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Case against City of Grand Rapids is dismissed, admittedly "elevating form over substance."

Judge Alton Davis wrote a concurring opinion to emphasize his dissatisfaction with the current state of the law, as applied in Maureen Ketchum v. City of Grand Rapids. Ketchum fell in a pothole while crossing the street in front of the Pearl Street entrance to the Amway Grand Plaza Hotel.  She suffered a serious ankle fracture, and would have the right to compensation from the City, if she could prove that the crosswalk was defective and the City had ample notice of the defect in time to fix it.  The case never got that far, however, because of a technicality that Davis found offensive.

When a person is injured due to a highway defect in Michigan, he or she is required to serve a formal notice of injury on the highway authority within 120 days.  The Notice must contain certain information.  In this case, Ketchum filed the notice, but failed to specify that she fell in a pothole.  That failure was more-or-less irrelevant, however, since Ketchum's neighbor had called the City to alert them to the fall and the City went out and fixed the pothole, even before it received Ketchum's written notice.

Until about 10 years ago, the Notice requirement was interpreted in a common sense manner:  the road authority could object only if it suffered prejudice as a result of a defect in the injury victim's notice.  The Engler Majority changed all that, however, ruling that a failure to meet the technical requirements of the Notice statute was fatal--even if the road authority was fully aware of the subject incident and admittedly suffered no prejudice.  Judge Davis noted that "such a result constitutes a triumph of form and technicality over substance."  We think that, as a result, it is also inconsistent with substantial justice.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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