Governmental Tort Liability Act (MCL 691.1402 et seq.); MCL 691.1407(1); The highway exception; MCL 691.1402(1); MCL 691.1403; Notice of the defect; Wilson v. Alpena Cnty. Rd. Comm’n; Whether the sunken cold patch created a defect that rendered the highway not reasonably safe & convenient for public travel; Defect; Jones v. Detroit; Kozak v. City of Lincoln Park; Detroit Water & Sewage Department (DWSD)

Holding that a question of material fact remained as to notice and whether a defect rendered the affected portion of the highway “not reasonably safe and convenient for public travel,” the court concluded the trial court did not err by denying defendant-city’s motion for summary disposition. Plaintiff-Kimberly’s scooter hit the “sunken cold patch on Jefferson Ave, and she was thrown from the scooter and injured.” The city argued that plaintiffs failed to establish that it had actual or constructive notice of the sunken cold patch. The court agreed that plaintiffs failed to present any evidence that would indicate the city had actual notice. However, it held that plaintiffs did establish a question of fact as to whether the city had constructive notice of a defect that would render Jefferson Ave not reasonably safe and convenient for public travel. Thus, it concluded that the record was sufficient to create a question of fact as to whether the city “knew or should have known that the water main repair work was faulty, and resulted in a defect that made Jefferson Ave not reasonably safe or convenient for public travel.” The company that repaired the water main break and completed temporary pavement restoration “knew of its contractual responsibility to adequately compact the backfill materials as evidenced by the contract between" it and the city. The DWSD construction inspector “testified that such testing was not performed on this job.” Plaintiffs' expert’s report indicated “that if such testing had been performed, the settling would not have occurred, the cold patch would not have sunk, and Kimberly’s injuries would have been prevented.” Thus, the trial court did not err by determining that a question of fact remained as to whether the city had notice as required under MCL 691.1402(1). The city also argued that the trial court erred in determining that a question of fact remained as to “whether the sunken cold patch created a defect that rendered Jefferson Ave not reasonably safe and convenient for public travel.” The section of highway “where Kimberly was injured was not merely a ‘rough or uneven’ section of the road. A four-inch difference in elevation is significant.” As the Michigan Supreme Court announced in Kozak, “based on the ‘photographic proof of a significant gap of elevation between’ the roadway and the cold patch, ‘a reasonable jury could conclude that the highway was not in a state of reasonable repair so that it was reasonably safe and convenient for public travel.’” Thus, the court held that the trial court correctly found a question of material fact as to this issue remained. Affirmed.