Bernardoni v. City of Saginaw
Docket No. 152097
Trial Lawyers’ Bottom Line: Mere photos after the fact are not enough. An affidavit or expert testimony is needed to create inference that photos represent the sidewalk at the relevant time.
Photo taken thirty days after accident is not probative of sidewalk condition thirty days before the accident. Thus Bernardoni failed to establish a genuine issue of material fact.
Bernardoni tripped on a raised slab of concrete in Saginaw and injured herself. The only evidence she submitted were photographs taken thirty days after the accident. The trial court granted Saginaw’s motion for summary disposition. The Court of Appeals reversed because of the “high unlikeliness” that the slab of concrete would have shifted in thirty days.
Under MCL 691.1402a(2), a municipality is only liable for injuries resulting from sidewalk damage if the plaintiff proves that at least thirty days before the injury, the municipality knew or should have known of the defect. The Legislature then stated in MCL 691.1403 that a municipality is “conclusively presumed” to know of a defect when it was “readily apparent to an ordinarily observant person for thirty days or longer before” the accident.
The Court unanimously held in a memorandum opinon that the photographs taken thirty days after the accident were insufficient to raise a genuine issue of material fact that the defect originated at least thirty days before the accident. The Court noted that the photos could have been probative if they were supported by additional evidence, but they were not. And it went on to suggest that an affidavit of neighbors or expert testimony stating that the discontinuity photographed happened over a long period of time.
Reading this in light of the Court’s recent decision in Kozak suggests that photos taken at any time combined with an affidavit of someone in the neighborhood confirming that the photos represent the state of the sidewalk during the applicable time period establishes a genuine issue of material fact.