Sewer workers in Staten Island, N.Y., may not be solely responsible for the injuries of a multitasking teenager who fell into an uncovered manhole while apparently walking and text-messaging at the same time.

Alexa Longueira's family says it intends to sue the City of New York because a Department of Environmental Protection (DEP) crew flushing a high-pressure sewer line left the manhole unattended. The city requires sewer workers to bar pedestrian access to work sites or at least mark them with warning signs.

Courts have found that pedestrians do not have to be as watchful of hazards as automobile drivers and even plaintiffs who were drunk when they fell into an open manhole have been able to win negligence cases. But the City of New York might still be able to show that Longueira, 15, was contributorily negligent.

A pedestrian is not authorized “to shut his eyes to open and obvious dangers, and pay no attention, whatever, to the condition of the highway in which defects may, although they should not, exist,” a Maryland court said in M. & C. C. of Baltimore v. Bassett, 104 A. 39 (1918).

Longueira was with a friend when she fell into the manhole July 1, sustaining scrapes on her arms and back as she slid into the sewer. According to her mother, doctors are concerned about possible spine damage.

The friend “literally just handed me the phone and I opened it [and] I felt this big drop," Longueira told the Staten Island Advance. "It was four or five feet, it was very painful. I kind of crawled out and the DEP guys came running and helped me. ... They were just, like, 'I'm sorry! I'm sorry!'"

Her mother said workers told her they left the open manhole unattended for only a second as they went to fetch some cones from their truck. The sewer wasn't full but, Kim Longueira said, "Oh my God, it was putrid. One of her sneakers is still down there."

The workers' apparent failure to cordon off the manhole leaves the city with obvious liability. But New York allows comparative negligence and it could at least be a jury question whether Longueira was at fault for not looking where she was going.

As one legal commentator has noted, the doctrine of reasonable care “requires travelers on the sidewalks of public streets to look where they are going” and

If there is a conflict of testimony, or for any cause there is reasonable doubt as to the facts, or as to the inferences to be drawn from the facts established by the evidence, the contributory negligence of the pedestrian is a question for the jury.

Even where a hazard is “open and obvious,” courts have found liability against landowners when “the landowner has reason to know that the visitor might ... be distracted from observing the hazard.” Michalski v. Home Depot, 225 F.3d 113 (2000). Such cases have often involved slip-and-fall injuries in retail stores where displays of merchandise catch the eye of customers.

But Longueira would not be able to argue the “distraction exception” since hers is a case of self-distraction.

By Matthew Heller
7/13/09