun over eight months after the accident, the plaintiff provided a more
exact description of the location of the defect. Barribeau, 147 Mich at 120-121.
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no right to amend the pleadings when the summary disposition motion is based on subrule
(C)(7). See MCR 2.116(I)(5). Moreover, it strikes us that the automatic stay provisions of MCR
2.614(D) and 7.209(E)(4) precluded amending the complaint as well. Further, the trial court
properly determined that its order contained no palpable error. Plaintiffs’ motion for
reconsideration was therefore properly denied. See MCR 2.119(F)(3).
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
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