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Claim Respons of Butts FloristsBARRY A. LINDAHL~ COKPORATION COUNSEL MEMO To: Date: " Re: Mayor Terrance M. Duggan and members of the City Council January 12, 2000 Claim of Butts Florists Claimant Date of Claim Date of Loss Nature of Claim Butts Florists 1/3/00 12/22/99 vehicle damage This is a claim for damages to a Butts Florists truck, which it sustained when it ran over an "uprooted portion of asphalt,, on University Avenue where it merges with Hill Street. Under Iowa law, a city is not the insurer of the condition of its streets, and is only liable if it is negligent. The City's duty is to exercise reasonable care to keep its streets free from defects. Before a city is liable for damage caused by a street defect, the city must have had actual knowledge or constructive notice of the defect, with sufficient time to have repaired it prior to the incident causing damage. Actual knowledge occurs when the city is actually aware of the defect; constructive notice occurs when the defect has existed for such a period of time that a reasonable person would have discovered it. According to the report of John Klostermann, Street\Sewer Maintenance Supervisor, the City did not have any actual knowledge or notice of the defect until the incident giving rise to this damage claim. Once the notification was received, however, the City did repair the pavement. Based upon any prior knowledge or notice of the defect, Mr. Klostermann recommends that the claim be denied. The Legal Department concurs with that recommendation. BAL/cg/Attachment cc - Mr. Don Vogt cc - Mr. John Klostermann cc - Mr. Terry Scb_mitt, Butts Florists OperaQons & Maintenance Depaz~tment 925 Kerper Blvd. Dubuque, Iowa 52001-2338 Phone (319) 589-4250 FAX (319) 589-4252 January 10,2000 Barry Lindahl Corporation Counsel 50 West 13th Street Dubuque, IA 52004-4864 Dear Barry: This letter will respond to the claim filed by Mr. Terry Schmitt on behalf of Butts Florists. Mr. Schmitt claims tire damage to a truck he was driving on University Avenue at Hill Street when he hit debris in the street due to deterioration of the pavement. Our records show that we did not receive any report of the pavement defect until Mr. Schmitt called and notified us on, December 22nd. Once we received thiS notification, a crew was dispatched and the repair was made. Therefore, it is my recommendation to deny this claim due to the lack of any prior knowledge of this defect. Sincerely, ,/. J~hn Klostermann Street/Sewer Maintenance Supervisor Service People Integrity Responsibility Innovation Teamwork