Kozak v. City of Lincoln Park
Docket No. 152514
Trial Lawyers’ Bottom Line: Photos and affidavit of road’s history survive summary disposition for highway exception case. And conclusory affidavits are insufficient to support motion for summary disposition.
This was merely a memorandum opinion, meaning no oral argument and the decision was unanimous.
Kozak sued the City of Lincoln Park after she fell on a slab of cement raised three inches above the normal level of pavement. The City of Lincoln Park supported its motion for summary disposition with only the affidavit of its Director of Public Services that opined the highway was not unsafe. Kozak countered with photos of the pavement, an affidavit from a resident stating the road had been in that condition for years, and excerpts from Kozak’s deposition describing her fall. Despite all of this, the trial court still granted Lincoln Park’s motion for summary disposition, and the Court of Appeals affirmed.
The Court weighed the Kozak’s evidence alongside the Lincoln Park’s conclusory affidavit—considering them together, no in isolation. The Court stated, “An affidavit that contains mere conclusory statements is insufficient to support a motion for summary disposition.” The unanimous Court found that Kozak provided sufficient evidence of a highway defect such that reasonable jurors could conclude that the highway was not in a state of reasonable repair for purposes of the highway exception to governmental immunity (MCL 691.1402(1).
This was an easy case, but it will not be the last highway exception for the Court this term.