The Michigan Supreme Court recently reversed a lower court’s grant of summary disposition for a defendant city following a plaintiff’s fall on a poorly maintained public highway.
Plaintiff Barbara Kozak was allegedly injured while traversing a public highway in Lincoln Park when she tripped over an elevation differential between the two slabs of concrete in the center of the street. Kozak sued the city of Lincoln Park pursuant to the “highway exception” to the governmental tort liability act (GTLA), alleging that the defendant failed to maintain the highway in reasonable repair so that it was reasonably safe and convenient for public travel.
The defendant moved for summary disposition, alleging governmental immunity and no genuine issue of material fact. The trial court granted the motion, and the court of appeals affirmed, concluding that Kozak did not provide sufficient evidence to contradict the defendant’s claims that the road was reasonably safe for public travel.
On review, the Michigan Supreme Court first explained that the GTLA affords broad immunity from tort liability to governmental agencies when they are engaged in the discharge of governmental functions. The GTLA, however, provides several exceptions to this rule. The “highway exception,” on which Kozak relied, provides that each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. The exception encompasses injuries to pedestrians.
To support its motion for summary disposition, the defendant only submitted the affidavit of Robert Bartok, the city’s Director of Public Services. Bartok opined that the height differential did not render the highway unsafe or inconvenient for public travel and that the highway was in fact reasonably safe and convenient for public travel. Kozak countered by submitting various forms of documentary evidence, including photographs of the height differential, an affidavit from a local resident who stated that the roadway had been in that condition for the past six years, and excerpts from Barbara’s deposition describing her fall. The defendant admitted that no maintenance, paving, or repaving had been done to the area of the highway prior to the alleged date of the fall.
The Michigan Supreme Court concluded that the defendant’s “conclusory affidavit,” coupled with the evidence submitted by Kozak, created a genuine issue of material fact giving rise to a reasonable inference that the highway was not in reasonable repair. Specifically, the court reasoned that the photographic proof of the significant gap of elevation between the slabs of pavement could lead a reasonable juror to conclude that the highway was not in a state of reasonable repair.
Meanwhile, the only evidence submitted by the defendant was Bartok’s affidavit, which merely articulated his opinion that the condition did not render the highway unsafe or inconvenient for public travel. An affidavit that contains mere conclusory statements, the state high court explained, is insufficient to support a motion for summary disposition. Consequently, the court concluded that the trial court should have denied the defendant’s motion for summary disposition, and the court of appeals erred in concluding otherwise. The court therefore reversed and remanded.
Premises liability lawyer Kelly Neumann at the Neumann Law Group represents victims of accidents throughout Michigan from offices in Traverse City and Grand Rapids. Claims based on careless actions by governmental agencies tend to be particularly complex, so it is important to seek legal guidance without delay if you are considering suing the government. Call us at (231) 463-0122 or at (616) 717-5666 to set up a free consultation.
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