Woman can pursue claim arising from fall on raised slab of sidewalk, but must prove1 inch defect was apparent for 30 days
Margaret Malinasky fell on the sidewalk next to Clawson Avenue in Royal Oak, suffering a serious injury. She sued the City and provided affidavits from engineers to confirm that the sidewalk was not "in reasonable repair" and that its uniform one- inch disruption was not readily apparent to a user. The City sought summary disposition, arguing that the defect did not satisfy the "two-inch" rule and that it had no notice of the defect.On appeal, the Court of Appeals noted that the presumption or inference that the sidewalk was in good repair because the defect was less than two inches in height applies only to sidewalks adjacent to county highways. Since Clawson Avenue is not a county highway, the case must be decided on the facts adduced without reference to inferences or presumptions of due repair. Under the proofs presented, the judges concluded that a question of fact had been raised for the jury's consideration.
The court sent the case back to the trial judge, however, to assess whether the City had reasonable notice of the defect. It noted that the judge had not explained the apparent inconsistency between the plaintiff's claims that the defect was not apparent to a reasonable user, yet it was "readily apparent to an ordinarily observant person for a period of 30 days," thus satisfying the notice requirement. (A municipality is not responsible for a defect of which it had not notice.)