Birgetta Walker v. City of Romulus

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
BIRGETTA WALKER, UNPUBLISHED
February 11, 2020
Plaintiff-Appellee,
v No. 345400
Wayne Circuit Court
CITY OF ROMULUS, LC No. 17-011360-NO
Defendant-Appellant.
Before: MURRAY, C.J., and SWARTZLE and CAMERON, JJ.
PER CURIAM.
Defendant, the City of Romulus, appeals of right the trial-court order denying its motion
for summary disposition, filed under MCR 2.116(C)(7) (claim barred by immunity granted by
law), (8) (failure to state a claim upon which relief can be granted), and (10) (no genuine issue of
material fact and moving party entitled to judgment as a matter of law). We reverse and remand
with instructions for the trial court to enter an order granting summary disposition to the city.
I. BACKGROUND
On September 13, 2015, plaintiff, Birgetta Walker, was attending her church located in the
City of Romulus. After services, she left and walked across the road to reach her parked car. In
the middle of the road, plaintiff stepped in or on something on the surface of the road and fell,
sustaining physical injuries. On January 5, 2016, plaintiff sent the city a letter providing notice of
her injury. In that notice, plaintiff stated that her “heel got caught in [a] large, rotted and
deteriorated section of concrete roadway, causing claimant to fall and sustain injury.” The notice
letter did not claim that plaintiff fell in a crosswalk.
On July 27, 2017, plaintiff filed this personal-injury lawsuit against the city. Plaintiff
pleaded her complaint as if she were pursuing a typical premises-liability claim against the owner
of real property, alleging that she was a “business invitee” and that she sustained injuries “on
property under the dominion, control and ownership” of the city. Plaintiff alleged that the city
owed her a duty to maintain its premises as a reasonably prudent person would do under the same
or similar circumstances, and that the city violated this duty in several ways, including but not
limited to a failure to construct the premises in a manner suitable and safe under the circumstances,
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and a failure to properly illuminate the premises so that any dangerous or hazardous conditions
would be apparent to plaintiff.
As it pertains to the highway exception to governmental immunity, plaintiff alleged that “a
hazardous and dangerous condition” existed on “Horace Jackson Street, near Martin Pl., in the
vicinity near Romulus Community Baptist Church, which said church is located at 6200 4th Street,
Romulus, MI.” Plaintiff alleged that this condition “constituted a tripping hazard, as a result of
the existence of a loose, rotted and deteriorated section of concrete roadway.” Plaintiff further
alleged that this “tripping hazard” qualified as a “hazard to travel” and a “defective condition” that
fell within an exception to governmental immunity. Finally, plaintiff alleged that the condition of
the roadway caused her “to trip and lose her balance due to the tripping hazard,” causing her to
sustain severe physical injuries. With regard to the amount of time the allegedly defective
condition had existed before she tripped and fell on it, plaintiff alleged that, “as will be shown
through the course of discovery, it is evident that the defective condition was present for more than
thirty days at the time the Plaintiff was caused to be injured.” Plaintiff did not allege in her
complaint that she fell in a crosswalk.
On March 5, 2018, plaintiff testified at her deposition regarding the circumstances
surrounding her fall and the alleged defect on which she fell. Plaintiff stated that she left church
at about 2:00 p.m., and that it was a clear day. Plaintiff was walking in the “middle of the street,”
looking toward her parked car, and she “just went down” on a “little pothole” or “some type of
hole or something in the street.” When asked whether she tripped and fell in the street, plaintiff
answered: “I don’t know if you call it north or south, but I was crossing the street after I came out
of the parking lot going towards my car. I was on the opposite side of the church. . . . [T]he lady
that was parked on the street where I fell in the middle of the street, they hopped up and they
picked me up.” The city’s counsel attempted to clarify whether plaintiff was walking in a
crosswalk when she fell in the “middle of the street”:
Q. When you were crossing the street, were you walking in a crosswalk?
I’m trying to get an area, a better idea where you fell. Were you walking in a
crosswalk when you fell?
A. In a crossway. I was like in the middle of the street.
Q. Okay.
A. I had come out of the parking lot, the driveway, I come out of the parking
lot driveway to go across the street. I was walking in the street to the left-hand side.
Q. I’m sorry. So is it your testimony you were walking in the middle of
the street at the time of this incident?
A. Yes. I had crossed walking in the middle going towards my car. Wasn’t
too far from my car.
When the city’s counsel asked plaintiff to describe location of her fall and the alleged defect
in the street on which she fell, the following exchange occurred:
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Q. And as you’re walking towards your car that’s parked in the street,
you’re walking in the middle of the street, correct?
A. Yes. Over to the left, not directly in the middle of the street. I was in
the street, because I was parked on the side, where you open up the door and you
in the street.
Q. So you’re walking in the area of the street where cars have to travel to
drive in the street, yes?
A. Yes.
Q. And as you’re walking in the street, your left foot gets caught in
something?
A. Yes, and I just went down.
Q. And what did your left foot get caught in that caused you to go down?
A. I have no idea.
Q. Okay.
A. I just went down.
Plaintiff stated that, after she fell, bystanders helped her to her parked car, and she looked
back at the location of her fall. Plaintiff further stated that, one week after her trip and fall, she
returned to the place where she normally parked her car near the church and took a photograph of
the location where she fell. The photograph was referenced at her deposition, and contained a
circle with a handwritten notation “this one,” to designate the alleged defect on which she fell.
Plaintiff expressly denied that she saw any loose stones in the area of the road where she fell.
After the close of discovery, the city moved for summary disposition under MCR
2.116(C)(7), (8), and (10), raising three arguments. First, the city argued that plaintiff had failed
to plead in avoidance of governmental immunity because her complaint was “entirely devoid of
factual allegations” that the alleged defect in the roadway was outside the scope of the city’s
governmental immunity. Second, the city argued that plaintiff had failed to present any evidence
that the alleged defect made the highway not in reasonable repair such that it was not reasonably
safe and convenient for public travel. With regard to plaintiff’s photograph of the alleged defect
referenced at her deposition, the city argued that it was “of horrible quality” and that it “fails to
establish any defect at all.” The city argued, “What it does appear to show, however, is nothing
more than a slight indentation in the concrete of the street, of narrow width and length, that could
be readily and easily avoided and even walked upon if someone were paying attention.” Finally,
the city argued that plaintiff had failed to produce any evidence that the city knew or should have
known of the alleged defect before plaintiff’s trip and fall, let alone 30 days before her fall.
Plaintiff opposed the motion, arguing that a genuine issue of material fact existed regarding
whether the cloak of governmental immunity applied to the city. Plaintiff responded to each of
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the city’s three arguments. First, plaintiff argued that she had pleaded a case in avoidance of
governmental immunity, citing the statutory authority for the grant of governmental immunity,
MCL 691.1407, and the highway exception to that immunity, MCL 691.1403, but referencing none
of the actual allegations contained in her complaint. Second, plaintiff argued that she had
presented evidence that the alleged defect made the highway not in reasonable repair such that it
was not reasonably safe and convenient for public travel, citing the notice letter that she provided
to the city, her deposition testimony, and the photographic evidence that she attached to her trial-
court brief.
Third, plaintiff argued that she had established a genuine issue of material fact, through the
photographic evidence that she submitted, that the alleged defect existed in the roadway for a “long
enough period of time where Defendant should have known” about it. Plaintiff devoted a single
paragraph of her trial-court brief to this argument. Plaintiff referenced multiple alleged defects on
the road in question and argued that “looking at the nature of the defects, it is clear from the
photographs that there is faded asphalt patches in some of these defects,” including the one on
which plaintiff fell. Plaintiff argued that the existence of these “faded asphalt patches” proved that
the city “at one point tried to remedy the defect” that caused her fall. She further argued that the
“faded color of the asphalt pack,” as well as “loose stones evident in the pictures around the area
of the fall clearly indicate that the defect continued and the repair failed” over a lengthy period of
time. Plaintiff argued that the photographic evidence therefore gave rise to a reasonable inference
that the city should have known about the alleged defect before plaintiff fell.
In her brief opposing the motion for summary disposition, plaintiff argued that she “fell in
the improved portion of the highway intended not only for vehicular but pedestrian traffic” and
asserted that the alleged defect was a “deteriorated portion of the highway.” Plaintiff argued that
she “testified at her deposition that she was in a crosswalk in the middle of the street when she
fell,” citing the deposition testimony set forth above. Yet, plaintiff did not argue that the location
of the fall in an alleged crosswalk—as opposed to some other portion of the street—defeated the
city’s claim to governmental immunity.
Plaintiff attached several exhibits to her trial-court brief opposing defendant’s motion for
summary disposition. First, plaintiff attached the poor-quality photograph of the alleged defect
that was taken one week after her trip and fall, on which a circle had been marked around the
alleged defect, along with the handwritten notation “this one.” In addition, plaintiff attached
several more photographs that apparently depicted areas of the street in question, other than the
alleged defect on which plaintiff fell. None of the photographs that plaintiff attached to her brief
appear to depict a crosswalk. Finally, plaintiff attached to her trial-court brief a copy of her
deposition transcript, her complaint, and the notice letter that she sent to the city.
On July 27, 2018, the trial court held a hearing on the city’s motion for summary
disposition. At that hearing, plaintiff’s entire argument regarding the nature of the alleged defect
was to state that “I think what constitutes reasonable repair is an issue for the jury.” Meanwhile,
regarding the issue of notice, plaintiff relied solely on the photographs that she had attached to her
trial-court brief. Plaintiff argued that the photographs were sufficient to illustrate that
the location where she fell clearly was a pothole that [the city] tried to repair at
some point in the past, ‘cause you can see the asphalt in there, you can see the
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asphalt’s faded. You can see loose stones around it and from that you can draw an
inference that this condition was in existence for more than 30 days because there
is a definite dip in the elevation of that area.
Plaintiff also argued that, because the city had attempted to repair the street at some point in the
past, the city was on notice of the alleged defect that arose later, because the city “didn’t repair it
adequately or it was so long ago when the last time they repaired it that the asphalt then was faded
and drawn out of that hole.” During oral argument on the motion, plaintiff made no mention of a
crosswalk.
At the close of the parties’ arguments, the trial court stated its conclusions that plaintiff had
properly pleaded her complaint in avoidance of governmental immunity, the alleged defect
qualified as an exception to governmental immunity, and a question of fact existed regarding
whether the city should have known of the alleged defect. The trial court’s analysis of the city’s
factual and legal issues was as follows:
Okay. I did read the motions, the responses. The Court finds that Plaintiff
did properly plead in avoidance of governmental immunity. The defect alleged is
an exception to immunity and there is a question of fact the Defendant knew or
should’ve known of the defect.
It looks as though there was a possible repair in the photos, so for those
reasons I’m denying your motion, counsel.
The trial court did not indicate whether it decided the motion under MCR 2.116(C)(7), (8), or (10),
and the trial court made no reference to a crosswalk. The trial court subsequently entered an order
denying the city’s motion for summary disposition.
This appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition,
as well as the “applicability of governmental immunity and the statutory exceptions to immunity.”
Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012). Summary disposition
under MCR 2.116(C)(7) is proper “when a claim is barred by immunity granted by law” to a
defendant, and to “survive such a motion, the plaintiff must allege facts justifying the application
of an exception to governmental immunity.” Fane v Detroit Library Comm, 465 Mich 68, 74; 631
NW2d 678 (2001). “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).
“If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of
those facts, the question whether the claim is barred is an issue of law for the court.” Dextrom v
Wexford Co, 287 Mich App 406, 429; 789 NW2d 211 (2010).
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B. GOVERNMENTAL IMMUNITY
Under MCL 691.1401 et seq., governmental agencies, including cities like defendant,
enjoy “broad immunity from tort liability . . . whenever they are engaged in the exercise or
discharge of a governmental function.” Plunkett v Dep’t of Transp, 286 Mich App 168, 181; 779
NW2d 263 (2009) (cleaned up); see also MCL 691.1401(a), (d), (e); 691.1407(1). The Legislature
enacted several exceptions to the grant of governmental immunity, and those exceptions are the
only means by which an individual may bring a tort claim against a governmental agency. Lash v
Traverse City, 479 Mich 180, 195; 735 NW2d 628 (2007). At issue in this case is the so-called
highway exception, which provides, in relevant part:
(1) Each governmental agency having jurisdiction over a highway shall
maintain the highway in reasonable repair so that it is reasonably safe and
convenient for public travel. 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 the governmental
agency. . . . Except as provided in section 2a, the duty of a governmental agency to
repair and maintain highways, and the liability for that duty, extends only to the
improved portion of the highway designed for vehicular travel and does not include
sidewalks, trailways, crosswalks, or any other installation outside of the improved
portion of the highway designed for vehicular travel. [MCL 691.1402(1).]
“[T]he immunity conferred upon governmental agencies is broad, and the statutory exceptions
thereto are to be narrowly construed.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158;
615 NW2d 702 (2000). Accordingly, “[a]n action may not be maintained under the highway
exception unless it is clearly within the scope and meaning of the statute.” Hatch v Grand Haven
Twp, 461 Mich 457, 464; 606 NW2d 633 (2000).
In this case, plaintiff was a pedestrian when she tripped and fell. Pedestrians “are not
automatically and entirely excluded, as a class, from the protections” of the highway exception to
governmental immunity. Nawrocki, 463 Mich at 170. Rather, the statutory language of the
highway exception imposes a duty on governmental agencies “to protect pedestrians from
dangerous or defective conditions in the improved portion of the highway designed for vehicular
travel, even when injury does not arise as a result of a vehicular accident.” Id. at 162 (interpreting
a prior version of the statute that includes nearly identical language, except now that language
applies to all governmental agencies, not just state and county road commissions). Thus, a
pedestrian may recover damages for a personal injury when the injury is proximately caused by a
failure of a governmental agency to repair and maintain the improved portion of the highway
designed for vehicular travel. Id. at 162-163.
The parties do not dispute that the location in which plaintiff sustained her injuries was an
“improved portion of the highway designed for vehicular travel.” MCL 691.1402(1). Thus, under
the first sentence of MCL 691.1402(1), defendant had a duty to maintain the highway “in
reasonable repair so that it is reasonably safe and convenient for public travel.” MCL 691.1402(1).
This phrase “simply refers to the duty to maintain and repair the highway, and states the desired
outcome of reasonably repairing and maintaining the highway; it does not establish a second duty
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to keep the highway ‘reasonably safe.’ ” Wilson v Alpena Co Rd Comm, 474 Mich 161, 167; 713
NW2d 717 (2006), citing Nawrocki, 463 Mich at 160. “[T]he Legislature has not waived immunity
if the repair is reasonable but the road is nonetheless still not reasonably safe because of some
other reason.” Id. Likewise, “it can also be seen that the converse of this statement is true: that is,
the Legislature has not waived immunity where the maintenance is allegedly unreasonable but the
road is still reasonably safe for public travel.” Id. at 168.
“[A]n imperfection in the roadway will only rise to the level of a compensable ‘defect’
when that imperfection is one which renders the highway not ‘reasonably safe and convenient for
public travel,’ and the government agency is on notice of that fact.” Id. Accordingly, “an injury
will only be compensable when the injury is caused by an unsafe condition, of which the [city]
had actual or constructive knowledge, which condition stems from a failure to keep the highway
in reasonable repair.” Id. The fact that a road is “bumpy and required frequent patching” does not
“invariably lead to the conclusion that the road was not reasonably safe for public travel.” Id. at
169. Stated another way, a “road in bad repair, or with rough pavement, is not per se one that is
not reasonably safe.” Id., citing Jones v Detroit, 171 Mich 608; 137 NW 513 (1912). “ ’Nearly
all highways have more or less rough and uneven places in them, over which it is unpleasant to
ride; but because they have, it does not follow that they are unfit and unsafe for travel.’ ” Id. at
169-170, quoting Jones, 171 Mich at 611. Although “[i]t may be that a road can be so bumpy that
it is not reasonably safe,” to prove her case plaintiff must present evidence that a reasonable city,
which knew or should have known of this particular condition, would have understood that it
“posed an unreasonable threat to safe public travel and would have addressed it.” Id. at 169.
C. CROSSWALKS
On appeal, plaintiff stresses her claim that she fell in a crosswalk. Although plaintiff made
a single, fleeting reference at her deposition that she was in a “crossway” when she tripped and
fell, it is by no means clear that she fell in a “crosswalk” as that term is understood for purposes
of the highway exception to governmental immunity. Furthermore, plaintiff did not raise this
argument in response to the city’s motion for summary disposition, and the trial court did not rule
on this issue. Because this argument was not raised before, addressed, and decided by the trial
court, it is not preserved for appellate review. People v Dupree, 486 Mich 693, 703; 788 NW2d
399 (2010).
In any event, as explained above, each governmental agency having jurisdiction over a
highway has a duty to “maintain the highway in reasonable repair so that it is reasonably safe and
convenient for public travel.” MCL 691.1402(1). For purposes of this statute, the term “highway”
means “a public highway, road, or street that is open for public travel. Highway includes a bridge,
sidewalk, trailway, crosswalk, or culvert on the highway.” MCL 691.1401(c) (emphasis added).
Although a crosswalk falls within the definition of the term “highway,” the statute contains
additional language regarding a governmental agency’s duty, and liability for breach of that duty,
regarding crosswalks. “Except as provided in section 2a, the duty of a governmental agency to
repair and maintain highways, and the liability for that duty, extends only to the improved portion
of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks,
or any other installation outside of the improved portion of the highway designed for vehicular
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travel.” MCL 691.1402(1) (emphasis added).1 This Court has examined this statutory language
and has held that when a crosswalk is located inside the improved portion of the highway designed
for vehicular travel, the governmental agency having jurisdiction over that location has a duty to
maintain the highway, including the crosswalk, in reasonable repair so that it was reasonably safe
and convenient for public travel. See Sebring v Berkley, 247 Mich App 666, 680-681; 637 NW2d
552 (2001).
As explained below, plaintiff testified that the alleged defect on which she fell was in the
surface of the roadway. Whether plaintiff was injured in a crosswalk or not is therefore irrelevant
to her claim. The city’s duty is the same, regardless of whether plaintiff fell inside or outside a
crosswalk. “Because this particular crosswalk is not an installation separate from the roadbed, the
highway exception applies.” Id. at 681. The city was required to maintain the surface of the
highway in reasonable repair so that it was reasonably safe and convenient for public travel. MCL
691.1402(1).
D. THE ALLEGED DEFECT
On appeal, the city argues that it was entitled to summary disposition because plaintiff
failed to establish that the roadway on which she fell contained a defect that rendered the roadway
not reasonably safe and convenient for public travel. Citing our Supreme Court’s holding in
Wilson, the city argues that a road in “bad repair” or with “uneven” or “rough” patches is not
necessarily a road that is not reasonably safe for public travel, and that a plaintiff wishing to avoid
the application of governmental immunity must present evidence about the characteristics of the
imperfections complained of, and must show that, because of those characteristics, the imperfect
road can no longer be said to be reasonably safe.
The city argues that plaintiff hardly presented evidence of any defect in the road at all, let
alone a defect that made the road not reasonably safe and convenient for public travel. The city
notes that the photograph that plaintiff presented to the trial court “appears to depict a small, rough
patch of concrete,” but the photograph “does not demonstrate a significant difference in elevation
between the rough patch and the surrounding concrete, nor does it appear to depict loose pieces of
stone, gravel, or concrete in the area.” The city also notes that plaintiff did not submit any evidence
or testimony indicating the size of the alleged defect, and that plaintiff’s photograph appears to
depict an area “only several inches in width and approximately one foot in length.”
The city also argues that plaintiff did not present any evidence supporting her allegations
that the alleged defect contained a “loose, rotted, and deteriorated section of concrete roadway,”
as alleged in her complaint. The city contends that the other materials that plaintiff submitted in
opposition to the city’s motion for summary disposition—her complaint and her presuit notice
letter—contain only allegations, which turned out to be unsupported by the evidence that plaintiff
ultimately submitted to the trial court.
1
Section 2a of the statute addresses liability for sidewalks adjacent to a highway, and is not
applicable here. MCL 691.1402a.
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Viewing plaintiff’s proffered photograph and deposition testimony in the light most
favorable to her, plaintiff failed to establish a genuine issue of material fact regarding whether the
road on which she fell contained a defect that rendered it not reasonably safe and convenient for
public travel. Plaintiff expressly denied in her deposition that she saw any loose stones in the area
of the road where she fell. Her photographic evidence provided the only evidence regarding the
alleged defect on which her claim is based. This photograph was of low quality and did little to
depict the physical attributes of the alleged defect. In short, a finder of fact would have to speculate
regarding the alleged defect’s size, texture, and elevation on the day of the incident. Given the
inadequacy of plaintiff’s proofs, plaintiff failed to demonstrate a genuine issue of material fact that
a defect existed in the roadway that rendered the roadway not reasonably safe and convenient for
public travel. See Wilson, 474 Mich at 168. Accordingly, the trial court erroneously denied the
city’s motion for summary disposition under MCR 2.116(C)(7).
E. NOTICE OF THE ALLEGED DEFECT
The city next argues that it was entitled to summary disposition because plaintiff failed to
establish that the city had sufficient notice of the alleged defect on which she tripped and fell, as
required by MCL 691.1403. Even if the record evidence had raised a genuine issue of material
fact regarding the existence of an actionable defect in the surface of the roadway, plaintiff’s claim
would nonetheless fail because she did not raise a genuine issue of material fact regarding whether
the city had actual or constructive notice of the alleged defect and had a reasonable time to repair
the defect before the injury took place.
As noted earlier, an injury is only compensable under the highway exception to
governmental immunity when the responsible governmental agency is on notice of a defect that
renders the highway not reasonably safe and convenient for public travel. Wilson, 474 Mich at
168.
No governmental agency 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.]
“Generally, the question whether a street defect, otherwise actionable against the municipality,
‘has existed a sufficient length of time and under such circumstances that the municipality is
deemed to have notice is a question of fact, and not a question of law.’ ” Cruz v Saginaw, 370
Mich 476, 481; 122 NW2d 670 (1963), quoting Hendershott v Grand Rapids, 142 Mich 140, 143;
105 NW 140 (1905).
In Bernardoni v Saginaw, 499 Mich 470, 471; 886 NW2d 109 (2016), the Michigan
Supreme Court held that a photograph of a defect taken after an accident is not probative of the
location’s past condition and is “insufficient, without more, to forestall summary disposition”
under the highway exception to governmental immunity. Here, the city cites Bernardoni to
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support its argument that plaintiff has failed to show that the city was on actual or constructive
notice of the alleged defect before her trip and fall.
In Bernardoni, the plaintiff was walking on a sidewalk and tripped on a 2.5-inch vertical
discontinuity between adjacent sidewalk slabs. She sued the city, alleging that the sidewalk’s
hazardous condition had existed for more than 30 days before her fall. At her deposition, the
plaintiff was unable to state how long the discontinuity had existed. The only relevant evidence
that she submitted was three photographs of the defect taken about 30 days after the accident. Id.The trial court found plaintiff’s photographs insufficient to establish the defect’s origin and
duration and granted summary disposition to the city. Id. at 471-472. On appeal, this Court held
that summary disposition was improperly granted, noting the “high unlikeliness that sidewalk slabs
could shift, wear, and accumulate debris with great rapidity” and concluding that “reasonable
minds could differ as to whether the condition would have been present and readily apparent for
at least 30 days before the injury.” Id. at 472 (cleaned up). The Supreme Court reversed this
Court’s decision and reinstated the trial court’s grant of summary disposition, holding that the
plaintiff’s photographs, alone, were not probative of the sidewalk’s past condition and were
“insufficient, without more, to forestall summary disposition.” Id. at 471.
In this case, plaintiff testified that the alleged defect existed in the road in front of her
church, a location that she frequently traverses. Plaintiff, therefore, could have sought affidavits
from other churchgoers or church staff attesting to their observations regarding the length of time
the alleged defect existed before her fall. Or, plaintiff could have obtained records from the city
listing any complaints received regarding the location of plaintiff’s fall and any efforts the city
made to repair the street. Or, plaintiff could have offered expert testimony explaining that such a
defect could have arisen only over an extended period of time. Id. at 476. Plaintiff chose not to
do so; rather, plaintiff offered only poor-quality photographs taken after her trip and fall. The
proffered evidence does not create a genuine issue of material fact regarding the issue of notice.
“Without more, a jury has no basis for concluding that the defect was present for the requisite
period of time.” Id. Accordingly, the trial court erroneously denied the city’s motion for summary
disposition under MCR 2.116(C)(7).
III. CONCLUSION
In light of our conclusion that plaintiff failed to establish a genuine question of material
fact regarding the existence of an actionable defect of which the city had actual or constructive
notice for the requisite period of time, we need not address the city’s alternative argument that the
plaintiff failed to plead her claim in avoidance of governmental immunity.
We reverse and remand with instructions for the trial court to enter an order granting
summary disposition to the city. We do not retain jurisdiction. Defendant, having prevailed in
full, may tax costs under MCR 7.219(F).
/s/ Christopher M. Murray
/s/ Brock A. Swartzle
/s/ Thomas C. Cameron
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