Dempsey v. City of Detroit

4 Mich. App. 150 (1966) 144 N.W.2d 684

DEMPSEY
v.
CITY OF DETROIT.

Docket No. 661.

Michigan Court of Appeals.

Decided September 13, 1966.

Mansfield, Sulzbach & Jones (George A. Jones, of counsel), for plaintiff.

Robert Reese, Corporation Counsel, and Alfred Sawaya and Andrew F. Valenti, Assistants Corporation Counsel, for defendant.

McGREGOR, P.J.

The plaintiff in this case, an elderly woman, allegedly suffered a fractured hip and other serious injury when she fell upon a broken sidewalk within the corporate limits of the defendant city, on May 14, 1964. By letter of July 2, 1964, her attorney gave notice of this injury to the corporation counsel of the defendant city. This letter identified the location of the accident merely as "sidewalk on Adams and Woodward".

On October 30, 1964, the plaintiff brought this action in Wayne county circuit court, to recover damages for her injury. The trial court granted the defendant city's motion for summary judgment, dismissing the complaint on the grounds that the notice did not specify the location of the defective sidewalk, as required by the former statutory provisions then in effect. CL 1948, § 242.8 (Stat Ann 1958 Rev § 9.598). The trial judge held that the notice was fatally deficient because it failed to indicate at which of the four corners of the intersection of Adams and Woodward the defective section of sidewalk, which allegedly caused the plaintiff's injury, was located.

On appeal, as in the trial court, the plaintiff contended that the city is estopped to defend on the basis of deficient notice of the defect in the sidewalk because, on the basis of said notice, the city had no difficulty in finding the defect and making the necessary repairs. This argument was obviated by Barribeau v. City of Detroit (1907), 147 Mich 119, which, in interpreting a statutory predecessor of CL 1948, § 242.8 (Stat Ann 1958 Rev § 9.598), held that a notice of personal injury caused by a defect in a sidewalk was legally insufficient because it failed to state at which of the four corners of an intersection the defective condition was located. In that case the court held that the purpose of the notice requirement was not only to enable the city officers to investigate but also to confine the potential plaintiff to a specific spot where the injury was alleged to have occurred. Since the notice must describe the place of injury sufficiently to make it identifiable from the notice itself, it is immaterial whether or not the city has repaired the defect. The rationale of Barribeau was approved in Overton v. City of Detroit (1954), 339 Mich 650.

The judgment of the trial court is affirmed. No costs are awarded because of the public nature of the question involved.

HOLBROOK and QUINN, JJ., concurred.