Walking down the street in a neighborhood should be an easy and uneventful. Most of the time, the walkways and sidewalks are maintained and in good condition. But if they are not, then the city or government entity in charge of maintaining the sidewalk may be held responsible. These cases are tricky and involve governmental immunity, a strict notice requirement and issues proving negligence.
That is why if you are injured on a city sidewalk, it is essential to contact a good Michigan sidewalk trip and fall lawyer immediately. A person does not have to suffer the effects of a trip and fall or slip and fall accident from a sidewalk alone. Delaying can result in losing your rights to pursue a case.
What is the Rule for Uneven Sidewalk Injury Lawsuits?
Cities and governments having a responsibility to make sure sidewalks are in reasonable repair. In fact, trip and falls on sidewalks in Michigan are governed by a statute, specifically MCL 691.1402a. This is the statute:
- A municipal corporation in which a sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the sidewalk in reasonable repair.
- A municipal corporation is not liable for breach of a duty to maintain a sidewalk unless the plaintiff proves that at least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of the defect in the sidewalk.
- In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk in reasonable repair. This presumption may only be rebutted by evidence of facts showing that a proximate cause of the injury was 1 or both of the following:
- A vertical discontinuity defect of 2 inches or more in the sidewalk.
- A dangerous condition in the sidewalk itself of a particular character other than solely a vertical discontinuity.
- Whether a presumption under subsection (3) has been rebutted is a question of law for the court.
- In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) may assert, in addition to any other defense available to it, any defense available under the common law with respect to a premises liability claim, including, but not limited to, a defense that the condition was open and obvious.
As the law says, a city or county of the state of Michigan must maintain sidewalks that are adjacent to a street or roadway in reasonable repair. There is a presumption in favor of the city that it has maintained the sidewalk in reasonable repair. However, this presumption can be rebutted in two different ways: (1) the two-inch rule and (2) the sidewalk was particularly dangerous.
What is the 2 Inch Rule?
Under the Michigan sidewalk law, a city can be held responsible for causing injuries due to a dangerous or defective sidewalk if the “vertical discontinuity” defect is 2 inches or more. This is commonly known as the two-inch rule. What it means is if two adjacent sidewalk slaps have a vertical difference of 2 inches or more, then there may be a case against the musicality in charge of fixing and repairing the sidewalk.
If the difference between the adjacent sidewalk blocks is less than 2 inches, then the plaintiff cannot pursue a case.
It is very important to take photographs of the exact location where the incident occurred. If a person trips and falls on a sidewalk because one side is much higher than the other, this must be recorded.
What is the Particularly Dangerous Exception?
The statute also allows a person who trips and falls on a city sidewalk to pursue a case if the “dangerous condition in the sidewalk itself of a particular character other than solely a vertical discontinuity.”
So what does this mean? There have been few cases in our state’s appellate courts analyzing this and explaining what constitutes a dangerous particular character. Every case is different. Contact an experienced Michigan city sidewalk lawyer to go over your situation.
What Defenses Can the City Use Fight These Cases?
Cities and counties can use the same defenses private businesses can use in a normal Michigan slip and fall case.
Comparative Negligence:
Comparative negligence is also known as comparative fault. This is the fault of the plaintiff for not seeing or realizing the danger that caused their own injuries. If a judge or jury feels like the plaintiff was more than 50% at-fault for tripping on the sidewalk, then the plaintiff gets nothing for pain and suffering.
Open and Obvious:
This is another defense cities and counties can use. Something is considered open and obvious if a reasonable person upon casual inspection could have seen it. This defense has changed greatly with the Michigan Supreme Court’s decision in Kandil-Elsayed v F& E Oil, Inc. and Pinsky v Kroger Co of Mich (docket Nos. 162907 and 163430 respectfully).
Before, the open and obvious rule made it almost impossible to pursue most city sidewalk cases. However, the open and obvious nature of a sidewalk sticking up 3 or 4 inches will not go to the comparative negligence of the injured person. Again, contact an award-winning law firm that knows Michigan city sidewalk cases inside and out.
What is the Notice Requirement for Sidewalk Cases?
There is a very strict notice requirement. This means that within 120 days of the sidewalk injury, the proper municipality must be given proper notice. Failing to do this results in not being able to file a lawsuit! This deadline is very important.
To have proper notice, the injured person or his attorney must in writing send the municipality in charge of maintaining the sidewalk the following:
- The exact location and nature of the defect
- The injury sustained
- The names of the witnesses known at the time by the claimant.
In addition, this notice must be properly served by certified mail, return receipt requested, to the person who “may lawfully be served with civil process directed against the government agency.” Just mailing a letter to city hall is not proper notice.
Children gets 180 days to serve proper notice.
Again, it is vital to contact a Michigan city sidewalk injury lawyer to make sure notice is properly served.
How Long Do I To File A Lawsuit?
The statute of limitations for a city sidewalk lawsuit is 2 years from the date of the injury. But remember, you must file the notice within 120 days.
Understanding Michigan’s Sidewalk Immunity Bill
HB 4686 seeks to effectively give all cities, townships, and other municipalities full immunity from civil liability due to defective sidewalks.
Under current law, to prove a sidewalk defect case the plaintiff must show the defective sidewalk had at least a 2-inch vertical differential compared to the adjacent sidewalk slab. This is known as the “2-inch” rule. As I explained in a prior blog post, the new law allows municipalities to utilize the open and obvious defense in sidewalk cases, thus making it virtually impossible to bring any sidewalk claim.
Under the open and obvious law, landowners are not responsible for hazards or defects on their premises if the hazard is considered “open and obvious” and there to be seen. Currently, the open and obvious defense can only be used by private landowners. House Bill 4686 seeks to change this by allowing cities and townships to use the defense as well.
In reality, if HB 4686 becomes the law, municipalities will be completely immune from any and all lawsuits due to injuries caused by a sidewalk.
The reason is simple. Cities and towns are already protected by the 2-inch rule. This 2-inch variation is inherently open and obvious. A 2-inch vertical difference is there to be seen by the average person. Therefore, it would be impossible to prove both a 2-inch differential, yet claim this differential is not open and obvious.
The result is tragic. Every day citizens will not be able to seek any compensation for injuries sustained due to a city not properly maintaining its sidewalks. If passed by the state Senate and signed by Governor Snyder, cities and townships throughout the state of Michigan will have no incentive to make necessary repairs. Private health insurance carriers, Medicaid or Medicare will not get paid back for claims it paid on behalf of their injured beneficiaries.
The entire proposal is a financial money grab by state municipalities and the City of Detroit in particular. Instead of paying out rightful claims to its own citizens, cities will simply hoard taxpayer money.
The bill that passed the House will now move on to the Senate. I’m hopeful the Senate will take a more deliberative approach. The House Bill solves no problems. It only rewards decades of incompetence by the City of Detroit.
Michigan City Sidewalk Injury Lawyers That Fight for You
If you or someone you know has tripped over a sidewalk and sustained a bad injury, give our office a call. The attorneys and legal professionals at the Lee Steinberg Law Firm have been helping injured pedestrians for almost 50 years. We do it by meeting with witnesses, recovering video, taking photos, and hiring experts to explain why the city broke the safety rules.
We also do it by meeting and communicating with our clients. Call our office anytime at 1-800-LEE-FREE (1-800-533-3733). The consultation is free, and we will never charge anything until we win your case.
