Trip & fall in a pothole; Governmental immunity; MCL 691.1407(1); Nawrocki v Macomb Cnty Rd Comm’n; The highway exception; MCL 691.1402; Principle that a party must plead in avoidance of governmental immunity; Mack v City of Detroit; Liability under the Recreational Land Use Act (RLUA); MCL 324.73301(1); Neal v Wilkes; Leave to amend; MCR 2.116(I)(5); PT Today, Inc v. Commissioner of Office of Fin & Ins Servs

The court held that the Court of Claims did not err by dismissing plaintiff’s claim on the basis of governmental immunity, or by denying her leave to amend, but did err by finding the RLUA did not apply to bar plaintiff’s negligence claim. Plaintiff sued defendants for injuries she sustained when she tripped and fell in a pothole on a road in a state park. The Court of Claims granted summary disposition for defendants and dismissed her claims for failing to plead in avoidance of governmental immunity. On appeal, the court found that plaintiff “did not expressly plead that she was bringing her claim under the highway exception,” and did not “state a claim that fit within a statutory exception” to governmental immunity. Thus, she “failed to satisfy her burden of pleading in avoidance of governmental immunity because she did not plead that the defect in the roadway that caused her injury was in the portion of an improved highway that was designed for vehicular travel.” The court agreed with defendants that the Court of Claims erred by finding the RLUA did not apply because the injury took place on public land. She “did not pay defendants for the use of the campsite,” she “was on defendants’ land for the purpose of camping,” and she “did not pay the owner of the land on which her claim arose.” In addition, she did not allege her injury “was caused by defendants’ gross negligence or willful and wanton misconduct.” As such, her claim was “barred by the plain language of the RLUA. It is immaterial to this analysis that another individual paid defendants to allow plaintiff to camp on its land.” Finally, the court rejected her argument that the trial court erred when it rejected her request for leave to amend her complaint. “The motion was not filed until the case had already been dismissed, and after the time for filing a motion for reconsideration of that dismissal had also already expired. To the extent that the trial court denied plaintiff’s post-dismissal motions as untimely, and did not specifically state that the motion for leave to amend was the product of undue delay, that error was one of semantics and does not amount to an abuse of discretion resulting in an injustice.” Affirmed.