Man cannot pursue claim arising out of collapse of "handhole" in City sidewalk
John Fitzgerald was accompanying an elderly woman to her car when he stepped on the lid of a "handhole" in an Ann Arbor sidewalk and injured his ankle. He immediately filed a claim with the City, on the form that the City provided him. When a settlement could not be negotiated, he filed a lawsuit arguing that the sidewalk wasn't reasonably safe as a result of the deteriorated "handhole" cover that cracked under his foot. The trial court dismissed his claim because, although the form the city provided him did not ask him for witnesses, Fitzgerald, unfamiliar with the pertinent statute, did not identify on the form the elderly woman who was present when he fell. The Court also cited Fitzgerald's inability to document that the City had notice of the deteriorating "handhole" lid.
Fitzgerald appealed. He argued that it was inappropriate for the City to seek dismissal based on the unidentified witness, where Fitzgerald had relied upon the City's form to provide it with prompt written notice. He also pointed out that the City could not document any prejudice resulting from the fact that it did not learn the identity of the witness within 120 days. The appellate court avoided addressing this issue of the City's "deceptive" form, by focusing on the issue of notice of the deteriorating lid.The judges ruled that Fitzgerald's claim was properly dismissed because he couldn't prove that the City knew the lid was deteriorating. The statute governing safe sidewalks "presumes" that the municipality has notice of a condition that has existed for more than 30 days. Even though the City was in the process of replacing this older form of "handhole" with new, presumably safer, less deteriorated, lids, and even though at least one other lid had failed underfoot prior to this one, the Court held as a matter of law that the City lacked actual or constructive notice of the deterioration. It also dismissed Fitzgerald's suggeston that photographic evidence of the lid showed that there was an existing crack in the lid prior to Fitzgerald's fall.