Ryan Menard v. Terry R Imig

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RYAN MENARD, by his conservator, SHELLY UNPUBLISHED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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