Summary
stating that while a party may support a motion brought under MCR 2.116(C) with affidavits, depositions, admissions, or other documentary evidence, the movant is not required to do so, and the opposing party need not reply with supportive material
Summary of this case from Trowell v. Providence Hosp. & Med. Ctrs., Inc.Opinion
Docket No. 142106.COA No. 289672.
2011-12-21
Arthur WHITMORE and Elaine Whitmore, Plaintiffs–Appellees, v. CHARLEVOIX COUNTY ROAD COMMISSION, Defendant–Appellant.
Prior report: Mich.App., 2010 WL 3928749.
Order
On December 7, 2011, the Court heard oral argument on the application for leave to appeal the October 7, 2010 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.302(H)(1). In lieu of granting leave to appeal we AFFIRM the judgment of the Court of Appeals in part.
The Court of Appeals did not err in affirming the trial court's denial of defendant's motion for summary disposition, MCR 2.116(C)(7). In reviewing a motion for summary disposition brought under MCR 2.116(C)(7), a court must accept “[t]he contents of the complaint ... as true unless contradicted by documentation submitted by the movant.” Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999), citing Patterson v. Kleiman, 447 Mich. 429, 434 n. 6, 526 N.W.2d 879 (1994). While “a movant under MCR 2.116(C)(7) is not required to file supportive material, and the opposing party need not reply with supportive material,” a party “may support a motion under MCR 2.116(C)(7) by affidavits, depositions, admissions, or other documentary evidence,” as long as “the substance or content of the supporting proofs [is] admissible in evidence.” Id.
MCL 691.1403 requires a governmental agency to have either actual or constructive knowledge of the “particular condition [that] posed an unreasonable threat to safe public travel....” Wilson v. Alpena Co. Rd. Comm., 474 Mich. 161, 169, 713 N.W.2d 717 (2006). Constructive notice is conclusively established when “the defect has been readily apparent to an ordinarily observant person for 30 days or longer before the injury.” MCL 691.1403. Plaintiffs pled that the alleged defect causing their injuries existed for 30 days or longer before the injuries. Accordingly, defendant is not entitled to summary disposition on this basis.
We clarify that plaintiffs did not properly plead actual knowledge of the particular defect that caused their injuries because they only allege that defendant knew of general problems with the highway that required frequent patching and that defendant scheduled reconstruction of the highway. Wilson, 474 Mich. at 169, 713 N.W.2d 717. The Court of Appeals erred to the extent that its rationale is inconsistent with Wilson.
The Court of Appeals correctly determined that defendant is not entitled to summary disposition for failure to comply with MCL 691.1404(1). MCL 691.1404(1) requires an injured person to serve, within 120 days, notice on the governmental agency that “specif[ies] the exact location and nature of the defect.” Defendant is not entitled to summary disposition under MCR 2.116(C)(7) because it did not challenge below plaintiffs' assertion that they accompanied their § 1404(1) notice with a police report that specified additional details required by § 1404(1).
We REVERSE in part the judgment of the Court of Appeals regarding defendant's motion to strike portions of plaintiffs' allegations relating to defendant's alleged failure to warn, for the reasons stated in Judge BANDSTRA's partial dissent. Plaintiffs' only theory of recovery is based on defendant's duty to maintain the highway “in reasonable repair so that it is reasonably safe and convenient for public travel,” pursuant to MCL 691.1402. Plaintiffs' alleged failure to warn claims are barred under § 1402 pursuant to this Court's decision in Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 615 N.W.2d 702 (2000), as Judge BANDSTRA's partial dissent properly recognized.
We REMAND this case to the Charlevoix Circuit Court for further proceedings consistent with this order.
We do not retain jurisdiction.