Wilda Wallace v. City of Detroit ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
WILDA WALLACE, UNPUBLISHED
February 26, 2015
Plaintiff-Appellee,
v No. 316799
Wayne Circuit Court
CITY OF DETROIT, LC No. 12-012073-NO
Defendant-Appellant.
Before: CAVANAGH, P.J., and METER and SHAPIRO, JJ.
PER CURIAM.
Defendant appeals as of right an order denying its motion for summary disposition in this
trip and fall case. We affirm.
On August 17, 2012, plaintiff notified defendant that, on August 9, 2012, at about 2:00
p.m., she “tripped and fell due to a defect in the sidewalk” in front of 6327 Perkins Street in the
City of Detroit, and suffered injuries to her ankle and knee. Plaintiff then brought this action,
alleging that defendant breached its duty to maintain the sidewalk in reasonable repair and, thus,
was liable for her injuries.
Eventually, defendant filed a motion for summary disposition, arguing that plaintiff’s
notice of injury was defective because she did not identify the exact location and nature of the
defect as required under MCL 691.1404(1). And, defendant argued, the photographs plaintiff
provided were not only untimely, but did not identify either the actual location of the alleged fall
or the defect at issue. Accordingly, plaintiff’s claim was barred by governmental immunity and
defendant was entitled to summary disposition under MCR 2.116(C)(7). In the alternative,
defendant argued, plaintiff’s claim should be dismissed because she failed to overcome the
presumption that the sidewalk was in reasonable repair, MCL 691.1402a(3). As set forth in the
attached affidavit of Timothy Dennis, Supervisor of Department of Public Works-Street
Maintenance Division, the alleged defect measured less than two inches.
Plaintiff responded to defendant’s motion, arguing that the notice of injury she provided
to defendant was sufficient. Plaintiff argued: “There is only one 6327 Perkins in the City of
Detroit and there is only one sidewalk in front of 6327 Perkins.” Further, the defect was
measured to be in excess of three inches as indicated in an affidavit signed by the man who lived
at the house, which was attached.
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After oral argument the trial court denied defendant’s motion, holding that plaintiff’s
notice was sufficient. The court also concluded that a question of fact existed as to whether the
alleged defect was more than two inches. Thereafter, an order denying defendant’s motion for
summary disposition was entered. This appeal followed.
Defendant argues that the trial court erred in denying its motion for summary disposition
under MCR 2.116(C)(7) because plaintiff failed to provide adequate notice of the defect as
required by MCL 691.1401(1). We disagree.
We review de novo a trial court’s decision on a motion for summary disposition under
MCR 2.116(C)(7). 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. “In reviewing a motion for summary disposition under MCR
2.116(C)(7), a court considers the affidavits, pleadings, and other documentary evidence
presented by the parties and accepts the plaintiff's well-pleaded allegations as true, except those
contradicted by documentary evidence.” McLean v Dearborn, 302 Mich. App. 68, 72-73; 836
NW2d 916 (2013).
Under the governmental immunity act, MCL 691.1401 et seq., governmental agencies are
immune from tort liability whenever they are “engaged in the exercise or discharge of a
governmental function,” except as otherwise provided by law. MCL 691.1407; see also Plunkett
v Dep’t of Transp, 286 Mich. App. 168, 181; 779 NW2d 263 (2009). At issue here is the highway
exception to governmental immunity, MCL 691.1402(1). To recover under the highway
exception, a plaintiff must provide the notice described in MCL 691.1404, which provides:
(1) 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.
Our Supreme Court has held that this statutory notice provision is clear and
unambiguous; thus, it must be enforced as written. Rowland v Washtenaw Co Rd Comm, 477
Mich. 197, 219; 731 NW2d 41 (2007). But notice “is sufficient if it is timely and contains the
requisite information,” and notice does not need to be provided in a particular format. Plunkett,
286 Mich. App. at 176. This Court has held that substantial compliance with the statutory notice
requirements is sufficient. Id. at 177; see also McLean, 302 Mich. App. at 75. And the
information required by the statute “does not have to be contained within the plaintiff’s initial
notice; it is sufficient if a notice received by the governmental agency within the 120-day period
contains the required elements.” Id. at 74-75.
Here, defendant argued that plaintiff’s statutory notice did not sufficiently identify the
location and nature of the alleged defect. But plaintiff’s notice stated:
Take notice that on August 9, 2012, at the hour of approximately 2:00 p.m.,
[plaintiff] whose date of birth is 8/8/63, was lawfully walking on the sidewalk in
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front of 6327 Perkins, Detroit, MI, when she tripped and fell due to a defect in the
sidewalk, causing injury to [plaintiff], she has suffered injuries to her ankle and
knee. The witnesses are not known at this time.
This notice was sufficient to advise defendant of the location and nature of the defect that
allegedly caused plaintiff’s injuries. Further, plaintiff’s complaint, which was filed within the
120-day notice period, also indicated that the “defective highway” at issue was a defective
sidewalk located in front of the house at the same address set forth in the notice. We conclude
that, at minimum, plaintiff was in substantial compliance with MCL 691.1404(1). See McLean,
302 Mich. App. at 75; Plunkett, 286 Mich. App. at 177. Accordingly, the trial court properly
rejected defendant’s motion for summary disposition premised on this argument; plaintiff was
not barred from bringing a claim under the highway exception to governmental immunity.
We also reject defendant’s argument that plaintiff’s claim was barred by the “2-inch”
limitation set forth in MCL 691.1402a(3). Just as defendant submitted an affidavit in support of
its assertion that the vertical discontinuity defect was less than two inches, plaintiff submitted an
affidavit in support of her assertion that the vertical discontinuity defect was more than two
inches. Because a question of material fact exists regarding the measurement of the vertical
discontinuity at issue, the trial court properly denied defendant’s motion for summary disposition
premised on the claim that plaintiff failed to rebut the presumption that defendant maintained the
sidewalk in reasonable repair. See MCL 691.1402a(3).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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