Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr.,
Chief Justice

Michael F. Cavanag h Marilyn Kell y Stephen J. Markma n Diane M. Hathawa y Mary Beth Kell y Brian K. Zahra,

J ustices 

# 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 or al argument on the ap plication 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 affirm ing 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 cour t must accept “[t]he contents of the complaint . . . as true unless contradicted by documentation submitte d 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 o pposing 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] ad missible in evidence.” Id.

MCL 691.1403 requires a governmental agency to have either actual or constructive knowledge of the “particular cond ition [that] posed an unreasonable threat to safe public travel . . . .” Wilson v Alpena Co Rd Comm , 474 Mich 161, 169 (2006). Constructive notice is conclusively establis hed when “the defect has been readily apparent to an ordinarily obse rvant person for 30 days or lo nger before the injury.” MCLI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, 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 de fect causing their injuri es existed for 30 days or longer before the injuri es. Accordingly, defendan t is not entitled to summary disposition on this basis.

We clarify that plainti ffs did not properly plead actual knowledge of the particular defect that caused their injuri es because they only allege th at defendant knew of general problems with the highway that required fre quent patching and that defendant scheduled

reconstruction of the highway. Wilson , 474 Mich at 169. The Co urt of Appeals erred to

the extent that its rationale is inconsistent with Wilson

.

The Court of Appeals correctly determin ed 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 loca tion 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 thei r § 1404(1) notice with a police report that specified additional details required by § 1404(1).

We REVERSE in part the judgment of th e Court of Appeals regarding defendant’s motion to strike portions of plaintiffs’ allegati ons relating to defendant’s alleged failure to warn, for the reasons stated in Judge B ANDSTRA ’s partial dissent. Pl aintiffs’ only theory of recovery is based on defe ndant’s duty to maintain the hi ghway “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 ar e barred under § 1402 purs uant to this Court’s

decision in Nawrocki v Maco mb Co Rd Comm , 463 Mich 143 (2 000), as Judge

B ANDSTRA ’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.

C AVANAGH , M ARILYN K ELLY , and H ATHAWAY , JJ., would deny leave to appeal.