Injury caused by driving a motorized “minibike” into a pothole; Governmental Tort Lability Act (MCL 691.1401 et seq.); The highway exception to governmental immunity; MCL 691.1402(1); “Highway” defined; MCL 691.1401(c); Whether plaintiff’s notice of his intent to sue was insufficient for failing to include the name of a stranger as a known witness; MCL 691.1404; Burise v. City of Pontiac; MCL 691.1404(1); Hussy v. City of Muskegon Heights; “Witness”; Rule v. Bay City

Holding that the plaintiff’s notice of his intent to sue was not insufficient for failing to include the name of a stranger as a known witness, the court affirmed the trial court’s order denying the defendant-city’s motion for summary disposition. Plaintiff was injured when he drove a motorized “minibike” into a pothole, causing him to summersault over the handlebars. Defendant contended that plaintiff’s notice was deficient in failing to provide the name of a known witness—the stranger. “In order for a person to be a known witness, the person first must be known to plaintiff, meaning that the plaintiff was aware of the witness.” Plaintiff was aware of the stranger. The stranger assisted him after he fell off his minibike, lent his cell phone, and even discussed the problematic potholes with plaintiff. Thus, there was no genuine issue of material fact as to whether the stranger was known to plaintiff. Although no genuine issue of material fact existed as to “whether the stranger was known to plaintiff, the stranger must have also been a witness. While the word ‘witness’ is not defined by statute,” plaintiff relied upon Rule as dispositive in determining whether the stranger was a witness for purposes of the notice requirements. The “necessary implication of Rule is that to be considered a witness for purposes of MCL 691.1404, the person must have seen (1) the accident and (2) what caused the accident.” The existing record revealed that the stranger did not see the accident. “Plaintiff testified that the stranger did not see him encounter the pothole and summersault over the minibike’s handlebars because the stranger was ‘doing something in his yard or in his driveway’ and ‘wasn’t watching the road and witness[ing] [plaintiff].’” While the evidence indicated that the stranger assisted plaintiff after the accident, nothing in the record indicated that the stranger actually saw the accident. Thus, under Rule, the stranger was not a witness, and plaintiff was not required to name the stranger in his notice.