Lawyers’ Corner: Sidewalk Defects in Bernardoni v Saginaw

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The case against a city for a defective street or sidewalk just got harder. Governmental immunity already prevents a vast majority of lawsuits against municipalities except where the highway exception applies. Now a recent Michigan Supreme Court decision has made proving sidewalk defects in particular, even harder.

When a government entity is a defendant in your pedestrian accident lawsuit, you know you have a battle ahead. Governmental immunity can make it hard to get recovery for your client even the most blatant state negligence. Now a recent Michigan Supreme Court decision has raised the bar even higher.

In the Bernadardoni v City of Saginaw, Sue Bernardoni tripped over a 2.5 inch gap in a sidewalk, causing serious injury. She sued the City of Saginaw for failing to maintain the sidewalk in reasonable repair. The city filed a motion for summary disposition asserting its governmental immunity.

Governmental Immunity and Sidewalk Defects

MCL 691.1402 creates a highway exception to the general rule that a government agency cannot be sued for negligence in the discharge of its duties. Under the Highway exception, a city can be sued for its failure to keep highways, including sidewalks, “in reasonable repair and in a condition reasonably safe and fit for travel.” MCL 691.1402(1).

When it comes to sidewalk defects, an injured pedestrian has to prove that the city knew or should have known of the defect in the walkway for at least 30 days before the accident happened. Often, this is “conclusively presumed” when a plaintiff demonstrates that the defect was “readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.” MCL 691.1403.

Proving Sidewalk Defects

MCR 2.116(C)(10) allows for summary disposition when the facts don’t create a question of material fact for the jury to decide. In response to the city’s motion, Bernardoni presented photographs taken 30 days after her injury, demonstrating the discontinuity between the two slabs of sidewalk.

The Court of appeals had reasoned that:

“[I]n consideration of the high unlikeliness that sidewalk[] slabs could shift, wear, and accumulate debris with great rapidity, reasonable minds could differ as to whether the condition would have been present and readily apparent for at least 30 days before the injury.”

But the Michigan Supreme Court called this mere speculation, “relying on the assumption that the debris, and thus the defect itself, could not have arisen in less than 60 days.”

The court noted that Bernardoni offered no evidence to support the Court of Appeals’ assumption. It specifically noted that the plaintiff could have offered expert testimony as to how this kind of sidewalk discontinuity usually forms or enlarges over time. But she didn’t. The court said:

“Instead, plaintiff’s attempt to prove the sidewalk’s past condition simply by proving its current condition fails, as more is needed to explain why the current condition is probative of the past condition.”

The court held that photos taken 30 days after the injury cannot alone create a genuine issue of material fact as to whether the condition existed 30 days before the injury. In other words, the court held that no jury could reasonably conclude that the sidewalk defect arose at least 60 days before the photographs were taken. Because there was no other evidence presented, the city’s governmental immunity motion succeeded and Bernardoni was cut off from any recovery for her injuries.

Representing Pedestrians After Bernardoni

With this decision, the Michigan Supreme Court has made it harder for pedestrian accident victims to be compensated for the neglect of our cities. As our state’s infrastructure degrades, the risk of serious injury from defective highways and sidewalks is increasing. Bringing these claims will now be more costly for injured pedestrians.

Few people take pictures of sidewalks or roadways on a regular basis. By requiring proof of a problem before the injury ever happened, the court has sent plaintiff’s attorneys on a scavenger hunt through publicly accessible photos and city complaints. In an absence of documentation, plaintiffs will need to rely on the testimony of experts to meet their burden of proof.

Where injuries are less severe, and damage claims more limited the need for expert testimony to establish the constructive presumption of negligence may sometimes be cost prohibitive. By requiring such extensive evidence to even bring a case before a jury, the Michigan Supreme Court has implicitly strengthened governmental immunity and made it harder for cities to be held responsible for their failure to act.

David Christensen is a pedestrian accident attorney at Christensen Law in Southfield, Michigan. He represents pedestrians against cities, negligent drivers, and insurance companies to ensure their injuries are covered. If your client is facing a difficult pedestrian injury claim, contact Christensen Law today for a referral.