Rare appelate win for a victim: MDOT denied summary disposition

Kipatrick Mrkva and his wife were biking near Michigan Avenue when they encountered a construction area where an MDOT contractor was renewing the asphalt.  MDOT argued that there were barricades in the area, but Mrkva's wife was adamant that there were no barricades or warning on their approach. Mr. Mrkva struck an area where "tack," a form of glue used to adhere multiple layers of asphalt, rendered the road unduly slipperty and admittedly hazardous.

Mrkva suffered serious injury and ultimately filed a lawsuit against MDOT, arguing that the road wasn't reasonably safe for public travel.  MDOT sought summary disposition arguing that the road was closed and that in any event it wasn't "defective."  The Court pointed out that the evidence of barricading the intersection cited by MDOT was for a date six days after the incident and not dispositive--particularly given Mrkva's wife's testimony.  It also ruled that if the road turns out to have been unbarricaded and "open for public use," the presence of an admittedly dangerous substance on the road bed could render it dangerous.  That is true, even if the substance has a legitimate role in maintenance and construction activities.