ARTHUR WHITMORE V CHARLEVOIX COUNTY ROAD COMMISSION
Annotate this Case
Download PDF
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UNPUBLISHED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.
BANDSTRA, J. (concurring in part and dissenting in part).
I concur with the decision of the majority except with regard to the trial court’s failure to
dismiss plaintiffs’ allegations concerning “failure to warn.” The majority correctly concludes
that these allegations cannot properly present a separate cause of action under Nawrocki v
Macomb Co Rd Comm, 463 Mich 143; 615 NW2d 702 (2000). Nonetheless, the majority
reasons that the failure to warn allegations need not have been dismissed as plaintiffs only made
those allegations so that they could “seek[] to introduce evidence concerning the failure to warn
that would be probative and relevant to their actual underlying cause of action,” i.e., that
defendants had failed to fix the pothole. I disagree. First, allegations of a failure to warn need
not be in a complaint to warrant the introduction of evidence regarding a failure to warn if such
evidence is relevant and otherwise permissible as to a separate claim. Second and more
-1-
importantly, I do not see how evidence that defendant failed to post a warning regarding the
pothole is at all relevant to whether defendant acted negligently in failing to fix the pothole. At
best, the majority’s decision in this regard will lead to juror confusion. At worst, it will allow the
jurors to base liability on allegations that defendant failed to properly warn regarding the
pothole, in direct derogation of Nawrocki.
/s/ Richard A. Bandstra
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
