If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

KIMBERL E Y GILEWSKI and ERIC GILEWSKI,

Plaintiffs

- Appellees, UNPUBLISHED July 2, 2020

v No. 347313 Wayne Circuit Court CITY OF DETROIT, LC No. 17

- 005154

- NI

Defendant

- Appellant, and

WAYNE COUNTY,

Defendant.

Before: M URRAY , C .J., and J ANSEN and M ARKEY , JJ.

M URRAY , C.J

. , ( concurr ing ).

I concur in the conclusion that plaintiff s create d a question of fact on whether the City had constructive notice under the highway exception to the Governmental Tort Liability Act (GTLA), MCL 691.140 1 et seq. , and in particular, MCL 691.1403. This conclusion is compelled by Peters v State , 400 Mich 50

, 6 3 ; 252 NW2d 799 (1977 ), where the Court stated that “[i] f the design itself is not defective but the construction was defective in not following the design, the State could likewise be held to have notice. In that case it would be possible to conclude that the State ought, in the exercise of reasonable diligence, to know of deviations in the construction of highway systems from the design plans

. ” B ut the continued viability of Peters is debatable. There is no doubt that Peters has not been reversed, b ut the Court has rejected dicta within Peters regarding the scope of the duty to maintain a highway under MCL 691.1403. Hanson v Bd of Co Rd Comm’rs of Mecosta

, 465 Mich 492, 501 n 7; 638 NW2d 396 (2002) (“ We disagree with dicta in cases such

as

. . . [ Pe ters ] that the duty to maintain a road in a reasonably safe condition includes the duty to correct defects arising from the original design or construction of highways. ”)

. Importantly, the conclusion on constructive notice was related to that outdated vie w on the scope of duty under the highway exception.- 2

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Peters also seems to be inconsistent with the specific language of MCL 691.1403, as that notice requirement focuses upon the defect that caused the injury, not some speculative possibility that not complying with a contractual term may then lead to a defect that causes an injury. In other words

, under these circumstances the statute focuses on whether the City should have known that the cold patch would s i nk subsequent to the r epairs being done in violation of the contract

, requiring some evidence that settling below the roadbed had previously occurred when all the contractual fill

- in procedures had not been followed, or that the cold patch was below the roadbed surface at the c ompletion of the temporary repairs, or some other similar evidence

. See Wilson v Alpena Co R d Com m , 474 Mich 161, 168; 713 NW2d 717 (2006) , where the Court held that under MCL 691.1403

, a municipality “must have had actual or constructive notice of ‘the d efect’ before the accident occurred ,” and that a “defect” under MCL 691.1403, is an “imperfection

. . . which renders the highway not ‘ reasonably safe and convenient for public travel. ’ ”

However, because a good faith application of Peters is required, I concur in the majority opinion to affirm.

/s/ Christopher M. Murray