The opinion
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
NOAH FAIRCHILD, UNPUBLISHED
July 17, 2025
Plaintiff-Appellant, 9:51 AM
v No. 371041
Oakland Circuit Court
CITY OF SOUTHFIELD, LC No. 2023-200362-NO
Defendant-Appellee.
Before: GADOLA, C.J., and RICK and YATES, JJ.
PER CURIAM.
Plaintiff, Noah Fairchild, appeals as of right an opinion and order granting summary
disposition to defendant, the city of Southfield, under MCR 2.116(C)(7) (immunity granted by
law). We affirm.
I. FACTUAL BACKGROUND
This action arises out of injuries sustained by plaintiff on Evergreen Road in Southfield,
Michigan. On September 28, 2021, plaintiff purchased an electric skateboard on Facebook
Marketplace. Plaintiff was riding the skateboard northbound on Evergreen Road at approximately
10:30 p.m., using the flashlight from his cell phone to navigate in the dark. The skateboard can be
used with a handheld remote, which plaintiff was holding in his other hand. The skateboard’s top
speed was approximately 26 miles per hour, but plaintiff estimated that he was going 18 miles per
hour at the time. In his deposition, plaintiff stated that a car came up behind him and that he
“veer[ed] to the left a little bit to let [the car] pass.” While moving out of the car’s way, plaintiff
struck a pothole located “maybe 3 feet from the left-hand turn lane.” Plaintiff was thrown from
the skateboard and broke his wrist in the fall. He then got up and rode the skateboard home.
Plaintiff filed a complaint in May 2023, alleging that defendant was liable under the
highway exception to governmental immunity, MCL 691.1402, for failing to maintain Evergreen
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Road in reasonable repair.1 In June 2023, defendant filed an answer and generally denied liability.
Defendant also filed a list of affirmative defenses, including that plaintiff’s claim was barred
because defendant did not have notice of an alleged defect in the road. Defendant further alleged
that plaintiff’s own negligence was the sole cause of his injury, noting that plaintiff was illegally
operating a motorized vehicle on Evergreen Road when the injury occurred.
Defendant filed a motion for summary disposition in March 2024. Defendant sought
summary disposition under MCR 2.116(C)(7), arguing that it was entitled to statutory immunity
under the governmental tort liability act, MCL 691.1401 et seq. Defendant contended that the
highway exception to governmental immunity did not apply because the roadway was reasonably
safe for public travel. Defendant stated that the section of Evergreen Road where plaintiff was
injured was entirely reconstructed between 2013 and 2016. Defendant also pointed out that
plaintiff was riding his electric skateboard illegally down a dimly lit road at night when he was
injured. Defendant argued that, given the circumstances presented, plaintiff could not show that
the condition of the road was unsafe or that it caused him to fall.
Defendant also argued that it lacked actual or constructive notice of the pothole, as required
by MCL 691.1403. Defendant presented evidence that no complaints were made about that section
of Evergreen Road or the specific pothole that caused plaintiff’s injury. Defendant also observed
that plaintiff presented photographs of the pothole in support of his argument, but noted that the
photographs were taken in November 2023, well after plaintiff fell in September 2023. Defendant
contended that plaintiff had no foundation for establishing when the pothole was formed, noting
that in his deposition, plaintiff claimed to “ha[ve] a poor memory of that time period.” Defendant
also noted that plaintiff failed to produce an expert witness to explain how the pothole formed or
any other witnesses who might be able to help support his claim that defendant had notice that the
pothole existed in September 2023. Defendant thus asked the trial court to grant its motion for
summary disposition.
Plaintiff filed a response to the motion on March 27, 2024. Plaintiff argued that defendant
had actual and constructive notice of the defect. Plaintiff pointed out that defendant erroneously
relied on MCL 691.1402a, which only applies to sidewalks, rather than MCL 691.1403, which
provides the notice period for highway defects. Plaintiff presented Google Street View images
from October 2020, photographs of the road from November 2023,2 and the deposition testimony
of Patrick Ryan, defendant’s Director of Public Works. Plaintiff indicated that in his deposition,
Ryan stated that some sort of rubberized sealant had been used to repair the pothole, but that it was
his opinion that sealant would not be effective for fixing a hole in concrete. Based on the evidence,
plaintiff argued that defendant had notice and a reasonable time to repair the defect before plaintiff
was injured, but failed to do so. Plaintiff additionally argued that notice is a question of fact that
1
The record does not indicate whether plaintiff filed a separate notice of the defect, per
MCL 691.1404. However, we note that a complaint may serve as proper notice. Champine v
Dep’t of Transp, 509 Mich 447, 454; 983 NW2d 741 (2022).
2
The photographs are not dated, but defendant presented proof, in the form of an e-mail exchange
with opposing counsel, that they were taken on November 7, 2023.
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should be placed before a jury, rather than a question of law for the trial court. Plaintiff therefore
asked the court to deny defendant’s motion for summary disposition.
In May 2024, the trial court issued an opinion and order granting defendant’s motion for
summary disposition under MCR 2.116(C)(7). The trial court found that plaintiff failed to
establish that the pothole rendered the road an unreasonable threat to public travel, and further
failed to prove that defendant had actual or constructive notice of the alleged defect. This appeal
followed.
II. ANALYSIS
Plaintiff argues that the trial court erred by granting summary disposition to defendant
under MCR 2.116(C)(7) because defendant had constructive notice of the defect 3 and failed to
maintain the road in reasonable repair. We disagree.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Dye v
Esurance Prop & Cas Ins Co, 504 Mich 167, 179; 934 NW2d 674 (2019). “Summary disposition
under MCR 2.116(C)(7) is appropriate when a claim is barred because of immunity granted by
law.” Mays v Snyder, 323 Mich App 1, 25; 916 NW2d 227 (2018). “When reviewing a motion
under MCR 2.116(C)(7), the trial court must accept as true all of the plaintiff’s well-pleaded
factual allegations and construe them in favor of the plaintiff unless disputed by documentary
evidence submitted by the moving party.” Norman v Dep’t of Transp, 338 Mich App 141, 146;
979 NW2d 390 (2021). If, after reviewing the evidence, the court finds that “no material facts are
in dispute, or if reasonable minds could not differ regarding the legal effect of the facts, the
question whether the claim is barred by governmental immunity is an issue of law” for the court
to decide. Mays, 323 Mich App at 25.
Plaintiff first argues that defendant had constructive notice of the alleged defect in the road.
Under the GTLA, a governmental agency is immune from tort liability when it is “engaged in the
exercise or discharge of a governmental function.” MCL 691.1407(1). There is no dispute that
defendant is a governmental agency under the GTLA, and that maintaining roads is a governmental
function. However, “[a] governmental agency can be held liable under the GTLA only if a case
falls into one of the enumerated statutory exceptions.” Moraccini v Sterling Hts, 296 Mich App
387, 391-392; 822 NW2d 799 (2012)(quotation marks and citations omitted). “This Court broadly
construes the scope of governmental immunity and narrowly construes its exceptions.” Milot v
Dep’t of Transp, 318 Mich App 272, 276; 897 NW2d 248 (2016). Plaintiff’s potential liability in
this matter is premised on the highway exception to governmental immunity, MCL 691.1402(1),
which provides:
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
3
Although plaintiff argued in the trial court that defendant had actual notice of the defect,
plaintiff’s argument on appeal pertains solely to constructive notice.
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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. [MCL 691.1402(1).]
MCL 691.1403 sets forth the notice requirement for bringing a claim under the highway exception.
It states:
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.]
In other words, a governmental agency that has jurisdiction over a highway has a duty to
maintain that highway in reasonable repair and will only be held liable for damages “if the road
has become, through lack of repair or maintenance, not reasonably safe for public travel.” Wilson
v Alpena Co Rd Comm, 474 Mich 161, 167; 713 NW2d 717 (2006). It is not enough for
imperfections to exist in the surface of a highway; such imperfections must instead pose an
unreasonable threat to safe public travel. Id. at 168. As noted, the governmental agency must have
had actual or constructive notice of the condition before the accident occurred. Id. at 168-169. A
governmental agency is presumed to have knowledge of a defective condition in the road if “the
defect has been readily apparent to an ordinarily observant person for 30 days or longer before the
injury.” Id. at 169.
Here, plaintiff has failed to present any evidence to demonstrate that the defect existed for
at least 30 days before the injury or that it was readily apparent to an ordinarily observant person.
Id. The bulk of plaintiff’s evidence consists of Google Street View images from October 2020
and photographs taken in November 2023. The October 2020 Google Street View images show
that the area where plaintiff fell was covered by what has been described as rubberized sealant,
whereas the November 2023 photographs show that the sealant had disintegrated, leaving a long
and narrow pothole in the road. The October 2020 photographs were taken years before plaintiff
fell, whereas the November 2023 photographs were taken well after plaintiff fell. While plaintiff
clearly intends to suggest that the condition of the road deteriorated between October 2020 and
November 2023, plaintiff presents no evidence that the condition of the road as presented in the
November 2023 photographs reflects the condition of the road 30 days before plaintiff’s September
2023 injury. Moreover, plaintiff presents no evidence that defendant knew the road had
deteriorated between October 2020 and November 2023, up to 30 days before plaintiff’s injury,
much less when plaintiff fell in September 2023. Thus, plaintiff’s photographic evidence does not
adequately indicate that defendant had constructive notice of the defect 30 days before plaintiff’s
injury occurred.
Aside from the photographs and plaintiff’s own description of the incident, plaintiff also
presents Ryan’s deposition in support of his argument. He claims that, in his deposition, Ryan
“confirmed that the broken concrete where [plaintiff] fell had previously been held together by
rubberized sealant,” suggesting that defendant had constructive notice of a defect in the road.
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However, as the trial court observed, plaintiff wholly misinterprets Ryan’s testimony. A fair
reading of Ryan’s deposition indicates only that Ryan was asked whether he thought rubberized
sealant could repair a pothole in concrete, to which he responded that applying rubberized sealant
to concrete “is not the best method” for repairing potholes in concrete. Ryan’s general opinion
was simply that rubberized sealant does not work well on concrete. At no point did Ryan testify
regarding the specific pothole where defendant fell, nor did he admit that he or defendant knew
the pothole existed prior to plaintiff’s September 2023 injury. Plaintiff presents no further
evidence—such as city records, community complaints, or other pieces of documentary
evidence—to support the contention that defendant knew about the defect. Additionally, we note
that defendant presented documentation of reported potholes in Southfield dating back to 2006,
and none of them pertained to the pothole on Evergreen Road where plaintiff was injured. Plaintiff
did not present any documentation in rebuttal. Without such evidence, plaintiff cannot invoke the
highway exception to governmental immunity. Accordingly, the trial court did not err by granting
summary disposition to defendant under MCR 2.116(C)(7).
Plaintiff additionally argues that questions of fact remain regarding whether the portion of
Evergreen Road where he fell was reasonably safe for public travel under MCL 691.1402(1).
However, as we have discussed at length, a governmental agency must have actual or constructive
notice of a defect that renders the highway not reasonably safe and convenient for public travel
before immunity can be waived. See Wilson, 474 Mich at 168, quoting MCL 691.1402(1)
(“[W]hile MCL 691.1402(1) only imposes on the governmental agency the duty to ‘maintain the
highway in reasonable repair,’ in order to successfully allege a violation of that duty, a plaintiff
must allege that the governmental agency was on notice that the highway contained a defect
rendering it not ‘reasonably safe and convenient for public travel’ ”). Because plaintiff has not
shown that defendant had notice of the defect at issue in this case, he cannot establish that the
highway exception to governmental immunity applies. We thus decline to further address, as a
separate line of inquiry, whether defendant breached its duty to maintain the road in reasonable
repair under MCL 691.1402(1).
Affirmed.
/s/ Michael F. Gadola
/s/ Michelle M. Rick
/s/ Christopher P. Yates
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