Slip & fall; Governmental immunity; Beals v. Michigan; The Governmental Tort Liability Act (MCL 691.1401 et seq.); MCL 691.1407; Nawrocki v. Macomb Cnty. Rd. Comm’n; Goodhue v. Department of Transp.; The highway exception; MCL 691.1401(c); MCL 691.1402(1); Duty to maintain sidewalks; MCL 691.1402a; Distinguishing Bernardoni v. Saginaw; Expert testimony; MCR 2.116(G)(5); Dextrom v. Wexford Cnty.; Whether the notice of injury & defect conformed to MCL 691.1404(1); Milot v. Department of Transp.; Russell v. City of Detroit

The court held that defendant-city was not entitled to summary disposition on the basis of governmental immunity or deficiencies in the notice of injury and defect. Defendant argued that the highway exception did “not apply because plaintiff failed to provide evidence that defendant knew, or should have known, that the defect in the sidewalk existed at least 30 days before plaintiff’s injury occurred, in accordance with MCL 691.1402a(2).” Defendant relied on Bernardoni. However, this case was distinguishable from Bernardoni “because plaintiff submitted photographs and additional evidence demonstrating that the defect existed at least 30 days before plaintiff was injured.” In addition to the photos, plaintiff presented an affidavit from F, who opined that the sidewalk and curb “existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before March 2, 2016.” F’s opinion was on the basis of his “experience as a construction worker for a family business, which focused primarily on ‘commercial and residential cement work including sidewalks, driveways and roads.’” When paired with the photos, F’s affidavit suggested “that the deteriorated condition of the sidewalk would have existed more than 30 days before plaintiff was injured. Thus, plaintiff presented sufficient evidence to support his argument.” Nevertheless, defendant asserted that the trial court should not have considered F’s affidavit because it constituted inadmissible expert testimony. Defendant directed the court to MRE 702, and argued that F’s “affidavit was inadmissible because it contained no facts, data, or information regarding the methods that [F] used to draw his conclusions regarding the condition of the sidewalk. However, under MCR 2.116(G)(5), the content of an affidavit need only be admissible in substance, not in form.” Also, an “expert witness’s qualifications and descriptions of his or her methodology do not need to be incorporated into an affidavit that is submitted in response to a motion for summary disposition.” Further, whether F “will ultimately meet the MRE 702 requirements to be sworn as a witness is a matter reserved for trial.” The trial court did not err by considering F’s “affidavit when ruling on defendant’s renewed motion for summary disposition. Under these circumstances, plaintiff presented proof that defendant knew or should have known about the condition of the sidewalk at least 30 days before plaintiff’s injury.” Affirmed.