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Motorcyclists can sue Road Commision for failing to fix pothole; notice incorporating police report is not defective

Arthur Whitmore and Elaine Whitmore sued the Charlevoix County Road Commision after they were injured when their motorcycle struck a large pothole on Advance Road.  The Road Commission argued that the Whitmores' claim should be dismissed because the notice they filed pursuant to statute incorporated the police report to describe the location of the pothole.  It also argued that the Whitmores failed to allege that the Road Commision had notice of the particular pothole. 

The Court of Appeals ruled that the statutorily-required notice may make reference to an attached document to verify details such as the location of the road defect; it also concluded that the Plaintiffs adequately alleged that the Road Commision had notice of this particular defect and had even alleged that the Road Commmission had attempted to repair the pothole prior to their injury.

The Whitmores had filed a cross-appeal, arguing that the Court erred in dismissing their claims that the road should have been closed, or warning should have been provided to motorists of the deteriorated condition of the road.  The Court of Appeals noted that in previous decisions [by the so-called Engler Majority] the Supreme Court has limited the duty of the Road Commission to maintaining the road bed; it cannot be held responsible for negligence in managing or designing the road, or in erecting signage or controlling traffic.

Thompson O’Neil, P.C.
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