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Claim Response Welu, Dave 8 A R R Y A. L I N 0 A H L, E CORPORATION COUNS CITY OF DUBUQUE MEMO To: Mayor Terrance M. Duggan and Members of the City Council DATE: August 18, 2005 RE: Claim Against the City of Dubuque by Dave Welu Claimant Date of Claim Date of Loss Nature of Claim Dave Welu 07/06/05 06/13/05 Vehicle Damage This is a claim in which the claimant alleges that as he was driving by a construction site near Iowa Street and 13th Street, claimant struck a rock which was in the middle of the street, damaging the oil pan on his 2003 Cadillac Deville. According to the report of Gus Psihoyos, City Engineer, Engineering Assistant Jane Smith reviewed excavation permits that were issued for the 13th & Iowa Street area at during the timeframe of the Welu incident, and found that there were no excavation permits issued for this time period. Mr. Psihoyos states that he has no reason to believe that the rock was from a City project and that the rock could have fallen from a passing truck or arrived there by some other means not within the control of the City. The Engineering Department's first notification of the rock in the street was when Mr. Welu filed his claim. Under Iowa law, a city is not liable for damage resulting from a defect in a street unless the city had actual knowledge or constructive notice of the existence of the defect and sufficient time prior to the event causing the damage to have corrected the defect. It is therefore the recommendation of Mr. Psihoyos to deny this claim. The Legal Department concurs with this recommendation. BALtls cc: Michael C. Van Milligen, City Manager -Jeanne Schneider, City Clerk Gus Psihoyos, City Engineer Dave Welu SUITE 330, HARBOR VI8N PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 583-4113 / FAX (563) 583-1040/ EMAIL ba/esq@cityofdubuque.org 5U~~E ~</k.~ MEMORANDUM August 17, 2005 TO: Tracey Stecklein, Administrative Legal Assistant FROM: Gus Psihoyos, City Engineer J:j;;), 1--5. SUBJECT: Dave Welu Claim I requested Engineering Assistant Jane Smith to review excavation permits which were issued for the 13th & Iowa Street area at the time of the Dave Welu incident. According to her review, there were no excavation permits issued for this time period. I have no reason to believe that the rock was from a City project. The rock could have fallen from a passing truck or arrived there by some other means not within the control of the City. The Engineering Department's first notification of the rock in the street near the 13th & Iowa Street area was discovered when Mr. Dave Welu filed his claim. Under Iowa law, a city is not liable for damage resulting from a defect in a street unless the city had actual knowledge or constructive notice of the existence of the defect and sufficient time prior to the event causing the damage to have corrected the defect. It is therefore my recommendation to deny this claim due to the lack of prior knowledge of this defect.