Defense arrogance on display; summary disposition denied in Pontiac case where distance estimate is off
Terry Robertson sued the City of Pontiac after he fell while jogging on a City sidewalk. Within 60 days of the fall, he documented a five-inch heave in the sidewalk "directly in front of 236 Cherokee Road." He also provided pictures of the defect. While he did not see the vertical defect when he fell, he testified that felt a "hole" underfoot that tripped him and that he confirmed the defect by touch when he crawled back to it after falling.
When he was deposed during the suit, Robertson estimated that the heave in the sidewalk was about 100 yards from Voorheis Street. The attorneys for the City then measured the distance to the heave and found that it was 200 hundred yards from the cross-street, as reported in Robertson's notice. The attorneys then asked the Court to summarily dismiss Robertson's claim. They argued that his notice was defective because his testimony contradicted the location of the defect described in the notice.
Robertson filed an affidavit attesting to the fact that his estimate was in error and that the distance was, in fact, approximately 200 yards from Voorheis Street. The City argued that he should not be allowed to file an affidavit that clarified his distance estimate. The City also argued that his testimony wasn't adequate to prove that the vertical heave "caused" his fall, because he couldn't confirm seeing his foot strike it.
The trial judge rejected (and probably laughed off) these arguments, and incredibly, the City's attorneys appealed. Injury and insurance defense counsel have become so emboldened by their success before Michigan's Republican majority on the appeals' courts that they expect success on even the most absurd and unfair claims.
This time, on appeal, the three Appeals Court judges summarily rejected the City's arguments. They noted that Robertson's Notice of Injury was appropriate and compliant and that his testimonial "estimate" of distance did not invalidate the carefully drafted notice. They also noted that his affidavit explaining his error in distance estimation was not subject to the rule that would prevent a party from contradicting deposition testimony with a subsequent affidavit.