It’s contended city knew of defect for more than 90 days leading to injury
On Nov. 14, 2009, plaintiff was walking in the Joe Louis Arena parking garage following a Detroit Red Wings game. As plaintiff walked around the corner of the spiral stairway located near the fifth floor of Tower B, he stepped into a hole, which was more than 2 inches deep. Photographs depict the size, depth and condition of the hole at the time of the incident.
plaintiff suffered a nondisplaced Jones fracture of the right foot, fractures at the proximal aspect of the fifth metatarsal, and a right ankle sprain. Three years after the incident, plaintiff had significant residuals, which were expected to be permanent in nature. His medical bills were in excess of $9,500 and his wage loss in excess of $29,500.
Plaintiff argued that the open and obvious doctrine did not apply, as defendant has a statutory duty to maintain the area, which is considered a public building under defendant’s control and is open for use by members of the public.
In addition, it was contended that defendant had constructive knowledge of the defect and failed to remedy the defective condition after a reasonable period of time, as the characteristics of the hole and the rust on the reinforcing bar within the concrete show that the hole would have existed for an extended period of time.
Plaintiff also asserted that there was no dust or debris present in the hole, which indicated that employees and/or agents of the city were cleaning the area prior to plaintiff fall, meaning that there had been actual notice of the hole.
A concrete expert testified that based on the characteristics of the hole at the time plaintiff injured himself, it was in existence for more than 90 days, which means notice and adequate time to repair is conclusively presumed, under MCL 691.1406.
A Wayne County jury determined that defendant failed to properly repair and maintain the area in which plaintiff was injured. The jury found no comparative negligence, as plaintiff testified that he could not see the hole prior to stepping into it, because of the wall-to-wall crowd of people around him. In addition, he was not under the influence of drugs or alcohol, and was walking at a normal pace.
Type of action: Public building defect
Type of injuries: Right foot fracture
Court/Case no./Date: Wayne County Circuit Court; 11-013755-NO; May 1, 2013
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