Helen Levenson v. City of Ann Arbor
336231
| Mich. Ct. App. | Dec 26, 2017Background
- Plaintiff tripped on a defect (“hole”) in an Ann Arbor sidewalk adjacent to the Jolly Pumpkin on September 7, 2014, sustaining serious injuries and suing the City under the sidewalk exception to governmental immunity (MCL 691.1402a).
- Photographs taken the day of the accident show the hole and surrounding hairline cracks; the City patched the hole within two days after the accident.
- The City had a five-year sidewalk repair plan (2012–2016) that inspected 20% of sidewalks per year; the accident site was scheduled for repair in 2015, after the 2014 fall.
- Plaintiff’s case relied chiefly on a civil-engineer expert who, based on photographs and depositions (but no site inspection or measurements), opined the hole resulted from freeze–thaw spalling and had existed for several months and that at least one edge was about two inches deep.
- The City moved for summary disposition arguing governmental immunity applied and plaintiff could not meet MCL 691.1402a’s 30-day knowledge requirement, lacked admissible proof the defect existed 30+ days, and plaintiff’s expert testimony was speculative and inadmissible under MRE 702.
- The trial court denied the City’s motion; the Court of Appeals affirmed, finding the expert testimony admissible and that the defect was sufficiently apparent to give rise to a conclusive presumption of constructive knowledge and to rebut the presumption of reasonable repair under the two-inch rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony (MRE 702) | Expert’s photographic analysis and experience reliably support opinions on cause, age, and depth of defect | Expert relied on photographs only; opinions speculative, lacked measurements/tests, therefore inadmissible | Court: Expert testimony admissible; challenges go to weight/credibility, not admissibility |
| 30‑day existence of defect (MCL 691.1402a/691.1403) | Photographs plus expert’s opinion that defect was months old create genuine factual dispute about pre‑accident existence | Photographs alone insufficient under Bernardoni; no admissible direct proof defect existed 30+ days | Court: Expert opinion supplies sufficient additional evidence to connect photos to earlier condition, so 30‑day existence is supported for summary disposition purposes |
| City knowledge (actual vs. constructive) | City had notice via prior complaints (manager) and/or should be charged with constructive notice once defect was readily apparent 30+ days | Manager’s statement is hearsay and inadmissible; no other proof of actual notice | Court: Manager’s reported statements are inadmissible hearsay, but constructive knowledge is conclusively presumed under MCL 691.1403 because defect was readily apparent for 30+ days |
| Rebuttal of presumption of reasonable repair (2‑inch vertical discontinuity / dangerous condition) | Expert and City inspector opined the defect met or approached the two‑inch vertical discontinuity and was a dangerous sidewalk condition | Depth cannot be ascertained from photos; evidence insufficient to rebut statutory presumption | Court: Record (expert opinion + inspector testimony) suffices to rebut presumption under the two‑inch standard; trial court did not err |
Key Cases Cited
- Bernardoni v. City of Saginaw, 499 Mich 470 (photographs alone do not show defect existed 30 days earlier; additional evidence required)
- Elher v. Misra, 499 Mich 11 (MRE 702 gatekeeping requires court to ensure reliability of expert testimony and methodology)
- Moraccini v. City of Sterling Heights, 296 Mich App 387 (standard of review for governmental immunity and summary disposition)
- Gilbert v. DaimlerChrysler Corp., 470 Mich 749 (trial court must perform, not abandon, gatekeeper role under MRE 702)
- Maiden v. Rozwood, 461 Mich 109 (documentary evidence considered on summary disposition must be substantively admissible)