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142106 - Whitmore v Charlevoix Rd Comm

Arthur Whitmore and Elaine Whitemore,
 
Liisa R. Speaker
 
Plaintiffs-Appellees,
 
v
(Appeal from Ct of Appeals)
 
 
(Charlevoix – Pajtas, R.)
 
Charlevoix County Road Commission,
 
William L. Henn
 
Defendant-Appellant.
 

​Plaintiffs-Appellees' Supplemental Brief>>
Defendant-Appellant's Application for Leave to Appeal>>
Defendant-Appellant's Supplemental Brief>>
Michigan Association for Justice's Amicus Curiae Brief>>

Summary

​On May 28, 2006, Arthur and Elaine Whitmore were injured when their motorcycle hit a large pothole on Charlevoix County’s Advance Road near the intersection of Cummings Road. Over the next two months, the Charlevoix County Road Commission, which already had a plan to repair the road, patched the pothole and repaved this section of Advance Road.

On September 19, 2006, the Whitmores’ attorney gave the road commission notice of his clients’ injury and the alleged defect in the road, pursuant to MCL 691.1404(1). On May 27, 2008, the Whitmores filed their lawsuit, alleging, among other matters, that the road commission failed to maintain the improved portion of the roadway in reasonable repair, and failed to repair or warn motorists of the “dangerous and defective condition” in the traveled portion of the roadway – the “large, long-existing pothole . . . present in the northbound lane of Advance Road near its intersection with Cummings Road.” The Whitmores relied on MCL 691.1402(1), which states that “each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” The government tort liability act (GTLA), MCL 691.1401 et seq., provides that governmental agencies are liable for injuries arising from road defects only if the agency knew or should have known of the defect: “No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.” MCL 691.1403.

The road commission moved for summary disposition, based in part on its argument that the Whitmores had not established that the road commission knew or should have known of the defect and had a reasonable time to repair it, as required by MCL 691.1403. The trial court denied summary disposition, finding that “it’s clear the Road Commission understood that the road needed to be repaired. They had patched it twice since the day of the accident and then completely re-did it shortly thereafter.”

The Court of Appeals affirmed the trial court’s ruling in a split, unpublished per curiam opinion. With regard to the plaintiffs’ claim that the road commission knew or should have known about the defect, all three Court of Appeals judges agreed that the Whitmores’ allegations were sufficient to reach a jury. The complaint alleged that the road commission had actual and constructive notice of the “large, long-existing pothole of significant depth and width dimensions present in the northbound lane of Advance Road near its intersection with Cummings Road.” The complaint further alleged that the road commission had “previously failed to successfully repair” it. The Court of Appeals held that these allegations were sufficient to fulfill the notice of defect requirements in MCL 691.1403, and that the trial court properly denied summary disposition to the road commission on this issue. The road commission appeals.