Bernardoni v. City of Saginaw – Constructive Notice of Sidewalk Defect

In North Carolina, cities enjoy a general authority and control over all public streets, alleys, bridges and sidewalks within those corporate limits. However, those cities, by statute (NCGS 160A-296(a)(1)), must also maintain those sidewalks in proper repair. Cities are also responsible to conduct reasonable inspections from time-to-time to check for any possible defects. sidewalkcrack

In order to be found liable for a personal injury caused by a defective sidewalk, an individual has to prove that the city had actual or constructive notice of the defect. That means one needs to show someone actually told the city about that particular defect before – and the city did nothing to fix it or warn people about it – or the condition existed for such a length of time that had the city been using reasonable care, it would have discovered it.

In most cases, we’re going to be talking about constructive notice. That means plaintiffs have to gather lots of information to lay the foundation for the case. They may even need expert witness testimony to discuss how and when the defect formed. 

This was exactly the scenario in the recent case of Bernardoni v. City of Saginawbefore the Michigan Supreme Court.

According to court records, plaintiff was walking on the sidewalk in defendant city when she unexpectedly encountered a two-inch drop in the adjacent sidewalk slab. She stumbled and tripped, suffering serious personal injuries as a result of her fall.

The law in Michigan requires that plaintiffs in this sort of scenario prove that the alleged defect existed for at least 30 days prior to to the incident. This window of time is deemed sufficient for the city to have obtained constructive notice.

To support her claim, plaintiff presented photographs that her husband took approximately one month after the incident, showing the site where she had tripped. That meant she needed to show the defect existed at least 60 days before those photos were taken in order to have a valid case.

The trial court found these photos alone to be insufficient to prove the defect had existed for at least two months before the fall. The judge granted summary judgment to the city.

Plaintiff appealed and the appellate court reversed. The court determined it was unlikely that this two-inch disparity in the walking surface simply appeared suddenly over the course of two months. It determined there was enough evidence to support the claim.

Defendant then appealed to the state supreme court, which reinstated the trial court’s ruling.

The photographs did show the defect and there was no dispute that this was the site that it occurred. But how long had it existed? The photographs alone don’t show that, the court ruled. What the plaintiff needed was expert witness testimony that would identify what this kind of defect was, explain how it forms and shed light on how long it takes to form.

So while expert witness testimony isn’t technically required of all personal injury lawsuits, your attorney needs to carefully consider whether the evidence at hand can prove the basic elements of the claim or whether it is necessary to take it a step further.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Bernardoni v. City of SaginawJuly 5, 2016, Michigan Supreme Court

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Sue a Hotel for Carjacking? Victim Claims It Was Foreseeable, Preventable, July 11, 2016, Charlotte Slip-and-Fall Accident Lawyer Blog

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