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BIRGETTA WALKER, UNPUBLISHED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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