Opinion

Noah Fairchild v. City of Southfield

Court
Michigan Court of Appeals
Filed
Jul 17, 2025
Status
Unpublished
Cited by
0 cases
Authority
More cited than 38.0%

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NOAH FAIRCHILD, UNPUBLISHED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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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