Governmental immunity; The highway exception (MCL 691.1402(1)); Knowledge of the defect; MCL 691.1403; Constructive knowledge; Distinguishing Davis v Kalamazoo (Unpub); Whether the roadway was reasonably safe for travel; Wilson v Alpena Cnty Rd Comm’n; The Governmental Tort Liability Act’s notice requirement; MCL 691.1404(1); Adequate notice of the pothole’s specific location; Plunkett v Department of Transp; Pavement surface evaluation & rating (PASER)

The court concluded there was a genuine issue of fact as to whether defendant-City of Ann Arbor had knowledge of the defect in question, and that a reasonable fact-finder could determine the area where the pothole was located “was not reasonably safe for public travel.” It also held that plaintiff-Christine Harris “substantially complied with the ‘exact location’ requirement” in MCL 691.1404(1). Thus, the court affirmed the trial court’s denial of Ann Arbor’s summary disposition motion. On 5/31/19, Harris was a passenger on a motorcycle when it hit a pothole and tipped sideways. She suffered severe injuries to her ankle and leg. Ann Arbor argued it did not have knowledge of the defect. It presented evidence “that its employees inspected the area, yet no repairs were made—suggesting no repairs were necessary.” But Harris presented evidence in response to the summary disposition motion that included a “PASER report, showing a progressive deterioration of the area around the pothole from [5/15/14 to 9/23/19]. She also attached her expert’s report indicating that ‘[r]ecords obtained from the City of Ann Arbor under FOIA prove that the City has know [sic] of the pothole, at least since 2014, and had it on their repair list for 7 years.’ This report noted ‘the hazard was known by the City of Ann Arbor, and only inadequate repair attempts were made, then recording the need for better repairs, and then letting it go for several more years.’” While Ann Arbor contended the court should reach the same conclusion here that it did in Davis, the court noted a distinct difference between the two cases – in addition to photos, the PASER report, and citizen complaints, Harris presented an expert’s opinion supporting her position. As to whether the roadway was reasonably safe for travel, while Ann Arbor’s evidence showed it might have been, “due to the pothole’s location and its shallowness, Christine’s evidence shows the opposite. That is, the nature of the intersection coupled with the deterioration of the roadway could pose a risk to public travel.” As to notice of the defect’s location, the notice Harris provided to Ann Arbor included a description of the area and what happened as well as “a Google map of the intersection where the accident occurred” and closeup photos of the pothole.