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### STATE OF MICHIGAN

COURT OF APPEALS

PATRICIA THOMAS,

Plaintiff-Appellee, UNPUBLISHED April 20, 2017

v No. 331054 Genesee Circuit Court CITY OF FLINT, LC No. 15-105311-NO

Defendant-Appellant.

Before: F ORT H OOD , P.J., and J ANSEN and H OEKSTRA , JJ.

P ER C URIAM

.
In this action involving the highway exception to governmental immunity, MCL 691.1402, defendant appeals as of right the order denying its m otion for summary disposition. Because plaintiff failed to provide defendant with notice of th e “exact location” of the allegedly defective sidewalk as require d by MCL 691.1404(1), we reverse a nd remand for entry of summary disposition in favor of defendant.

According to plaintiff, she tripped on a defective sidewalk in the City of Flint on August 17, 2013. On August 19, 2013, plaintiff submitted a damage cla im form to defendant, asserting that she stepped into a hole on the sidewalk and “fell on [her] face.” The specific location of the
incident was identified as “M.L.K. – BRIDGE over FLINT RIVER.” On November 12, 2013, and January 10, 2014, plaintiff’s attorney sent defendant notic e of injuries sustained by plaintiff when she “tripped and fell due to cracked, uneven, raised, and broken concrete, on the sidewalk.” Both notices described the location as “Flint River Park, on Martin Luther King, south lane sidewalk on the bridge over the river. Photos attached.” The attached photographs consisted of two photographs taken on August 20, 2013, the first depicting a sidewalk repaired with several patches of asphalt, and the s econd providing a closer view of t wo or three of the patches.

On August 13, 2015, plaintiff filed suit against defendant, al leging in her complaint that defendant breached its duty to keep its streets and sidewalks i n reasonable repair and safe for public travel. Defendant filed a motion for summary dispositio n pursuant to MCR 2.116(C)(7) and (8). Defendant maintained that summary disposition was pro per because plaintiff failed to provide adequate presuit notice of the purported defect as requ ired by MCL 691.1404(1). Specifically, defendant argued th at the notices were deficient because Martin Luther King
Avenue did not cross over the Fl int River, and thus the identif ied location did not exist. Defendant further argued that the attached photographs did not cure the deficiency because the-2- photos depicted multiple areas of patched sidewalk, without pre cisely identifying the allegedly defective condition. In response, plaintiff argued that the no tice provided was adequate because, when considered together, the various notices and photographs p rovided defendant with sufficient information to investigate and remedy the defect. A dditionally, plaintiff argued that a map showed that Martin Luther King Avenue did, in fact, cross o ver the Flint River.

The trial court denied defendant ’s motion for summary disposit ion, concluding that plaintiff’s notice substantially c omplied with the requirements of MCL 691.1404(1). The trial court noted that, in describing the location of her fall, plain tiff had identified “the location of the defect as being in various places.” Further, the trial court r ecognized that, contra ry to plaintiff’s representations, as shown on plai ntiff’s map of the area, Marti n Luther King Avenue clearly did

not cross the Flint River, which was instead traversed via Saginaw Street. Nevertheless, the trial court found plaintiff’s identific ation of the defect’s location sufficient. Emphasizing plaintiff’s photographs, the trial court reas oned that plaintiff’s notice “ certainly” gave defendant the opportunity to investigate plain tiff’s claim as demonstrated by the fact that defendant actually remedied any defect within three days of plaintiff’s fall. Def endant now appeals as of right.

On appeal, defendant argues that the trial court erred in deny ing its motion for summary disposition. As in the trial court, defendant argues that plai ntiff’s notice did not comply with the requirements of MCL 691.1404(1). Specifically, defendant empha sizes that the location identified by plaintiff does not exist because Martin Luther Ki ng Avenue does not cross the Flint
River. Defendant also contends t hat this obviously flawed desc ription is not cured by plaintiff’s photographs, which depict several patched areas of sidewalk wit hout providing any clarity as to where plaintiff’s fall is alleged to have occurred. We agree.

We review a trial court’s denia l of a motion for summary dispo sition de novo. Herman v
Detroit , 261 Mich App 141, 143; 680 NW2d 71 (2004). Likewise, decisio ns regarding the applicability of governmental imm unity and statutory exceptions to governmental immunity involve questions of law, which we review de novo. Snead v John Carlo, Inc , 294 Mich App 343, 354; 813 NW2d 294 (2011). Underl ying questions of statutor y interpretation are also
reviewed de novo. Yono v Dep’t of Transp , 499 Mich 636, 645; 885 NW2d 445 (2016).

Generally, a governmental agency is immune from tort liabilityif it is engaged in the exercise or discharge of a governmental function. MCL 691.1407 (1); Yono , 499 Mich at 646. There are six statutory exceptions to the general grant of immu nity. Hannay v Dep’t of Transp

, 497 Mich 45, 60 n 34; 860 NW2d 67 (2014). As relevant to this appeal, the highway exception provides that “[e]ach governmental agency having jurisdiction o ver a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” MCL 691.1402(1). Under this exception, an individual may “reco ver the damages suffered by him or her resulting from a municipality's failure to keep high ways—including sidewalks, MCL 691.1401(c)—in reasonable repair and in a condition reasonably safe and fit for travel.” Bernardoni v Saginaw , 499 Mich 470, 473; 886 NW2d 109 (2016) (citation and quotatio n marks omitted). See also MCL 691.1402(1); MCL 691.1402a(2).

However, it is well-settled that the Legislature may place con ditions or limitations on the imposition of liability on a governmental agency. McCahan v Brennan , 492 Mich 730, 736; 822 NW2d 747 (2012). One of these conditions is found in MCL 691.1 404, which imposes a notice-3- requirement upon a plaintiff as a condition to any recovery for injuries sustained by reason of a defective highway. See Rowland v Washtenaw Co Rd Comm , 477 Mich 197, 203-204, 212; 731 NW2d 41 (2007). The statute pr ovides, in relevant part:

(1) As a condition to any recovery for injuries sustained by r eason of any defective highway, the injured person, within 120 days from the time the injury occurred, . . . shall serve a not ice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.

The language of the statute is clear and it must be enforced as written, meaning that noncompliance with this provision will not be excused and the f ailure to comply with the statute requires dismissal of a plainti ff’s claim, regardless of a show ing of actual prejudice to the
defendant. McCahan , 492 Mich at 744-745; Rowland , 477 Mich at 200, 219. The purpose of the notice requirement is to give the governmental agency the opportunity to investigate the claim
while the evidence is still fre sh and to cure the defect before other individuals are injured. Burise v City of Pontiac , 282 Mich App 646, 652; 766 NW2d 311 (2009). In addition to p roviding
officials with information to inve stigate the alleged defect, the notice requirement also serves the purpose of confining the potential plaintiff to a specific spot where the injury wa s alleged to have
occurred. Dempsey v Detroit , 4 Mich App 150, 152; 144 NW2d 684 (1966).

The notice required by MCL 691.1404 need not be in any particu lar form, but it must identify the exact location and the nature of the defect, the i njury sustained, and witnesses to the injury’s occurrence. Burise , 282 Mich App at 653-654. Notably, because the notice is requ ired of “an average citizen for the benefit of a governmental entity ,” this Court has recognized that the notice requirement should be construed “to avoid penalizing an inexpert layman for some
technical defect.” Plunkett v Dep’t of Transp , 286 Mich App 168, 176; 779 NW2d 263 (2009). Consequently, the information pr ovided in the notice “need onlybe understandable and sufficient to bring the important facts to the governmental ent ity’s attention.” Id. Further, the sufficiency of the notice of a claim is contingent upon the ent ire notice and all of the facts stated
therein. See Rule v Bay City , 12 Mich App 503, 507-508; 163 NW 2d 254 (1968). “Some degree of ambiguity in an aspect of a particular notice may be remedie d by the clarity of other aspects.”
McLean v Dearborn , 302 Mich App 68, 75; 836 NW2d 916 (2013) (citation omitted). In other words, substantial compliance wi th the notice requirement may s uffice as long as the plaintiff’s description of the nature of the defect, combined with other as pects, such as the specific description of the location and time and nature of the injuries , is sufficient to clarify or remedy an ambiguity or deficiency. Plunkett , 286 Mich App at 177.

With regard to the requirement that a plaintiff provide notice of the “exact location” of the defect, a description of the location is deficient if it in cludes an incorrect address without other means of identifying the location. Jakupovic v City of Hamtramck , 489 Mich 939; 798 NW2d 12 (2011); Thurman v City of Pontiac , 295 Mich App 381, 385-386; 819 NW2d 90 (2012). Likewise, without clari fying information, a descriptio n that places the defect somewhere near the intersection of two roads or that provides an address “near” the defect without providing more specific information, such as the fact that the defect is in actuality 40 yards away, is too vague to identify the place of inj ury and to comply with the st atute. See Thurman , 295 Mich-4- App at 385, citing Dempsey , 4 Mich App at 151-152; Smith v City of Warren , 11 Mich App 449, 452-453; 161 NW2d 412 (1968). Moreover, the fact that a govern mental entity actually succeeds in finding a defect and making repairs is immaterial t o the adequacy of the notice given because “the notice must describe the place of injury sufficien tly to make it identifiable from the
notice itself.” Dempsey , 4 Mich App at 151-152.

In the present case, plaintiff first provided defendant with n otice of a location that does not exist. Specifically, the damage claim form identified the location of the fall as “M. L. K. – Bridge over FLINT RIVER.” Howev er, Martin Luther King Avenue d oes not cross the Flint River. By failing to specify a n existing location, plaintiff c learly failed to identify “the exact
location” of the defect. Cf. Jakupovic , 489 Mich at 939; Thurman , 295 Mich App at 385-386.

Aside from the damage form submitted by plaintiff, the notice provided by plaintiff’s attorney added confusion, rather than clarity, to the location of the alleged defect. The notice provided by plaintiff’s attorney described the location in ques tion as: “Flint River Park, on Martin Luther King, south lane sidewalk on the bridge over the river.” This description includes a variety of geographical markers: (1) the Flint River Park, ( 2) Martin Luther King Avenue, and (3) the south lane sidewalk on the bridge over the river. But, it is entirely unclear what is meant by reference to these locations g iven that, as noted, Martin Lu ther King Avenue does not cross the Flint River. Rather, Saginaw Street crosses the river. Thus, insofar as the notice indicates that the defect is on a sidewalk on the bridge, because the str eet going over the bridge is not correctly identified, plaintiff’s notice is deficient. See Jakupovic , 489 Mich at 939; Thurman

, 295 Mich App at 385-386. Convers ely, to the extent the notice suggests that the d efect is in Flint River Park on Martin Luther King Avenue, such a description is clearly at odds with the assertion that the defect is on a bridge because, again, Martin Luther King Avenue does not cross the river. Such imprecise and in consistent—indeed, incorrect—i nformation, falls far short of identifying the exact location of the defect as required by MCL 691.1404(1). See Jakupovic , 489 Mich at 939; Thurman , 295 Mich App at 385-386. At best, when the notices are read together, the various locations identifie d by plaintiff suggest a general area in Flint. But, simply alleging a location in a general area is too vague a description to satisf y the notice requirement in MCL 691.1404(1). See Dempsey , 4 Mich App at 151-152; Smith , 11 Mich App at 452.

Lastly, we also conclude that plaintiff’s photographs fail to cure the insufficiency of her written descriptions. The first photograph depicts a lengthy v iew of the sidewalk with various patches of asphalt over the sidewalk area. The second photograph is a close-up of two or three large asphalt patches on the sidewalk. Although the images dep ict numerous patches, plaintiff does not identify the exact area of patching that constitutes t he location of her trip and fall. Without more specificity from plaintiff, there is no way to det ermine from the photographs which of the various similar-looking patches constitutes the “e xact location” of the defect.

Moreover, even considering the patches collectively, there is no way to determine the location of the patches from the photographs. Both photographs show relatively generic shots of sidewalk, devoid of street signs or distinguishing landmarks th at would alert a viewer to the-5- “exact location.” There is also nothing particularly unique ab out a patched sidewalk. 1 Cf. Rule

, 12 Mich App at 508. Indeed, the sc enes shown in the pictures r esemble any number of repaired sidewalks across various cities in Michigan and the United Stat es. Such commonplace images are not sufficient, on their own, to impart notice of the defec t’s exact location. And, because plaintiff’s written explanations contain inconsistent and impre cise descriptions involving a nonexistent location, there is no written reference point to gi ve context or meaning to these generic photographs. Cf. McLean , 302 Mich App at 76 (finding presuit notice sufficient when the defect was described as being located “directly across the street from 1136 Mason, Dearborn” and the pictures showed landmarks, such as a light po st, a large line in the concrete, and the doorway of the building, which would assist the city inlocating the hole in the concrete). Quite simply, even when plaintiff’s written description is cons idered in conjunction with her photographs, she has failed to provide understandable and suffi cient information to bring the
exact location of the defect t o defendant’s attention. See Plunkett , 286 Mich App at 176-177.

Given her failure to identify th e exact location of the defect , it is clear that plaintiff has failed to substantially comply w ith the notice requirements of MCL 691.1404(1). Having failed to fulfill the presuit noti ce requirement of MCL 691.1404(1), p laintiff cannot pursue her claim.
See Rowland , 477 Mich at 201. Thus, plaintiff’s claim must be dismissed, and the trial court erred by denying defendant’s motion for summary disposition.

Reversed and remanded for entry of an order granting defendant ’s motion for summary disposition. We do not r etain jurisdiction.

/s/ Karen M. Fort Hood
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra

1 In finding plaintiff’s notice sufficient, the trial court emph asized that the pictures showed patches, suggesting that notice must have been sufficient becau se it appeared that defendant had found the defective sidewalk and made repairs. However, there is no evidence that the repairs shown in the pictures were undert aken as a result of the notice provided by plaintiff or that
defendant located the area based on plaintiff’s descriptions. More importantly, it is ultimately irrelevant whether defendant repaired the defect because, regar dless of defendant’s conduct, the notice must describe the place of injury sufficiently to make i t identifiable from the notice itself. Dempsey , 4 Mich App at 151-152. Thus, the fact that defendant made re pairs is not dispositive.