COA 376470 JOHN GONZALES V CITY OF DETROIT Opinion - Per Curiam - Unpublished 9/8/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
JOHN GONZALES,
Plaintiff-Appellee,
UNPUBLISHED
September 08, 2026
11:56 AM
v No. 376470
Wayne Circuit Court
CITY OF DETROIT, LC No. 24-002016-NO
Defendant-Appellant.
Before: M. J. KELLY, P.J., and O’BRIEN and LIEVENSE, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court’s order denying defendant’s motion for
summary disposition. On appeal, defendant argues the trial court erred when it denied defendant’s
motion because plaintiff’s notice of injury failed to meet the requirements of MCL 691.1404(1)
when the notice did not sufficiently state the nature of the defect or the names of the known
witnesses. We affirm.
I. FACTUAL BACKGROUND
This case arises from a fall sustained by plaintiff while walking on a sidewalk along Bagley
Street in Detroit on March 1, 2023. Plaintiff was walking home from a gas station after visiting
his friend, Jesse Martinez. At approximately 6:30 p.m., while in the dark, plaintiff tripped over a
“defective sidewalk” and fell. He shattered his kneecap and, while attempting to stand, fell again,
which fractured his hip. Plaintiff stated that he had walked along that part of the sidewalk before
but was unaware of the extent of the defect because he usually walked on the other side of the
street. The “defect,” according to plaintiff, was the result of a tree growing in the verge—the area
between the sidewalk and street—that had fallen “a long time ago.” When the tree fell, the roots
under the sidewalk made the sidewalk “buckle,” causing one side of the paving stone to rise higher
than the other.
There was nobody in the area when plaintiff fell. When he was unable to stand, he began
to scream and cry for help. He telephoned a friend, “Junior,” to come and help him. Junior arrived
shortly thereafter. Then Martinez’s sister arrived, responding to plaintiff’s cries for help. She

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recruited Martinez to assist plaintiff. Finally, a neighbor enlisted by Martinez helped move
plaintiff into a car. Plaintiff was taken to the hospital.
On March 21, 2023, plaintiff sent defendant a notice of injury letter stating the following:
PLEASE TAKE NOTICE that, pursuant to the provisions of MCL
691.1404(1) notice is given to you that John Gonzales suffered personal injuries as
a result of a defect in the sidewalk under your care and control on March 2, 2023.
The incident occurred on Bagley St near West Grand Blvd. The injury occurred
when the claimant was walking when he tripped and fell on the defective sidewalk.
As a result of the accident, the claimant suffered injuries of the following nature:
fractured left hip and shattered left knee. The coordinates for the exact location are
42.321546, -83.089438. The attached images identify the exact location and defect
with a red circle as the exact location and defect that caused Claimant to trip and
fall, resulting in serious injuries. There are no known witnesses at this time.
[Emphasis added.]
Defendant received the notice on March 24. The date of plaintiff’s injuries in plaintiff’s
notice (March 2, 2023) differs from the complaint (March 1, 2023). Included with the notice were
two Google map images, including one satellite view and one street view. The images were dated
six months before the incident and indicate the address as “3844 Bagley St,” and “Bagley St & W
Grand Blvd.” The images show an empty lot with a sidewalk and grass road verge separating it
from Bagley Street. In both images, there is blue circle and a smaller red circle over an area of
sidewalk covering roughly two paving stones. The circled pavers are visibly a “cleaner” or
“brighter” gray from those immediately adjacent to them, and there is a shaded area on the road
verge directly next to them, presumably showing the tree stump.
On February 9, 2024, plaintiff filed a complaint against defendant in which he alleged
counts of breach of statutory duty, premises liability, and gross negligence. Post-discovery,
defendant moved for summary disposition, arguing that plaintiff’s presuit notice was deficient
because it did not sufficiently describe the nature of the defect or the known witnesses plaintiff
later disclosed during his deposition. The trial court denied defendant’s motion, holding that the
description of the defect in plaintiff’s notice was sufficient, and plaintiff was not obligated to
identify witnesses in the notice because none saw his fall. This appeal followed.
II. APPLICABLE LAW
Defendant argues on appeal that the trial court should have granted its motion for summary
disposition because plaintiff failed to meet the statutory requirements of MCL 691.1404(1) by not
specifying the nature of the defect and not naming known witnesses. Defendant also argues that
plaintiff’s mistake as to the date of his fall added to the deficiency. We disagree.
A. STANDARD OF REVIEW
Defendant moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10).
The trial court did not specify in its oral opinion or accompanying order under which subrule it
denied defendant’s motion. When the trial court fails to specify the subsection of rule under which

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it granted summary disposition, this Court assumes that summary disposition was granted under
the subsection cited in the party’s motion, and on which the movant’s argument was based. Village
of Dimondale v Grable, 240 Mich App 553, 564; 618 NW2d 23 (2000). The basis of defendant’s
motion was governmental immunity under (C)(7), which was based on its claim that plaintiff’s
notice of injury was legally insufficient. Therefore, review under this subrule is appropriate. This
Court reviews de novo the trial court’s decision on a motion for summary disposition. El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019).
“Summary disposition under MCR 2.116(C)(7) is appropriate if a claim is barred because
of immunity granted by law.” Pike v Northern Mich Univ, 327 Mich App 683, 690; 935 NW2d
86 (2019).
When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-
pleaded factual allegations as true and construe them in favor of the plaintiff, unless
other evidence contradicts them. If any affidavits, depositions, admissions, or other
documentary evidence are submitted, the court must consider them to determine
whether there is a genuine issue of material fact. If no facts are in dispute, and if
reasonable minds could not differ regarding the legal effect of those facts, the
question whether the claim is barred is an issue of law for the court. [I]f a question
of fact exists to the extent that factual development could provide a basis for
recovery, dismissal is inappropriate. [Yoches v City of Dearborn, 320 Mich App
461, 469; 904 NW2d 887 (2017) (quotation marks and citation omitted).]
We review de novo questions of government immunity, Petersen Fin LLC v Kentwood, 326 Mich
App 433, 441; 928 NW2d 245 (2018), and statutory interpretation, City of Grand Rapids v
Brookstone Capital, LLC, 334 Mich App 452, 457; 965 NW2d 232 (2020).
B. THE HIGHWAY EXCEPTION AND NOTICE UNDER MCL 691.1404
“The governmental tort liability act, MCL 691.1401 et seq., provides broad immunity from
tort liability to governmental agencies whenever they are engaged in the exercise or discharge of
a governmental function[.]” Milot v Dep’t of Transp, 318 Mich App 272, 276; 897 NW2d 248
(2016) (quotation marks and citations omitted). There are, however, some narrowly drawn
exceptions to governmental immunity, including the highway exception. MCL 691.1402(1). This
exception provides that, “[a] person who sustains bodily injury or damage to his or her property
by reason of failure of a governmental agency to keep a highway under its jurisdiction in
reasonable repair and in a condition reasonably safe and fit for travel may recover the damages
suffered by him or her from the governmental agency.” Madbak v City of Farmington Hills, 349
Mich App 561, 568; 28 NW3d 809 (2023) (quotation marks and citations omitted).
However, “[a] claimant seeking recovery under the highway exception must comply with
the notice requirements of MCL 691.1404 . . . . ” Wigfall v City of Detroit, 504 Mich 330, 337;
934 NW2d 760 (2019). In relevant part, MCL 691.1404(1) provides:
As a condition to any recovery for injuries sustained by reason of any
defective highway, the injured person, within 120 days from the time the injury
occurred, . . . shall serve a notice on the governmental agency of the occurrence of

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the injury and the defect. The notice shall specify the exact location and nature of
the defect, the injury sustained and the names of the witnesses known at the time
by the claimant.
Failure to comply with this notice provision bars claims filed under the highway exception
regardless of actual prejudice to the governmental agency. Rowland v Washtenaw Co Rd Comm,
477 Mich 197, 200; 731 NW2d 41 (2007).
Our Supreme Court “has established that ‘MCL 691.1404 is straightforward, clear,
unambiguous, and not constitutionally suspect’ and ‘must be enforced as written.’ ” Plunkett v
Dep’t of Transp, 286 Mich App 168, 176; 779 NW2d 263 (2009), quoting Rowland, 477 Mich
at 219. But “a notice of injury and defect will not be regarded as insufficient because of a failure
to comply literally with all the stated criteria. Substantial compliance will suffice.” Plunkett, 286
Mich App at 178 (quotation marks and citation omitted). “A plaintiff’s description of the nature
of the defect may be deemed to substantially comply with the statute when coupled with the
specific description of the location, time and nature of the injuries. Some degree of ambiguity in
an aspect of a particular notice may be remedied by the clarity of other aspects.” Madbak, 349
Mich App at 570, citing Plunkett, 286 Mich App at 176-177.
“Notice need not be provided in any particular form and is sufficient if it is timely and
contains the requisite information.” McLean v City of Dearborn, 302 Mich App 68, 74; 836 NW2d
916 (2013) (citation omitted). “The required information does not have to be contained within the
plaintiff’s initial notice; it is sufficient if a notice received by the governmental agency within the
120-day period contains the required elements.” Id. at 75. Information submitted more than 120
days after the injury occurs cannot be properly considered as part of the notice. Madbak, 349 Mich
App at 561; Thurman v City of Pontiac, 295 Mich App 381, 386; 819 NW2d 90 (2012).
III. ANALYSIS
A. KNOWN WITNESSES
Defendant first argues that plaintiff should have included Martinez, Martinez’s sister,
Junior, and the next-door neighbor in the notice as witnesses and, since he did not, plaintiff’s notice
given was ineffective under MCL 600.1404(1). We disagree.
The purpose of the notice required under the statute is “to provide the governmental agency
with the opportunity to investigate the claim while the evidentiary trial is still fresh and,
additionally, to remedy the defect before other persons are injured.” Milot, 318 Mich App at 277
(quotation marks and citation omitted). “If the plaintiff does not include the name of a known
witness in the notice, the plaintiff’s notice is defective, and the trial court should grant summary
disposition in favor of the governmental agency.” Id. (citation omitted). Because, however, the
statute refers to “those who witnessed ‘the occurrence of the injury and the defect,’ ” a plaintiff is
only required to “list on his or her notice of intent the names of those witnesses who have pertinent
information about the accident itself, not all witnesses who have knowledge of the subsequently
revealed extent of the plaintiff’s injuries.” Id. at 278, quoting MCL 691.1404. Specifically, “under
MCL 691.1404(1), ‘the names of the witnesses’ are the names of those persons who witnessed the
occurrence.” Milot, 318 Mich App at 279-280.

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Defendant argues that plaintiff was required to include the names of Junior, Martinez,
Martinez’s sister, and Martinez’s neighbor because they personally observed the sidewalk
conditions when plaintiff fell and assisted him afterwards. But it is undisputed that none of these
witnesses saw plaintiff fall or become injured. In his deposition, plaintiff testified that nobody
was in the area when he fell two times on the sidewalk near Bagley Street. The record indicates
that, since nobody was around, plaintiff called his friend Junior and cried out for help, which
prompted other people to come outside and assist him. Plaintiff stated that he laid near the
sidewalk for approximately five minutes before Junior arrived first to aid him. Plaintiff’s notice
did not violate MCL 691.1404(1) in this context.
Defendant principally relies on Madbak, but that case is distinguishable. There, the
plaintiff was walking with her son, fell and injured herself, and her notice did not mention her son,
despite him being with plaintiff when she fell. Madbak, 349 Mich App at 574-575. Madbak relied
on this and other deficiencies in holding that the plaintiff’s notice did not comply with the statute.
Here, none of the other individuals were present when plaintiff fell, and they all arrived later.
Because none of the witnesses subsequently identified by defendant observed the occurrence of
plaintiff’s injuries, MCL 691.1404(1) did not require him to identify them in his notice of injury.
Milot, 318 Mich App at 280.
B. EXACT NATURE OF THE DEFECT
Defendant next argues that plaintiff’s notice failed to specify the exact nature of the defect
because he described the sidewalk in question as “the defective sidewalk” without further
elaboration. It argues further that the photographs attached to his notice did not show an
identifiable defect and, therefore, the notice did not substantially comply with MCL 691.1404(1)’s
requirements. Again, we disagree.
MCL 691.1404(1) requires notice of both the “exact location” and “nature of the defect.”
While separate, the two requirements are related, as “[a] plaintiff’s description of the nature of the
defect may be deemed to substantially comply with the statute when coupled with the specific
description of the location, time and nature of the injuries.” Madbak, 349 Mich App at 570; see
also Milot, 318 Mich App at 277 (noting that, given the statute’s purpose of giving the government
entity an opportunity to investigate the defect, the location and nature of the defect are intertwined).
We have previously held that a plaintiff’s notice “merely providing the intersection where the
defect was located was insufficient as a matter of law because it did not specify at which of the
four corners of the intersection the alleged defect was located.” Thurman, 295 Mich App at 386,
citing Dempsey v City of Detroit, 4 Mich App 150, 151-152; 144 NW2d 684 (1968). Likewise,
we have held that a plaintiff’s notice that describes the “ ‘defective road’ as ‘Near Intersection of
Wilton Court and Wilton Drive, Farmington Hills MI,’ standing alone, was not sufficiently specific
to comply with MCL 691.1404(1) because it merely described a general area.” Madbak, 349 Mich
App at 571.
Here, plaintiff’s notice was sufficient to provide notice to defendant regarding the nature
of the defect that caused him injury, particularly given the specificity plaintiff provided as to the
location. Although plaintiff did not use words like “buckled” or “uneven” in his notice, the phrase
“defective sidewalk” that caused him to “trip and fall” along with the circled area of sidewalk in
the Google map images brought to defendant’s attention that there was an issue with the sidewalk

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at this precise location. “Any deficiency in the written description is therefore remedied by the
inclusion of the photographs.” McLean, 302 Mich App at 76, citing Plunkett, 286 Mich App
at 178-179. Moreover, plaintiff’s notice provided geographic coordinates (i.e., “42.321546, -
83.089438”) for the exact location of the sidewalk along with the address “3844 Bagley St” to
provide notice of the location and defect. The cases defendant cites lack the same specificity.
Accordingly, we disagree with defendant’s argument that plaintiff’s notice did not describe the
exact nature of the defect as required by the statute.
C. THE DATE OF THE INCIDENT
Lastly, defendant contends that a one-day discrepancy as to the date of the incident
prevented a “timely and accurate opportunity to investigate” the alleged defect, and means the
notice violates the statute. Although plaintiff’s notice said that he was injured on March 2, 2023,
he testified at his deposition and alleged in the complaint that he was injured on March 1, 2023.
Plaintiff stated further that including March 2 was “wrong” and it “was supposed to be March the
1st.”
The statute, however, does not require claimants to provide the date of injury in the notice,
it only requires plaintiffs to provide notice within 120 days of injury. Moreover, while plaintiff
had up to 120 days to submit his notice, he provided it about three weeks after the date of the fall,
meaning defendant had more advanced notice of the alleged defect to investigate than required.
Plaintiff also explained that the date discrepancy was a simple mistake; he testified that he was
admitted to the hospital late at night, was discharged the next day (March 2), and did not obtain
the medical records until after serving the notice.
Plaintiff’s notice was “understandable and sufficient to bring the important facts” to
defendant’s attention. Madbak, 349 Mich App at 580, citing Plunkett, 286 Mich App at 176. We
therefore disagree with defendant that plaintiff’s notice failed to comply with MCL 691.1404(1),
and the trial court properly denied defendant’s motion for summary disposition.
Affirmed.
/s/ Michael J. Kelly
/s/ Colleen A. O’Brien
/s/ Andrew J. Lievense

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