                          STATE OF MICHIGAN

                           COURT OF APPEALS



TEARRIA PATON,                                                     UNPUBLISHED
                                                                   June 28, 2016
               Plaintiff-Appellee,

v                                                                  No. 326073
                                                                   Wayne Circuit Court
CITY OF DETROIT,                                                   LC No. 14-009513-NO

               Defendant-Appellant.


Before: MURPHY, P.J., and SAAD and BORRELLO, JJ.

PER CURIAM.

        In May 2014, plaintiff allegedly tripped over the remnants of a metal pole, apparently an
old sign post, which had been sheared off close to the ground and was protruding from and
embedded in a sidewalk located near an intersection in Detroit. Defendant City of Detroit (the
city) appeals an order denying its motion for summary disposition that had been pursued on the
basis of governmental immunity.1 The trial court rejected the city’s arguments that plaintiff’s
notice of injury and defect under MCL 691.1404 was deficient and that the highway exception to
governmental immunity under MCL 691.1402 was not implicated as a matter of law, as there
was no defect in the sidewalk itself. The city renews these arguments on appeal. With respect to
the notice issue, we affirm the trial court’s ruling, and in regard to the applicability of the
highway exception to governmental immunity, we reverse and remand for further proceedings
under MCL 691.1402a.

      Plaintiff’s complaint was expressly predicated on the highway exception to governmental
immunity, MCL 691.1402, Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 148; 615 NW2d


1
  Plaintiff argues that the city’s claim of appeal should be dismissed for lack of jurisdiction,
maintaining that while the trial court’s summary disposition order on the issue of governmental
immunity constitutes a “final order” for purposes of MCR 7.203(A)(1) and MCR 7.202(6)(a)(v),
these court rules unconstitutionally expand this Court’s statutory jurisdiction. We decline to
address this argument. Assuming the validity of plaintiff’s argument, we shall, in the exercise of
our discretion, treat the city’s appeal as an application for leave, grant leave, and proceed to
address the issues presented. See Rains v Rains, 301 Mich App 313, 320 n 2; 836 NW2d 709
(2013).


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702 (2000), and the municipal-corporation sidewalk exception to governmental immunity, MCL
691.1402a. Although both provisions were cited in the complaint, and aside from the notice
issue, the parties’ subsequent summary disposition arguments focused solely on MCL 691.1402
and the statute’s interpretation in Nawrocki and Nawrocki’s progeny, not MCL 691.1402a. The
trial court made its ruling denying summary disposition on the basis of MCL 691.1402 and the
cases construing that statute. MCL 691.1402a, which was substantially amended pursuant to
2012 PA 50 and made effective March 13, 2012, more than two years before plaintiff’s accident,
provides:

               (1) A municipal corporation in which a sidewalk is installed adjacent to a
       municipal, county, or state highway shall maintain the sidewalk in reasonable
       repair.

               (2) A municipal corporation is not liable for breach of a duty to maintain a
       sidewalk unless the plaintiff proves that at least 30 days before the occurrence of
       the relevant injury, death, or damage, the municipal corporation knew or, in the
       exercise of reasonable diligence, should have known of the existence of the defect
       in the sidewalk.

              (3) In a civil action, a municipal corporation that has a duty to maintain a
       sidewalk under subsection (1) is presumed to have maintained the sidewalk in
       reasonable repair. This presumption may only be rebutted by evidence of facts
       showing that a proximate cause of the injury was 1 or both of the following:

              (a) A vertical discontinuity defect of 2 inches or more in the sidewalk.

               (b) A dangerous condition in the sidewalk itself of a particular character
       other than solely a vertical discontinuity.

              (4) Whether a presumption under subsection (3) has been rebutted is a
       question of law for the court.

               (5) A municipal corporation's liability under subsection (1) is limited by
       section 81131 of the natural resources and environmental protection act, 1994 PA
       451, MCL 324.81131.[2.]

        Under 2012 PA 50, the Legislature also amended MCL 691.1402(1), indicating that the
duty of a governmental agency to repair and maintain highways, and the attendant liability for
that duty, do not encompass sidewalks, “[e]xcept as provided in section 2a [MCL 691.1402a].”
The city is a “municipal corporation,” and the sidewalk at issue is located “adjacent to a
municipal, county, or state highway[.]” MCL 691.1402a. Accordingly, MCL 691.1402a
governs the instant case, not MCL 691.1402. MCL 691.1402a contains some fairly unique


2
 The amendment was in response to our Supreme Court’s opinion in Robinson v Lansing, 486
Mich 1; 782 NW2d 171 (2010). See Senate Legislative Analysis, HB 4589, February 1, 2012.


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language, and we reverse the trial court’s ruling rendered under MCL 691.1402 and remand for
the trial court to entertain the city’s motion for summary disposition under MCL 691.1402a,
upon additional briefing by the parties.3

       Next, MCL 691.1404(1) provides:

               As a condition to any recovery for injuries sustained by reason of any
       defective highway, the injured person, within 120 days from the time the injury
       occurred, except as otherwise provided in subsection (3) shall serve a notice 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. [Emphasis added.]

        MCL 691.1404 was not amended in the 2012 legislation, but while MCL 691.1402a
refers to the duty to maintain sidewalks and not highways, MCL 691.1401(c) generally defines a
“highway” as including a “sidewalk” for purposes of the governmental tort liability act, MCL
691.1401 et seq. Therefore, the notice requirement of MCL 691.1404 applies to cases involving
a claim that a municipal sidewalk was not kept in reasonable repair as required by MCL
691.1402a. We agree with the trial court that plaintiff’s two notices, which were both
indisputably served within the 120-day period, satisfied the requirements of MCL 691.1404(1)
when considered together. In Plunkett v Dep’t of Transp, 286 Mich App 168, 176-177; 779
NW2d 263 (2009), this Court acknowledged, reviewed, and applied caselaw interpreting MCL
691.1404, observing:

               The Michigan Supreme Court has established that MCL 691.1404 is
       straightforward, clear, unambiguous, and not constitutionally suspect and must be
       enforced as written. However, when notice is required of an average citizen for
       the benefit of a governmental entity, it need only be understandable and sufficient
       to bring the important facts to the governmental entity's attention. Thus, a liberal
       construction of the notice requirements is favored to avoid penalizing an inexpert
       layman for some technical defect. The principal purposes to be served by
       requiring notice are simply (1) to provide the governmental agency with an
       opportunity to investigate the claim while it is still fresh and (2) to remedy the
       defect before other persons are injured.

               The requirement should not receive so strict a construction as to make it
       difficult for the average citizen to draw a good notice. A notice should not be held
       ineffective when in substantial compliance with the law. A plaintiff's description
       of the nature of the defect may be deemed to substantially comply with the statute


3
  This Court reviews de novo a trial court’s decision on a motion for summary disposition,
Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011),
issues of statutory construction, Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008),
and the applicability of governmental immunity, Snead v John Carlo, Inc, 294 Mich App 343,
354; 813 NW2d 294 (2011).


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       when coupled with the specific description of the location, time and nature of
       injuries. Some degree of ambiguity in an aspect of a particular notice may be
       remedied by the clarity of other aspects. [Citations, quotation marks, alteration
       brackets, and ellipses omitted.]

         In plaintiff’s original notice served in June 2014, she indicated that she “tripped over a
broken pole on the sidewalk” at “the intersection of Macomb and Beaubien St.” In the
supplemental notice served in July 2014, which consisted of a claim form provided by the city
and filled out by plaintiff, she stated that she “tripped over a broken metal pole sticking out of
the ground” while walking on a sidewalk adjacent to Beaubien St. near the intersection of
Macomb St. As requested by the city in the claim form, plaintiff provided a diagram of the area,
which reflected the intersection, marking the specific spot on Beaubien St. where she tripped
over the remnants of the pole. The diagram revealed the side of the street where the alleged
defect was located, and the diagram had an arrow pointing north, so as to give the reader his or
her directional bearings. Further, in the original notice, plaintiff indicated that she had “sustained
injuries to her leg,” which required several stitches when being treated at Harper Hospital. In the
supplemental notice, to which she attached a medical release, plaintiff stated that her leg was
ripped open by the jagged pole remnant, exposing flesh and necessitating “12 stitches and a
tetanus shot.” Finally, in the original notice, plaintiff indicated a “belief that the incident was
witnessed by her father.” In the supplemental notice, plaintiff listed the names of two additional
witnesses and their phone numbers. We note that the city does not even argue on appeal that the
witness disclosures were inadequate under MCL 691.1404(1), thus waiving that issue. In sum,
we conclude that plaintiff “specif[ied] the exact location and nature of the defect, the injury
sustained and the names of the witnesses known at the time by” plaintiff, thereby satisfying MCL
691.1404(1). The city’s arguments to the contrary are simply unavailing. The trial court did not
err in finding compliance with MCL 691.1404(1).

       Affirmed with respect to the notice issue, reversed in regard to the applicability of the
highway exception to governmental immunity under MCL 691.1402, and remanded for further
proceedings under MCL 691.1402a consistent with this opinion. We do not retain jurisdiction.
Neither party having fully prevailed, we decline to award taxable costs under MCR 7.219.



                                                              /s/ William B. Murphy
                                                              /s/ Henry William Saad
                                                              /s/ Stephen L. Borrello




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