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Pothole claims against City and driver are defeated after passenger suffers neck injury

Laura Woods required surgery on her neck after Margaret Naylor drove into a pothole containing wet cement.  Woods was a passenger in Naylor's car as they approached a work scene.  The City had posted no barriers or warnings, and both women claimed to have seen the pothole only at the last moment.  The claim against the City was dismissed because proper notice wasn't given--even though City workers were at the scene and observed the incident--and the jury then concluded that the driver was not at fault.

Woods argued several points on appeal.  The Court rejected her argument that she had complied with the 120 day notice statute (because the City's employees witnessed the eventand prepared incident reports after interviewing the participants), holding that she was required to serve her notice upon "the mayor, the clerk or the city attorney."  The Court held that the City did not need to prove that it was prejudiced by the manner in which notice was accomplished. 

The Court also held that the driver was within her rights in blaming the City as a third-party responsible for the injury, even though the driver's attorney had not given notice of the City's fault in a timely manner.  If the case against the City was barred by the statute of limitations, the driver could not have blamed the City, however, the Court drew a distinction between the limitation period barring third-party defenses and the notice period.

The Court also rejected Ms. Woods' claim that the verdict should be set aside because the defense attorney had improperly inserted into the trial the claim that the driver was not issued a citation.  Under longstanding existing law, parties to a civil action are not allowed to introduce evidence of the issuance--or non-issuance--of a citation.  The defense attorney in this case raised the non-issuance in his Opening Statement and again in examining one of the parties (the opinion mistakenly refers to defense counsel eliciting the information during the direct examination of Plaintiff--a highly unlikely scenario).    The Court ruled that these multiple breaches of evidence rules were merely "harmless error" and did not deny Ms. Woods substantial justice.

Lastly, the Court upheld the lower court's decision that Woods' reconstruction expert, a retired State Police officer, was not qualified to testify.  The Court based this ruling on the fact that the officer did not examine the scene immediately, based his testimony on depositions and documents rather than calculations and tests,  and did not claim to be an expert in "human factors analysis."  We'll see if that same standard is applied when an insurer presents a comparable witness.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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