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Lawyers’ Corner: Sidewalk Exception in Paton v Detroit

A sidewalk and a highway are not the same thing when it comes to governmental immunity. Knowing the difference, and which one applies to your client’s case may save you from a summary disposition on the sidewalk exception. 

Pedestrian injury accidents don’t always involve a car. Sometimes, defects in the sidewalk itself can cause your client serious injury. Getting compensation for that injury can be difficult, though. Much of it depends on your ability to meet the requirements of the sidewalk exception to governmental immunity.

A recent Michigan Court of Appeals decision, Paton v City of Detroit, draws a distinction between the highway exception and the sidewalk exception to governmental immunity. Based on this distinction, your client’s sidewalk injury case could be dismissed unless you meet the standards of that particularly exacting statute.

Tearria Paton was walking on Beaubien Street, near Macomb, in Detroit, when she tripped over a sheered off metal pole. The stump of the sign post was protruding up from the sidewalk, where it was cemented in. As a result of her fault, Paton suffered a gash in her leg that required 12 stitches and a tetanus shot. She and her trial lawyers sued the City of Detroit under the highway exception to governmental immunity.

Sidewalk Exception v Highway Exception

The court took issue with that classification. It distinguished between the highway exception in MCL 691.1402 and the sidewalk exception in MCL 691.1402a. It noted that 2 years before Paton’s injury, the law changed, requiring plaintiffs to meet new requirements when it came to sidewalk injuries. MCL 691.1402a states:

(1) A municipal corporation in which a sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the sidewalk in reasonable repair.

(2) A municipal corporation is not liable for breach of a duty to maintain a sidewalk unless the plaintiff proves that at least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of the defect in the sidewalk.

(3) In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk in reasonable repair. This presumption may only be rebutted by evidence of facts showing that a proximate cause of the injury was 1 or both of the following:

(a) A vertical discontinuity defect of 2 inches or more in the sidewalk.

(b) A dangerous condition in the sidewalk itself of a particular character other than solely a vertical discontinuity.

(4) Whether a presumption under subsection (3) has been rebutted is a question of law for the court.

(5) A municipal corporation’s liability under subsection (1) is limited by section 81131 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.81131.

 

The court noted that at the same time, the legislature amended the highway exception statute to say that the government’s duty to maintain highways in reasonable repair does not extend to sidewalks, except as described in the sidewalk exception statute. Because the city was a “municipal corporation” and the sidewalk was adjacent to a road, the court said the plaintiff needed to meet the standards for sidewalks, not highways.

Highway Exception Notice Requirement Applies

Even though the sidewalk exception statute dictated whether governmental immunity applied, the highway exception’s notice requirements still applied as well. MCL 691.1404(1) requires:

“As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.”

This applies to any accident resulting on a “highway” which MCL 691.1401(c) defines as:

“[A] public highway, road, or street that is open for public travel. Highway includes a bridge, sidewalk, trailway, crosswalk, or culvert on the highway. Highway does not include an alley, tree, or utility pole.”

Since the definition of “highway” includes a sidewalk, the notice requirements apply regardless of whether the plaintiff is seeking recovery under the highway exception or the sidewalk exception.

That notice requires that within 120 days of the accident, an injured plaintiff to report to the city in question:

  • The exact location;
  • The nature of the defect;
  • The injury sustained; and
  • The names of witnesses known by the injured person.

Luckily for Ms. Paton, the notice she sent to the City of Detroit in June 2014, together with the complaint form she completed in July 2014, satisfied all of these requirements.

Representing Injured Pedestrians Under Paton

This opinion stands for one thing: that trial lawyers must read their statutes carefully. The plaintiff’s trial lawyers could have saved her much unnecessary difficulty and expense if they had properly brought the case under the sidewalk exception. While the court remanded the case to the trial court for further proceedings, it is likely that the trial lawyers will now have to file an amended complaint, and start the process of summary disposition over again, simply because they cited the wrong statute in the first instance. Being precise in your investigation and your pleadings is essential to a timely and successful resolution of any pedestrian accident case.

David Christensen is a pedestrian accident attorney at Christensen Law in Southfield, Michigan. He has represented injured pedestrians for over 25 years. If your client has been seriously injured because of a defective sidewalk, contact Christensen Law today for a referral.