Kamal Nassar v. City of Dearborn ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
KAMAL NASSAR, UNPUBLISHED
April 20, 2017
Plaintiff-Appellant,
v No. 330653
Wayne Circuit Court
CITY OF DEARBORN, LC No. 14-010530-NO
Defendant-Appellee.
Before: MURPHY, P.J., and MURRAY and M. J. KELLY, JJ.
MURRAY, J., (dissenting).
I respectfully dissent from the majority opinion’s conclusion to reverse the trial court’s
order granting defendant city of Dearborn’s motion for summary disposition. For the reasons
briefly expressed below, I would affirm the trial court’s order.
As the majority opinion accurately states, the statute at issue, MCL 691.1404(1), is clear
and straightforward and provides that the notice required “shall specify the exact location and
nature of the defect . . . .” Although our Court, in Plunkett v Dep’t of Transp, 286 Mich. App.
168, 176-177; 779 NW2d 263 (2009), said that a notice complies with the statute so long as it is
in substantial compliance with the statutory requirements, our Court and, more importantly, the
Michigan Supreme Court, continue to enforce the statutory requirement that the “exact location”
of the defect be provided in a notice, see Jakupovic v City of Hamtramck, 489 Mich. 939 (2011)
and Thurman v City of Pontiac, 295 Mich. App. 381, 386; 819 NW2d 90 (2012). Here, there is no
dispute that the notice did not provide the exact location of the pothole. Although the picture
attached to the notice would, upon close inspection, likely notify the city that the defect was not
located where described, it does not necessarily follow from that same information that the
defect was further down the road past the service drive where it was actually located. Under the
standard set forth by the statute, our Court, and the Supreme Court, I would conclude that
plaintiff’s notice was not in substantial compliance with the statute and would affirm.
/s/ Christopher M. Murray
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