If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

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

KIMBERLEY 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UNPUBLISHED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: MURRAY, C.J., and JANSEN and MARKEY, JJ.

MURRAY, C.J., (concurring).

I concur in the conclusion that plaintiffs created a question of fact on whether the City had 

constructive notice under the highway exception to the Governmental Tort Liability Act (GTLA), 

MCL 691.1401 et seq., and in particular, MCL 691.1403. This conclusion is compelled by Peters 

v State, 400 Mich 50, 63; 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.” But the continued viability of Peters is debatable. There is no 

doubt that Peters has not been reversed, but 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 . . . [Peters] 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conclusion on constructive notice was related to that outdated view on the scope of duty under the 

highway exception. 
-2-

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 sink subsequent to the repairs 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 completion of the temporary repairs, or some other similar evidence. See Wilson v 

Alpena Co Rd Comm, 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 defect’ 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