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Implications of the so-called "two-inch rule"

In Noe v. City of Detroit, an injured woman's slip and fall action was dismissed because her investigator took pictures which appeared to document that the defect where she fell was not 2 inches deep.   Road authorities are required to maintain pedestrian cross walks, however, if a defect is less than two inches in depth, a rebuttable presumption is created that the road is safe.

In response to the City's Motion to Dismiss, the victim presented an affidavit from the police officer who witnessed her fall, estimating that the defect was four inches deep, and the officer's official report documenting the officer's original description of the pavement discontinuity.  She also presented a report from an expert engineer.  The Court upheld the trial judge's ruling that this other evidence was not adequate to create a question of fact regarding the safety of the roadway and the alleged defect. 

Judge Whitbeck and the other two Appeals Judges summarily rejected Noe's claim that the width of a discontinuity can also be the objective measure under the statutory presumption, and held that the officer's estimate of the size of the defect was not "objective".  It further ruled that the officer's report describing the defect was not admissible as it was not "a matter as to which the officer was required to investigate and report".  On the basis of these legal findings, it excluded the officer's records and opinions.  The Court also held that the engineer was not qualified to offer an opinion about the size of the defect because he had not been to the scene to measure it and had relied upon the witnesses' deposition testimony and photographs.

In all, the decision, which is another unpublished per curiam, represents more tortured, activist logic and suggests once again that distasteful cases make bad law.  One suspects that the Judges are loath to make the City of Detroit compensate pedestrians for slip and fall pothole injuries as a matter of public policy, and felt compelled to stretch legal standards to achieve that result.

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