Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr.,

 Chief Justice

Michael F. Cavanagh

Marilyn Kelly

Stephen J. Markman

Diane M. Hathaway

Mary Beth Kelly

Brian K. Zahra, Justices

Order 

December 21, 2011 

142106 

ARTHUR WHITMORE and ELAINE 

WHITMORE, 

Plaintiffs-Appellees, 

v SC: 142106 

 COA: 289672 

Charlevoix CC: 08-014922-NO 

CHARLEVOIX COUNTY ROAD 

COMMISSION, 

Defendant-Appellant. 

_________________________________________/ 

 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 (1999), citing Patterson v Kleiman, 447 Mich 

429, 434 n 6 (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 (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 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

December 21, 2011 

t1214 

 

2

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. 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 (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. 

 CAVANAGH, MARILYN KELLY, and HATHAWAY, JJ., would deny leave to appeal.