             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                            COURT OF APPEALS


KIMBERLEY GILEWSKI and ERIC GILEWSKI,                                  UNPUBLISHED
                                                                       July 2, 2020
               Plaintiffs-Appellees,

v                                                                      No. 347313
                                                                       Wayne Circuit Court
CITY OF DETROIT,                                                       LC No. 17-005154-NI

               Defendant-Appellant,
and

WAYNE COUNTY,

               Defendant.


Before: MURRAY, C.J., and JANSEN and MARKEY, JJ.

MURRAY, C.J., (concurring).

          I concur in the conclusion that plaintiffs created a question of fact on whether the City had
constructive notice under the highway exception to the Governmental Tort Liability Act (GTLA),
MCL 691.1401 et seq., and in particular, MCL 691.1403. This conclusion is compelled by Peters
v State, 400 Mich 50, 63; 252 NW2d 799 (1977), where the Court stated that “[i]f the design itself
is not defective but the construction was defective in not following the design, the State could
likewise be held to have notice. In that case it would be possible to conclude that the State ought,
in the exercise of reasonable diligence, to know of deviations in the construction of highway
systems from the design plans.” But the continued viability of Peters is debatable. There is no
doubt that Peters has not been reversed, but the Court has rejected dicta within Peters regarding
the scope of the duty to maintain a highway under MCL 691.1403. Hanson v Bd of Co Rd Comm’rs
of Mecosta, 465 Mich 492, 501 n 7; 638 NW2d 396 (2002) (“We disagree with dicta in cases such
as . . . [Peters] that the duty to maintain a road in a reasonably safe condition includes the duty to
correct defects arising from the original design or construction of highways.”). Importantly, the
conclusion on constructive notice was related to that outdated view on the scope of duty under the
highway exception.




                                                 -1-
        Peters also seems to be inconsistent with the specific language of MCL 691.1403, as that
notice requirement focuses upon the defect that caused the injury, not some speculative possibility
that not complying with a contractual term may then lead to a defect that causes an injury. In other
words, under these circumstances the statute focuses on whether the City should have known that
the cold patch would sink subsequent to the repairs being done in violation of the contract,
requiring some evidence that settling below the roadbed had previously occurred when all the
contractual fill-in procedures had not been followed, or that the cold patch was below the roadbed
surface at the completion of the temporary repairs, or some other similar evidence. See Wilson v
Alpena Co Rd Comm, 474 Mich 161, 168; 713 NW2d 717 (2006), where the Court held that under
MCL 691.1403, a municipality “must have had actual or constructive notice of ‘the defect’ before
the accident occurred,” and that a “defect” under MCL 691.1403, is an “imperfection . . . which
renders the highway not ‘reasonably safe and convenient for public travel.’ ”

       However, because a good faith application of Peters is required, I concur in the majority
opinion to affirm.



                                                             /s/ Christopher M. Murray




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