Man's sidewalk "trip and fall" is dismissed where City raises presumption that defect was under two inches

Jerry Meretsky suffered injury when he tripped on a Washington Avenue sidewalk in Royal Oak.  A witness saw him fall and reported the incident to the City, which promptly applied a cold patch to the defective sidewalk.  Meretsky later sued the City for damages, arguing that the sidewalk wasn't reasonably safe, and the City responded with a motion for summary disposition.  It filed with the court it's engineer's evidence documenting his removal of selected areas of cold patch and his opinion that the defect was never greater than 2 inches in vertical height. 

Meretsky's attorneys argued that the evidence wasn't conclusive with regard to the height of the defect, and that in any event, they had been denied the opportunity to measure the defect independently.  The trial judge sided with the City and summarily dismissed the claim, holding that Meretsky could not overcome the presumption that the sidewalk defect was under two inches in height and therefore reasonably safe.  The judges upheld this outcome on appeal. 

They ruled that he could not complain regarding the City's evidence because his attorneys had never filed a formal motion to compel the City to allow them to perform their own inspection.