                           STATE OF MICHIGAN

                            COURT OF APPEALS



DOROTHY JOYCE PARNELL,                                                UNPUBLISHED
                                                                      July 18, 2017
               Plaintiff-Appellee,

v                                                                     No. 332330
                                                                      Wayne Circuit Court
CITY OF DETROIT,                                                      LC No. 15-015107-NO

               Defendant-Appellant.


Before: GADOLA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right an order denying its motion for summary disposition in this
trip-and-fall action. We reverse.

       Defendant argues that the trial court erred in denying its motion for summary disposition
because plaintiff served a defective notice of her claim, see MCL 691.1404(1), and because
defendant was, at any rate, governmentally immune.

        “This Court reviews de novo a trial court’s decision on a motion for summary
disposition.” Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d
223 (2013). If a claim is barred because of “immunity granted by law,” summary disposition
is appropriate pursuant to MCR 2.116(C)(7). When reviewing a motion under MCR
2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them
in favor of the plaintiff, unless other evidence contradicts them. Dextrom v Wexford County, 287
Mich App 406, 428; 789 NW2d 211 (2010). “If any affidavits, depositions, admissions, or other
documentary evidence are submitted, the court must consider them to determine whether there is
a genuine issue of material fact. If no facts are in dispute, and if reasonable minds could not
differ regarding the legal effect of those facts, the question whether the claim is barred is an issue
of law for the court.” Id. at 429 (citations omitted).

       Governmental agencies are immune from tort liability when they are “engaged in the
exercise or discharge of a governmental function.” MCL 691.1407(1). There is a “highway
exception,” however:

              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. A person who sustains bodily injury or damage to
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       his or her property by reason of failure of a governmental agency to keep a
       highway under its jurisdiction in reasonable repair and in a condition reasonably
       safe and fit for travel may recover the damages suffered by him or her from the
       governmental agency. . . . Except as provided in section 2a, the duty of a
       governmental agency to repair and maintain highways, and the liability for that
       duty, extends only to the improved portion of the highway designed for vehicular
       travel and does not include sidewalks, trailways, crosswalks, or any other
       installation outside of the improved portion of the highway designed for vehicular
       travel. . . . [MCL 691.1402(1).]1

        The highway exception to governmental immunity applies to injuries sustained by
pedestrians. Kozak v City of Lincoln Park, 499 Mich 465, 467; 885 NW2d 443 (2016).
Governmental agencies must “protect pedestrians from dangerous or defective conditions in the
improved portion of the highway designed for vehicular travel, even when injury does not arise
as a result of a vehicular accident.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 162; 615
NW2d 702 (2000). If a pedestrian sustains an injury proximately caused by the failure of a
governmental agency to repair and maintain the improved portion of the highway designed for
vehicular travel, he or she may recover damages. Id. at 162-163. Moreover, pedestrians who
sustain injuries while on crosswalks that are within the “improved portion of the highway
designed for vehicular travel” may raise a claim under the highway exception because
“crosswalks” is modified by “outside the improved portion of the highway designed for
vehicular travel” in the statute. Sebring v City of Berkley, 247 Mich App 666, 673-681; 637
NW2d 552 (2001).

        A mere imperfection in a roadway does not constitute a defect unless it does, in fact,
render the highway “not reasonably safe and convenient for public travel.” Wilson v Alpena Co
Rd Comm, 474 Mich 161, 168; 713 NW2d 717 (2006). “[A] road in bad repair, or with rough
payment, is not per se one that is not reasonably safe.” Id. at 169.

        Here, plaintiff tripped over a metal plate that was in the crosswalk, which was inside the
“improved portion of [a] highway designed for vehicular travel . . . .” MCL 691.1402(1). Thus,
defendant had a duty to maintain the highway, including the crosswalk, “in reasonable repair so
that it [was] reasonably safe and convenient for public travel.” Id. The record contains
photographs of the metal plate in question. It is a type of plate that is commonly used during
repairs, and in placing the metal plate in the street, defendant was, in fact, keeping the crosswalk
in reasonable repair and safe for pedestrian travel. Such metal plates are typically used to cover
potholes or other defects in a roadway to provide safety for vehicles and pedestrians. Although
the trial court focused on whether plaintiff had established proper notice of the claim to
defendant, summary disposition in favor of defendant was appropriate as a matter of law because
the photographs demonstrate that the alleged defect, the metal plate in the crosswalk, simply did


1
  “Section 2a” refers to MCL 691.1402a, which provides, in part, that municipal corporations
must maintain sidewalks that are adjacent to a municipal, county, or state highway in reasonable
repair.


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not rise to a level that rendered the highway unreasonably safe and inconvenient for public
travel, and thus defendant was governmentally immune from suit.2 In light of this conclusion,
we need not even reach the issue of notice.

        Reversed and remanded for entry of summary disposition in favor of defendant. We do
not retain jurisdiction.


                                                             /s/ Michael F. Gadola
                                                             /s/ Patrick M. Meter
                                                             /s/ Karen M. Fort Hood




2
   We note that further discovery would not alter this conclusion. We also note an analogy to
Milzarski v Grand Rapids, unpublished opinion per curiam of the Court of Appeals, issued
March 15, 2016 (Docket No. 324950), in which this Court found that a raised manhole cover in a
crosswalk was not an actionable defect. We acknowledge that unpublished opinions are not
binding, and we in fact do not need to rely on Milzarski in resolving this appeal, but nevertheless,
it boosts our conclusion. See Paris Meadows LLC v City of Kentwood, 287 Mich App 136, 145
n 3; 783 NW2d 133 (2010) (unpublished opinions can be considered instructive).


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