The Michigan Court of Appeals recently upheld a lower court’s grant of summary disposition to a defendant township when a plaintiff injured on a sidewalk could not show that the township had sufficient notice of the defect.In October 2011, plaintiff Lisa Jacques fell on a raised portion of sidewalk in Macomb Township. She filed suit against the township two years later in 2013. She alleged that Macomb was negligent for failing to maintain the sidewalk in reasonable repair, in accordance with Michigan’s Governmental Tort Liability Act (GTLA).
In November 2014, Macomb moved for summary disposition, arguing that it was entitled to governmental immunity because the plaintiff failed to show that it had notice of any sidewalk defect, as required under the statute. It further argued that a rebuttable statutory inference exists when the discontinuity defect is less than two inches. In response, Jacques admitted that the discontinuity defect was less than two inches, but she argued that the expert’s affidavit, the defendant’s deposition testimony, and photographic evidence adequately rebutted the statutory inference. She further asserted that the defendant had constructive notice of the sidewalk defect, based on the opinion that the defect existed for 30 days prior to her fall. Following a hearing, the court granted the defendant’s motion for summary disposition and dismissed the plaintiff’s complaint. The court reasoned that the expert’s opinions were unreliable and that the plaintiff failed to show that the defendant had the required statutory notice.
The Michigan Court of Appeals concluded that even if there was a question of material fact regarding the sidewalk’s discontinuity defect, the trial court’s grant of summary disposition was nonetheless correct, due to the lack of evidence on notice.
The court rejected Jacques’ argument that she provided sufficient evidence to impute constructive notice of the defect. The GTLA requires that the governmental agency be aware that the defect unreasonably endangers public travel. The Michigan Supreme Court has held that an “imperfection in the roadway will only rise to the level of a compensable ‘defect’ when that imperfection is one which renders the highway not reasonably safe and convenient for public travel, and the government agency is on notice of that fact.” The state high court also has held that the Michigan legislature has indicated that knowledge and time enough to repair are conclusively presumed when the defect has been readily apparent to an ordinary observer for 30 days or longer. The appeals court explained that Jacques could only prevail if she presented evidence that the defendant would have understood that the defect posed an unreasonable threat to public travel and would have addressed it.
Constructive notice is established by showing that the governmental agency should have discovered the defect in exercising reasonable diligence. The plaintiff argued that here, reasonable diligence required the township to operate a sidewalk maintenance program. She contended that such a program would have made the defendant aware of the sidewalk’s condition and the need to repair it. The appeals court noted, however, that Macomb’s building official measured and observed the sidewalk two months after the plaintiff’s fall and concluded that it was not in need of repair. For this reason, the plaintiff could not prove that once the defendant was aware of this condition, it would have understood it posed an unreasonable threat to public safety and addressed it.
The plaintiff also argued that the defendant should have known of the defect due to how long it existed. The appeals court again disagreed. The expert’s affidavit opined that the defect existed 30 days prior to the accident and formed due to either vehicle travel or Michigan’s freeze and thaw cycles. Either way, the expert concluded that the defect did not occur overnight but instead occurred over a period of years.
While the freeze and thaw cycle is a concept of which judicial notice may be taken, the court explained, the expert offered no data or scientific evidence to support this opinion. Moreover, the expert’s affidavit did not address whether the defect was readily apparent to an ordinary observer, as is required under the GTLA. In fact, Jacques testified to the contrary that the defect was not observable to her because it was covered with grass and dirt. Thus, neither the expert’s opinion nor the plaintiff’s testimony supported a finding that the defendant had constructive notice of the defect.
For these reasons, the appeals court affirmed the lower court’s grant of summary disposition to Macomb Township.
Personal injury lawyer Kelly Neumann at the Neumann Law Group represents victims of accidents throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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