Ryan Menard v. Terry R Imig ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
RYAN MENARD, by his conservator, SHELLY UNPUBLISHED
MENARD, September 6, 2018
Plaintiff-Appellee,
v No. 336220
Macomb Circuit Court
TERRY R. IMIG and SHARRYL ANN LC No. 2014-003145-NI
EVERSON,
Defendants
and
MACOMB COUNTY DEPARTMENT OF
ROADS and COUNTY OF MACOMB,
Defendants-Appellants.
Before: O’BRIEN, P.J., and METER and RIORDAN, JJ.
PER CURIAM.
In this negligence action, defendants Macomb County Department of Roads (MCDR) and
Macomb County (the Macomb defendants, collectively) appeal as of right1 the order of the trial
1
Plaintiff, on appeal, challenges this Court’s jurisdiction to hear this appeal as of right. Despite
this largely meritless argument presented by plaintiff, we refuse to consider it, and instead, to any
possible extent that we lack jurisdiction to hear this appeal as of right, we exercise our power to
consider the appeal “as on leave granted ‘in the interest of judicial economy.’ ” Rains v Rains,
301 Mich. App. 313, 320 n 2; 836 NW2d 709 (2013), quoting Detroit v Michigan, 262 Mich. App.
542, 545-546; 686 NW2d 514 (2004).
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court denying their motion for summary disposition on governmental immunity grounds.2 We
now reverse and remand for entry of an order granting that motion.
I. BACKGROUND FACTS & PROCEDURAL HISTORY
At around 10:00 p.m. on June 7, 2013, then 15-year-old Ryan Menard was riding his
bicycle with friends. Ryan was at the rear of the group travelling northbound on Hipp Road in
Bruce Township between 35 and 36 Mile Roads. Due to construction in the area, the traffic on
that stretch of Hipp Road had increased greatly over the preceding few months. As a result,
residents said that Hipp Road suffered greatly from the increased traffic and was in need of
maintenance. Several people that lived or regularly drove on Hipp Road testified that the road
was filled with potholes, parts of the road washed out after rain, and as a result it had a
washboard effect. Further testimony indicated that the road had narrowed by the build-up of
sediment and plaint life on the sides of the surface of the road that normally was meant to be
used for vehicular travel. Employees of MCDR and the Director of Roads acknowledged that
removing material that created the artificial narrowing was part of regular maintenance. They
referred to the roadside build-up as “berms.”
While riding his bike on Hipp Road, Ryan would steer as far as he could to the right side
of the road when an automobile approached him from the rear. On the night at issue, several
vehicles had passed Ryan without incident. Eventually, however, Terry Imig approached
travelling northbound in a pick-up truck. At that same time, Sharryl Everson was travelling
southbound in her automobile. Everson initially could not see Ryan or his friends, but thought
she saw a flash of light, so engaged her high-beam headlights. Upon doing so, Everson saw
Ryan’s two friends, but not Ryan. While the high-beam headlights were on, Imig stated he was
blinded. He did not see Ryan until Everson returned to her normal headlights. Imig testified that
once he finally saw Ryan it was too late for him to swerve or stop before hitting him. Ryan was
dragged for some distance underneath Imig’s truck and remained trapped there while awaiting
emergency assistance. Ryan suffered from broken vertebrae, which required at least four
surgeries to his spine, and burns to his skin.
Initially, plaintiff filed suit against Imig alone, seeking third-party no-fault benefits.
However, plaintiff eventually amended the complaint to assert claims against the Macomb
defendants, asserting that their negligence fell within an exception to the government tort
liability act (GTLA), MCL 691.1401 et seq. Plaintiff cited the deteriorated and narrow nature of
Hipp Road at the site of the accident as the actionable defects under MCL 691.1402, commonly
referred to as the highway exception. After discovery, the Macomb defendants moved the trial
court for summary disposition, arguing that they were protected by governmental immunity. The
Macomb defendants contended that plaintiff failed to provide adequate notice pursuant to MCL
691.1404(1), did not plead and prove an actionable highway defect pursuant to MCL
2
The Macomb defendants also appealed the trial court’s decision to grant plaintiff’s motion for
leave to file a third amended complaint. However, because summary disposition was warranted
in favor of the Macomb defendants regardless of the amendment, we need not address that now
moot issue.
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691.1402(1), and presented no evidence that any such defect caused Ryan’s injuries. The trial
court ultimately disagreed and denied the motion for summary disposition. This appeal
followed.
II. GOVERNMENTAL IMMUNITY
The Macomb defendants argue that the trial court should have granted summary
disposition in their favor due to plaintiff’s failure to provide evidence of causation. We agree.
A. STANDARD OF REVIEW
“This Court reviews motions for summary disposition under MCR 2.116(C)(7) de novo.”
Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich. 378, 386; 738 NW2d 664 (2007).
“In reviewing a ruling pursuant to subrule (C)(7), ‘[w]e consider all documentary evidence
submitted by the parties, accepting as true the contents of the complaint unless affidavits or other
appropriate documents specifically contradict them.’ ” Seldon v Suburban Mobility Auth for
Regional Transp, 297 Mich. App. 427, 432-433; 824 NW2d 318 (2012), quoting Fane v Detroit
Library Comm, 465 Mich. 68, 74; 631 NW2d 678 (2001). “Under MCR 2.116(C)(7), summary
disposition is proper when a claim is barred by immunity granted by law.” State Farm Fire &
Cas Co v Corby Energy Servs, Inc, 271 Mich. App. 480, 482; 722 NW2d 906 (2006). The
applicability of governmental immunity and its statutory exceptions are also reviewed de novo.
Moraccini v Sterling Hts, 296 Mich. App. 387, 391; 822 NW2d 799 (2012). Summary disposition
is proper where no relevant factual dispute exists regarding whether a claim is barred pursuant to
MCR 2.116(C)(7). Id. “Questions of statutory interpretation are also reviewed de novo.”
Rowland v Washtenaw Co Road Comm, 477 Mich. 197, 202; 731 NW2d 41 (2007).3
B. APPLICABLE LAW
The GTLA provides immunity for governmental agencies where “the governmental
agency is engaged in the exercise or discharge of a governmental function,” except where
otherwise provided within the act. MCL 691.1407(1). “The term ‘governmental function’ is to
be broadly construed, and the statutory exceptions are to be narrowly construed.” Maskery v Bd
of Regents of Univ of Mich, 468 Mich. 609, 614; 664 NW2d 165 (2003). One such exception is
the highway exception codified at MCL 691.1402(1). “It states in relevant part that ‘[a] person
who sustains bodily injury or damage to his or her property by reason of failure of a
governmental agency to keep a highway under its jurisdiction in reasonable repair and in a
condition reasonably safe and fit for travel may recover the damages suffered by him or her from
3
The Macomb defendants make a lengthy and complex argument regarding the standard of
review to be employed in cases involving governmental immunity and motions for summary
disposition on that ground. We are satisfied that the appropriate standard of review was used by
the trial court, and has been reflected herein. See Kozak v City of Lincoln Park, 499 Mich. 465,
468; 885 NW2d 443 (2016) (holding summary disposition was improper on the ground of
governmental immunity where the “plaintiffs created a genuine issue of material fact giving rise
to a reasonable inference that the highway was not in reasonable repair.”).
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the governmental agency.’ ” Denney v Kent Co Rd Comm, 317 Mich. App. 727, 732; 896 NW2d
808 (2016), quoting MCL 691.1402(1). The Michigan Supreme Court has been clear that in
order to plead and prove a claim outside of the broad protection of governmental immunity with
respect to an exception, a plaintiff must prove that they suffered “an injury caused by a defect . . .
under traditional negligence principles.” Haliw v Sterling Hts, 464 Mich. 297, 309; 627 NW2d
581 (2001).4 “To establish a prima facie case of negligence, a plaintiff must be able to prove
four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3)
causation, and (4) damages.” Id. at 309-310. “Proof of causation requires both cause in fact and
legal, or proximate, cause.” Id. at 310.
C. ANALYSIS
Without having to consider whether plaintiff provided evidence of an actionable defect
on Hipp Road, we conclude that plaintiff failed to provide proof of causation necessary to
survive defendant’s motion for summary disposition.
1. CAUSE IN FACT
The cause in fact prong of causation “generally requires showing that ‘but for’ the
defendant’s actions, the plaintiff’s injury would not have occurred.” O’Neal v St John Hosp &
Medical Ctr, 487 Mich. 485, 496; 791 NW2d 853 (2010) (internal citations and quotations
omitted). “While a plaintiff need not prove that an act or omission was the sole catalyst for his
injuries, he must introduce evidence permitting the jury to conclude that the act or omission was
a cause.” Craig v Oakwood Hosp, 471 Mich. 67, 87; 684 NW2d 296 (2004). More specifically,
plaintiff’s “evidence is sufficient if it establishes a logical sequence of cause and effect.” Skinner
v Square D Co, 445 Mich. 153, 159-160; 516 NW2d 475 (1994). “There must be more than a
mere possibility that unreasonable conduct of the defendant caused the injury. We cannot permit
the jury to guess, although legitimate inferences may be drawn from established facts.”
Daigneau v Young, 349 Mich. 632, 636; 85 NW2d 88 (1957). “An explanation that is consistent
with known facts but not deducible from them is impermissible conjecture.” Wiley v Henry Ford
Cottage Hosp, 257 Mich. App. 488, 496; 668 NW2d 402 (2003). “And while the evidence need
not negate all other possible causes, this Court has consistently required that the evidence
exclude other reasonable hypotheses with a fair amount of certainty.” Craig, 471 Mich. at 87-88
(internal citations and quotations omitted).
Plaintiff first contends that the deteriorated state of the roadway was a proximate cause of
Ryan’s injuries. Plaintiff’s initial explanation as to how the potholes caused the accident was
that they affected Imig’s stopping time. In support of that, plaintiff provided abundant testimony
4
This holding by the Michigan Supreme Court belies any assertion by the Macomb defendants
that the highway exception should be provided the same limited definition of “the proximate
cause” provided for individual governmental actors in MCL 691.1407(2)(c). See Ray v Swager,
501 Mich. 52; 903 NW2d 366 (2017). Traditional negligence principles only require proof that a
defect was a proximate cause, not the proximate cause. Craig v Oakwood Hosp, 471 Mich. 67,
87; 684 NW2d 296 (2004).
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that Hipp Road in the area in question did have potholes and a washboard effect. Plaintiff even
presented expert testimony that such road deterioration can cause stop time to be increased.
However, just because such conditions exist, does not establish by their mere existence that they
proximately caused plaintiff’s injuries. During Imig’s second deposition he was asked, “Was
there anything about the condition of the road that you believe prevented your truck from coming
to a stop right away?” He responded, “No.” Imig was later asked, “Do you recall your vehicle
bouncing at any point before it came to a stop, because your tires hit a pothole, rust, washout,
anything in the roadway?’ Imig answered, “Not that I remember.” Clearly, from those answers,
Imig has established that the condition of the road did not hinder his ability to stop. Thus,
plaintiff’s theory that Imig’s stop time was increased “is consistent with known facts but not
deducible from them,” and thus it “is impermissible conjecture.” Wiley, 257 Mich. App. at 496.
In an attempt to avoid Imig’s second deposition testimony, plaintiff cites to allegedly
differing testimony during Imig’s first deposition and in his answer to an interrogatory.
However, when reading all of Imig’s testimony in its full context, it is clear that he only is stating
that the fact that it was a dirt road, versus a paved road, made the difference in stopping time. In
Imig’s answer to an interrogatory he stated, “It is possible that I may have been able to stop
faster on a paved roadway.” The fact that the road was dirt instead of paved is not a defect. He
could not tell if any defects in the road contributed to his inability to stop before hitting Ryan.
The evidence shows, at most, that whenever Imig specifically was asked if the potholes
or washboard effect caused by the deterioration of Hipp Road increased his stop time, he either
said he did not know or that they did not. When he was asked the more general question of
whether a “condition of the road” increased his stop time, he gave more positive answers. But
when he was asked to clarify, he could not determine whether it was deterioration or the mere
fact that the road was a dirt road and not paved. There simply was no testimony on the record
that Imig’s stop time was slowed by a defect in the roadway, only that it “might have” been, even
though he does not remember hitting a specific pothole or his truck bouncing before stopping.
Plaintiff providing only the “mere possibility” or speculation that the potholes increased his stop
time and caused Ryan’s injuries was not sufficient to survive a motion for summary disposition.
Teal v Prasad, 283 Mich. App. 384, 392; 772 NW2d 57 (2009).
Plaintiff next contends that the potholes and washboard effect were a cause-in-fact of
Ryan’s injuries because Ryan could have avoided the accident if he was not dodging potholes.
Indeed, Ryan did say that he was dodging potholes at the time of the accident, and that the
condition of the road was “terrible.” However, as just discussed, just because the defect existed
and Ryan encountered it does not mean that it actually was a cause-in-fact of the injuries. Ryan
also testified that when Imig’s truck was approaching, Ryan was all the way over to the right side
of the road, and that when other vehicles previously had come past him he had done the same
thing. Ryan did not testify that he was all the way to the right side of the road because he was
dodging potholes, he testified he moved in that direction to avoid automobiles that passed him on
the road. Ryan clarified later in his deposition that although he was dodging potholes on the
right side of the road, he did not change his course on the road as Imig approached.
Imig agreed, stating that he did not see Ryan suddenly change directions before the
collision occurred. In other words, there was no testimony on the record that Ryan was
positioned in front of Imig’s vehicle at the time of the accident because of potholes. Based on
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Ryan’s and Imig’s testimony, the potholes had no bearing on plaintiff’s bicycling actions before
he was struck. “It is important to bear in mind that a plaintiff cannot satisfy [the causation]
burden by showing only that the defendant may have caused his injuries. Our case law requires
more than a mere possibility or a plausible explanation.” Id. (quotation marks omitted).5 In sum,
while there was abundant evidence on the record that Hipp Road in the location in question had a
great deal of potholes and washboard effect due to alleged improper maintenance, there was no
evidence that the defect caused Ryan’s injuries, so summary disposition was required. See
Craig, 471 Mich. at 87.6
Plaintiff next argues that the narrow nature of Hipp Road was a proximate cause of
Ryan’s injuries. Plaintiff has two different theories regarding how the width of the road was a
proximate cause. First, plaintiff contends that had the road been wide enough, Imig’s truck,
Everson’s car, and Ryan’s bicycle all could have fit safely on the road together. In support of
that argument plaintiff cites to expert witness testimony concluding that the road width was a
cause. However, testimony from Imig and Ryan reveal that the width of the road was not a
5
Arguing to the contrary, plaintiff directs this Court to an answer to an interrogatory provided by
plaintiff. Therein, plaintiff stated that Ryan was attempting to get to a grassy area on the side of
the road to avoid the accident, but was blocked from doing so because he was avoiding potholes.
However, that answer was not provided by Ryan, the document was not signed by him, it was
only signed by his mother, Shelly Menard, and even if he did make the statement he was not
under oath when doing so. Indeed, during his deposition, Ryan stated that he did not remember
providing any answers to interrogatories and acknowledged that he never signed such a
document.
This Court has been clear that an unsworn, unsigned statement by a witness cannot create
a question of fact for trial. See Gorman v American Honda Motor Co, Inc, 302 Mich. App. 113,
120; 839 NW2d 223 (2013) (holding that “an unsworn, unsigned affidavit may not be considered
by the trial court on a motion for summary disposition.”); see also Sherry v East Suburban
Football League, 292 Mich. App. 23, 31-32; 807 NW2d 859 (2011) (holding that a written
statement with a signature but without notarization is still not enough to make a statement
substantively admissible); see also Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich. App.
25, 33; 772 NW2d 801 (2009) (holding that this Court will not permit a party to create a question
of fact regarding an issue based on an unsworn statement by a witness). As noted, Ryan’s sworn
testimony was that he was riding on the right side of the road expecting to be passed on his left
by Imig, which had happened each other time an automobile had approached him while he was
biking. Thus, by his own sworn testimony, Ryan had no reason to be searching for a way to get
off of the road, because he expected to be passed. Consequently, Ryan’s actions in dodging
potholes was not a cause-in-fact of the accident.
6
To the extent plaintiff asserts that the material used to make and grade Hipp Road also was a
proximate cause of Ryan’s injuries, that argument relied on the potholes allegedly resulting from
use of that material being a proximate cause of Ryan’s injuries. Because the potholes were not a
proximate cause, this argument also fails.
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cause-in-fact of Ryan’s injuries in the manner alleged. Both Ryan and Imig testified that they
travelled as far to the right of the road as they could immediately preceding the accident.
Ryan stated he did so when a vehicle was approaching from behind him, while Imig
stated he did so while vehicles approached him coming from the opposite direction. Thus, rather
the road was 15-feet wide or 20-feet wide, at the time in question Ryan and Imig both would
have been to the far right of the road. Imig provided further testimony that he could not see
Ryan until Everson turned off her high-beam headlights. Imig explicitly stated that by the time
he saw Ryan he did not have time to veer in either direction, even if there was room to do so.
Consequently, even if the road was maintained at the 20-feet it allegedly was supposed to be,
leaving room for all three to be on the road at once, the accident still would have happened. Imig
would have moved over to the right to avoid Everson, Ryan would have moved over to the right
to avoid Imig, Everson’s lights would have blinded Imig, and when she turned them off and Imig
finally saw Ryan, it would have been too late to veer in either direction. Therefore, plaintiff has
failed to show “that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have
occurred.” O’Neal, 487 Mich. at 496. All of the testimony from Imig and Ryan reveals that the
accident would have occurred even if Imig’s truck, Everson’s car, and Ryan’s bicycle could have
safely fit on the road. Id.
Plaintiff also asserts that the narrow nature of the road was a proximate cause of Ryan’s
injuries because it required Everson and Imig to drive closer together, which decreased the angle
at which Everson’s high-beam headlights hit Imig’s eyes, which increased the glare and Imig’s
blindness, which made Imig unable to see Ryan until it was too late to stop or swerve. As has
become clear while discussing the other alleged theories of causation, the direct cause is that
Imig could not see Ryan in time to stop or veer before hitting him. To wit, Imig testified that if
Everson had not been approaching with her high-beams on, he would have been able to see Ryan
riding his bike and have time to stop before hitting him. In support of that argument, plaintiff
provided expert witness testimony that given the narrow nature of the road, Everson’s high-beam
headlights induced increased glare and blindness in Imig. Thus, it stands to reason that had the
road been maintained at its normal width, the glare and blindness would have been reduced, and
Imig would have seen Ryan in time to stop and avoid hitting him. Therefore, unlike plaintiff’s
other theories, the evidence supporting the increased glare and blindness theory “is sufficient
[because] it establishes a logical sequence of cause and effect.” Skinner, 445 Mich. at 159-160.
Plaintiff has created a question of fact regarding whether the width of the road was a cause-in-
fact of Ryan’s injuries, because it stands to reason that “ ‘but for’ the defendant’s actions, the
plaintiff’s injury would not have occurred.” O’Neal, 487 Mich. at 496. However, this Court’s
analysis on the issue of proximate causation does not end when something could be considered a
cause-in-fact.
2. LEGAL CAUSATION
“Proof of causation requires both cause in fact and legal, or proximate, cause.” Haliw,
464 Mich. at 310. The Michigan Supreme Court, in Ray v Swager, 501 Mich. 52, 63-64; 903
NW2d 366 (2017) (citations omitted), recently summarized proximate causation and the
difference between cause-in-fact and legal causation:
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Proximate cause, also known as legal causation, is a legal term of art with
a long pedigree in our caselaw. Proximate cause is an essential element of a
negligence claim. It “involves examining the foreseeability of consequences, and
whether a defendant should be held legally responsible for such consequences.”
Proximate cause is distinct from cause in fact, also known as factual causation,
which “requires showing that ‘but for’ the defendant’s actions, the plaintiff’s
injury would not have occurred.” Courts must not conflate these two concepts.
We recognize that our own decisions have not always been perfectly clear on this
topic given that we have used “proximate cause” both as a broader term referring
to factual causation and legal causation together and as a narrower term referring
only to legal causation. All this broader characterization recognizes, however, is
that “a court must find that the defendant’s negligence was a cause in fact of the
plaintiff’s injuries before it can hold that the defendant’s negligence was the
proximate or legal cause of those injuries.” In a negligence action, a plaintiff
must establish both factual causation, i.e., “the defendant’s conduct in fact caused
harm to the plaintiff,” and legal causation, i.e., the harm caused to the plaintiff
“was the general kind of harm the defendant negligently risked.” If factual
causation cannot be established, then proximate cause, that is, legal causation, is
no longer a relevant issue.
In other words, proximate cause “involves a determination that the connection between the
wrongful conduct and the injury is of such a nature that it is socially and economically desirable
to hold the wrongdoer liable, and depends in part on foreseeability.” Wiley, 257 Mich. App. at
496-497. More simply, “[p]roximate cause draws the line of liability at the probable and natural
results of a defendant’s negligent act.” Adas v Ames Color-File, 160 Mich. App. 297, 303; 407
NW2d 640 (1987). Proximate cause is “a foreseeable, natural, and probable cause.” Shinholster
v Annapolis Hosp, 471 Mich. 540, 546; 685 NW2d 275 (2004).
From the record, clearly Ryan’s injuries were not “a foreseeable, natural, and probable”
result of the Macomb defendants’ failure to properly maintain the width of Hipp Road. See id.
It was not foreseeable that the Macomb defendants’ failure to remove berms from the side of the
road would result in a bicyclist being struck from behind by a driver of a truck blinded by
oncoming headlights. Not only was the situation not a foreseeable outcome of the Macomb
defendants’ negligence, but given the broad immunity provided by the GTLA, it would be not be
“socially and economically desirable to hold the” Macomb defendants liable under the
circumstances shown in the record. Wiley, 257 Mich. App. at 496-497.
This conclusion is supported by Singerman v Muni Serv Bureau, Inc, 455 Mich. 135, 136-
137; 565 NW2d 383 (1997). There, “[w]hile on the ice hockey rink at the Westland Sports
Arena, plaintiff Gary Singerman was hit in the eye by a hockey puck and sustained severe
damage.” At the time, Singerman was not wearing a helmet and the premises owner had a rule
requiring anyone on the ice to wear helmets. Id. at 137-138. As a theory of liability, Singerman
alleged that if the premises owner had enforced the rule precluding play without a helmet, he
would not have been on the ice, and thus would not have been struck by the puck. Id. at 144.
The Court acknowledged that, technically, the failure to enforce the no-helmet rule was a cause-
in-fact of Singerman’s injuries, but still determined that summary disposition was warranted. Id.
at 144-145. The Court provided the following reasoning:
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An event may be one without which a particular injury would not have
occurred, but if it merely provided the condition or occasion affording opportunity
for the other event to produce the injury, it is not the proximate cause thereof.
Negligence which merely makes possible the infliction of injuries by another, but
does not put in motion the agency by which the injuries are inflicted, is not the
proximate cause thereof. Causes of injury which are mere incidents of the
operating cause, while in a sense factors, are so insignificant that the law cannot
fasten responsibility upon one who may have set them in motion. [Id. at 145,
quoting 57A Am Jur 2d, Negligence, § 473, pp 454-455.]
Consequently, the Court affirmed the trial court’s grant of summary disposition. Singerman, 455
Mich. at 145.
The same reasoning can be applied here. The narrow nature of the road “merely provided
the condition or occasion affording opportunity for the other event to produce the injury . . . .”
Id. (quotation marks omitted). In other words, viewing the facts in the light most favorable to
plaintiff, plaintiff has proved only that the limited width of Hipp Road created the condition that
would allow Everson’s high-beam headlights to so blind Imig, who did not press his brakes
despite that blindness. See id. As such, the narrow nature of Hipp Road “merely ma[de]
possible the infliction of injuries by another, but d[id] not put in motion the agency by which the
injuries [were] inflicted . . . .” Id. (quotation marks omitted). The width of the road would not
have been an issue if Everson had decided not to use her high-beam headlights or Imig decided
to stop his truck when he could not see. Consequently, Hipp Road only was a conduit for the
allegedly negligent actions of others. It did not put the agency in motion. Id. Therefore,
according to the reasoning in Singerman, the Macomb defendants’ alleged failure to maintain the
width of Hipp Road was not the legal cause of Ryan’s injuries. See id. The injuries suffered by
Ryan were so far attenuated from the alleged negligence of the Macomb defendants that it would
not be “socially and economically desirable to hold” them liable. Wiley, 257 Mich. App. at 496-
497.
III. CONCLUSION
Because all of the alleged defects in the road were not a proximate cause of Ryan’s
injuries, summary disposition should have been granted in favor of the Macomb defendants.
Considering that plaintiff’s claims against the Macomb defendants must be dismissed, the
remaining issues in this case have been rendered moot and we need not consider them.7
7
We note, however, that despite the Macomb defendants’ argument that plaintiff’s statutory
notice was insufficient for failing to specifically identify the location and nature of the defect and
leaving off witnesses who did not see the accident, the notice provided by plaintiff satisfied the
requirements of MCL 691.1404(3) because it was “understandable and sufficient to bring the
important facts to the governmental entity’s attention.” Plunkett v Dep’t of Transp, 286 Mich
App 168, 176; 779 NW2d 263 (2009). See also Milot v Dep’t of Transportation, 318 Mich App
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Reversed and remanded to enter an order granting summary disposition in favor of the
Macomb defendants. We do not retain jurisdiction.
/s/ Colleen A. O'Brien
/s/ Michael J. Riordan
272, 277; 897 NW2d 248 (2016) (defining witness as it is used in MCL 691.1404(3) as a person
“who witnessed the ‘occurrence of the injury and defect.’ ”).
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