In Utley v. Washtenaw County, unpublished opinion per curiam of the Court of Appeals decided April 24, 2012 (Docket No. 303572), the Court reinstated an injured motorcyclist’s case against the Washtenaw County Road Commission.
In this case, the Plaintiff and five of her friends were riding motorcycles on Zeeb Road in Lodi Township when plaintiff hit a pothole and was thrown to the ground and suffered serious injuries in a Michigan motorcycle accident. The pothole was located at the crest of a hill where the road transitions from pavement to gravel.
One of the riders testified that the hole was approximately six-inches deep and approximately two to three-feet wide. The other riders and the responding officer described the hole as “large” and “significant.”
Plaintiff filed suit against defendant Road Commission, alleging that the Road Commission was liable under the highway exception to governmental immunity, MCL 691.1402(1). The trial court granted the Road Commission’s Motion to Dismiss and the Plaintiff appealed.
The highway exception to governmental immunity allows a person to recover damages where a governmental agency having jurisdiction over a highway, fails to “maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” This could mean a bike accident caused by a pothole.
The law also requires that the agency either: (1) know of the existence of the defect; or (2) in the exercise of reasonable diligence should have known of the existence of the defect and had a reasonable time to repair it.
The trial court dismissed the case because the Road Commission argued that its employees had repaired the pothole three days before the crash and that an intervening rainfall had caused the pothole to reappear.
The Court of Appeals disagreed and reversed. Although a department worksheet purported to show that a road worker conducted some spot scraping on this gravel road three days prior to the accident, it did not demonstrate that this pothole had been repaired. The worker testified that he did not recall whether he scraped or otherwise repaired the pothole.
Furthermore, the Court found that the mere presence of such large a pothole less than three full days after the road was spotscraped supports a reasonable inference that the pothole was not repaired.
The Court found that the evidence was sufficient to create a question for the jury concerning whether the pothole amounted to a defect that a reasonable road commission would have understood “posed an unreasonable threat to safe public travel and would have addressed it.”