OMG SNERT HAS NU TXT TORT! Girl Walks Into Open Sewer Hole While Texting

200px-Texting300px-OrficeWe have a new texting tort. Alexa Longueira, 15, was walking and texting on Staten Island when she plunged into the ground. She fell into an open manhole and ended up in the pitch black sewer. Her family is preparing to sue the city, which itself is investigating the incident.

As our own poster “Clueless” noted, she immediately texted “hlp am trppd n swr pls rscu me.”

The high school sophomore has a case. While she was negligent in texting and walking, the courts have previously ruled that cities must anticipate inattentive people or people with disabilities who may not see an open manhole or ditch. In Fletcher v. City of Aberdeen (1959), the city workers failed to put back barriers around an open hole and the court found that the city had to anticipate such individuals who cannot see such a danger. Likewise, Robinson v. Pioche, Bayerque & Co. (1855), a court found that the inebriation of an individual was not a defense for a city. In a statement that may fit this teenager’s case, the court held that “a drunken man is as much entitled to a safe street as a sober one, and much more in need of it.”

Recently, in another case a 67-year-old blind man plunged 25 feet down an elevator shaft to his death in his Bronx apartment building when the stepped into the open doors of an elevator without realizing that there was no elevator door.

For the full story, click here.

36 thoughts on “OMG SNERT HAS NU TXT TORT! Girl Walks Into Open Sewer Hole While Texting

  1. This is where the law of torts and I depart. I do not believe that the city should be liable albiet an inattentative plaintiff. The young girl is the cause of her own peril. Not the city.

  2. At what point does tort law end and clueless, irresponsible behavior begin?

    What next, do we need to start a new government paid for program … Friend Don’t Let Friends Text and Walk?

    http://tinyurl.com/ngl34e

    Of course in our “no personal responsibility” and “sue happy” nation, the family wants $’s because of their daughter’s lack of paying attention. I guess where we know where she learned responsibility from. Earth to Longueira family, an elderly person or mother pushing a stroller would have the common sense to see the open man hole and avoid it.

    Let’s face it, this girl was not paying one bit of attention to what she was doing. There could have been flashing lights and it may have made no difference. She was nit paying attention to her surroundings. What obligation does an individual have to mitigate their damages?

    Exit Question: What would have occurred if this same girl who was oblivious to the world had walking into an elderly person or a baby carriage and knocked them over and injured a baby or old person? Would that be their fault to?

  3. The city has the burden to protect an inattentive pedestrian from falling into the open sewer.

    We all operate on “cached thought”. We ignore those things that we don’t expect to be variables. -We take them for granted.

    We expect our car to turn left, when we turn the steering wheel to the left.
    We expect our cheeseburger to be free of poison.
    …And we expect the sidewalk to not have a big hole in it.

    Texting is annoying to those of us who don’t do it. (maybe even to some that do) However, the amount of inattentiveness associated with texting while walking, is not much different than the lack of attention while looking up at workers on the side of a building, or looking up to see the plane who sound we hear, or looking in a store window as we walk down the street.

    Even when we are not paying attention, we subconsciously address those variables that are known to change. We manage to avoid objects in our path (like people, or sidewalk signs, or trash cans), but our subconscious ability (that we rely on everyday) completely blocks out those things that we don’t expect to become variables.

    Even when we are “being attentive”, we easily miss those things that we are not likely to have a need to address.

    If I threw a baseball, from an unseen location, into a crowd of people that are walking down the street in Manhattan; how many people would react before getting hit? -Most, if not all, would never react before getting hit. -The variable was too unexpected. The comfort afforded us by cached thought caused us not to recognize the danger.

    An open sewer must have a physical barrier to protect “inattentive” people from falling in.

    If this was an elderly woman, who was walking down the sidewalk while talking to her husband…therefore, not paying attention; would we put the majority of the blame on the elderly woman, or the failure of the workers to put a safety boundary in place?

  4. Red & AY:

    New York is a comparative negligence state which usually means that the defendant bears the responsibility for its negligence in the proportion it contributes to the injury so long as it is at least 51% negligent. Thus if the jury finds the plaintiff 40% negligent and the City 60% negligent, her award is reduced by the amount of her negligence or 40%. This type of system stops the unfair result where the plaintiff is only slightly negligent and is injured, for example when the drunk driver comes across the road and hits you while you are driving 3 miles over the speed limit. In Virginia, theoretically, you should be barred from recovery under our draconian contributory negligence law since your were negligent in exceeding the speed limit and your negligence arguably prevented you from acting to avoid the accident due to the shortened reaction time. There is some method to the madness, but an argument can certainly be made that our putative SNERT was more than 51% responsible for her dilemma.

  5. I managed CGL claims for two State Authorities back in the day
    before med school.

    They are some of the worst offenders when it comes to safety. They can’t, or don’t, keep up with all in need of repair well and not all employees are exactly high calibre, in my view.

    Some of the worst accidents and senseless tragedies I saw come across my desk were from Housing Authorities – like kids falling out screenless windows, or chemical burns from drain cleaner that ran through pipes being cleaned above to a bath in use below, to a broken hip and death of an elderly tenant all due to a light bulb unchanged in a dark garbage-strewn hallway.

    Thank goodness people still have some recourse and advocates, like my main man mespo, naturally…

    Most people agree that she should have been watching where she was going – at least a little, especially on LI. Most others would also agree that manhole covers are not known to be left off manholes, unattended, or in those instances, very clearly marked or blocked off. Stuff happens…

  6. There was a case some years ago of a lady who got so annoyed at the local kids’ stealing her watermelons out of her watermelon patch, that she actually poisoned the watermelons so as to show those little devils, and a kid died.

    If you follow the kind of reasoning some have posted here, you don’t need to go much further to argue that the family of the kid who died ought not to be able to sue the lady, because after all the kid was stealing the watermelon.

  7. Patty C:

    “Thank goodness people still have some recourse and advocates, like my main man mespo, naturally…”

    **********

    Why thank you, Patty C.

  8. Nancy Irving 1, July 13, 2009 at 5:17 am

    There was a case some years ago of a lady who got so annoyed at the local kids’ stealing her watermelons . . . she . . . poisoned the watermelons . . . and a kid died.

    If you follow the kind of reasoning some have posted here, you don’t need to go much further to argue that the family of the kid who died ought not to be able to sue the lady, because after all the kid was stealing the watermelon.
    *******************
    Humm, did she take an affirmative act to harm these children? Yes
    Did she have a duty to these children? No
    Did she breach that duty? Yes.
    Were these children harmed? Yes.
    Could the harm being done be prevented? Yes
    Was there Damage? Yes

    This I believe falls into the attractive nuisance doctrine. She knew that the children would be stealing the watermelons. Heck why did she not spike em and cause alcohol poisoning as well? Then she could have seen the little snerts falling all over the placed and laughed until one died. That would have been as funny as the poison.

    I would like to know what area you live in so the children that go trick or treating are warned of your house, how big is your oven by the way?

    If you cannot tell the difference between an inattentive person who has a duty to pay attention while walking in traffic and one that cannot do anything to protect themselves even if they did everything possible to protect themselves from one that stole a free watermelon they need to be saved from people like you.

    I hope that I am just misreading your post. If so I apologize in advance.

  9. AY,

    Unbunch your undies pal, I think you misread ‘Nancy Irving’. She was sarcastically advocating a more moderate approach than … oops, I went back up to the top of the thread to pick out some names of the people absolving the city from blame for leaving an unprotected hole in it’s sidewalk and AY seems to be the first in that group.

    Did you change your position on the matter (city not at fault), or did you mis-read the NI posting to assume she advocated poisoning little children, which she did not?

  10. LottaK,

    If you can equate an act of poisoning to stop stealing kind of like a loaded spring gun to protect your property from burglars to fools not looking out for themselves when they have a duty to do so.

    How do you know if someone did not move the manhole cover to sell it, or moved the barricade or it was in place and the girl fell through it?

  11. A.Y.,

    Texting isn’t the only reason someone might miss an open hole. The city should put barriers around things like that. It’s true someone may have removed the barriers. This would come out at trial. According to mespo, the law in NY would assign partial blame to the texter and partial blame to the city, according to the facts as determined at trial. That seems reasonable to me. There’s my 2 cents now devalued to -14! (I’ll go print some more money when I fall into the open manhole under the Fed, sneak past all the pet alligators and snakes released into the “wild”, pass by the laser alarm triggers like Tom Cruise, and presto–more money. Let me know if you want in on the action.

  12. Bar Study Break:

    “Nancy, that seems like unreasonable force for the protection of property.”

    ************

    Good thinking-expect the “thin” package as we used to say–I know you find out “on-line” now. See spring gun cases. I had that on my bar exam back in the Dark Ages. Katko v. Briney, 183 N.W.2d 657 (Iowa 1971)(“”the law has always placed a higher value upon human safety than upon mere rights of property.”) Farmers are a touchy lot you know!

  13. Jill

    A.Y.,

    Texting isn’t the only reason someone might miss an open hole. The city should put barriers around things like that. It’s true someone may have removed the barriers. This would come out at trial.

    That or this I am aware of.
    ___________________________________
    According to mespo, the law in NY would assign partial blame to the texter and partial blame to the city, according to the facts as determined at trial. That seems reasonable to me.

    This is called comparative negligence. I agree with that as well.
    ___________________________________

    There’s my 2 cents now devalued to -14! (I’ll go print some more money when I fall into the open manhole under the Fed, sneak past all the pet alligators and snakes released into the “wild”, pass by the laser alarm triggers like Tom Cruise, and presto–more money. Let me know if you want in on the action.

    Heck just do it like the Feds and print your own money backed by the full faith and credit of JillEStone Nat’l Bank. Ah, but he government hates competition.

    I do hear Gator is tasty, snakes are nasty and I want to try some Giraffe. It has been ruled Kosher now not that that has been an issue that I concerned myself with too often.

    Nothing better than a Chili Cheese Dogs with Onions,Jalapenos, Relish and I have to pass on the sour kraut as it would give too much gas. well that may be TMI.

  14. AY,

    Well, others have answered the legal questions. I would have just said that the actual article didn’t seem to have any disclaimer in it from the city such as ‘people are always stealing our manhole covers, barriers etc.’ but it will all come out I’m sure.

    I actually found Jim’s comment to be interesting sans any legal argument. I’ve been victimized by my own “cached thought” on more than one occasion. It’s why large, obvious barriers are needed to override our expectations of solid sidewalks, normally unlocked doors being locked for repair, or the road going on forever instead of taking those pesky detours.

    I go to the same aisle in the local grocery for salsa that I’ve gone to for at least 5 years. Problem is they changed their layout about 6 weeks ago but it doesn’t matter, I turn right at aisle 7 and find myself surrounded by soup instead of junk food. I know it’s in aisle 10 now with ‘Mexican/Oriental’ but the auto-pilot just won’t stay reset. (Salsa is real food? Who knew? And is ‘Oriental’ even a designation that’s culturally appropriate anymore? Going to the store these days, for me, is becoming a trip to high anxiety and cultural dissonance.)

  15. lottakatz,

    There are four main food groups. They have an overlord. His name is Junk Food. That’s all you need to know. :)

  16. lottakatz said “Going to the store these days, for me, is becoming a trip to high anxiety and cultural dissonance.”

    Thanks for the bringing out a good chuckle. I can relate.

  17. Anonymously Yours
    “1, July 13, 2009 at 10:42 pm
    Jill 1, July 13, 2009 at 9:08 pm

    lottakatz,

    There are four main food groups. They have an overlord. His name is Junk Food. That’s all you need to know.
    *********************************

    While I agree and do not pay homage to the Dark Over Lords Offerings too often. Does Ice Cream get special dispensation? As it is a Dairy product with all sorts of inert goods. Even homemade has a certain amount of bad stuff in it. But it is still good. I have been on the Banana Split craze by Blue Bell. Still 1/2 gallon and can usually purchase it for 3 for 10. I am gaining an affection for the Triple Chocolate coated Almond Fudge. But one that had my attention was Grooms Cake,(Groom’s Cake Ice Cream is a luscious chocolate ice cream with chocolate cake pieces and chocolate coated strawberry hearts, surrounded by swirls of strawberry sauce and chocolate icing.) Sorry it was gone in about an hour. Yes, a half gallon.”
    ++++++++++++++++++++++++

    Blue Bunny does a Raspberry Swirl for about 6 weeks a year that is coveted and hoarded in my house. Right now there is a little tub of Cherry Garcia that I just sneaked a spoonful of (it’s rationed between the better half and myself) and I can’t think of a better counterpoint to the salads and veges and generally good nutrition we have been practicing for the last year. I can enumerate every piece of pie, cake or candy I’ve had in the last 14 months and there just ain’t many.

    Srsly, last week I was thinking that I would kill for a brownie, literally. It was a monumentally bad week and a brownie was the only comfort I could focus on. Saturday I had to stop and get 3 of those too-small tubs of Cherry Garcia.

    AY, There is nothing quite so cruel that you could have written to me as that description of ‘Grooms Cake,(Groom’s Cake Ice Cream’. I have said Jill is the embodiment of evil but, sorry Jill, I was wrong. You have been surpassed with little more than the name of a commercially produced guilty pleasure posted by AY. I am craven, this I admit freely :-)

    I can recall that 3 of the 4 food groups are Tomato, Fried and Chocolate but the 4th escapes me. I’m thinking that it’s Butter; Ice Cream would fall under the Butter=Cream=frozen/whipped group would it not?

    Jim, glad I could be of service, I could come up with many, many examples based on your posting, it’s just the way we’re wired, I enjoyed your take on the issue.

  18. Lottakatz,

    Here’s my diet advice. Go with whatever diet recommends eating what you’re eating at the time! Atkins says it’s the carbs, not the ice cream that’s evil, so that would be a good choice concerning Grooms Cake. When bread looks good, remind yourself that you’re following the old govt. food pyramid and have had a momentary memory loss about the new recommendations. It’s a very post modern process towards eating.

    I will have to regain my crown from A.Y. This may take some time…

  19. Jill,

    This one is for you: Chocolate Moo-llennium Crunch – Rich chocolate ice cream (when they say rich it will make you wake up in night sweats) with a combination of dark chocolate chunks, creamy caramel chunks, roasted pecan halves, chopped almonds, walnut pieces and peanuts.

    It is good too. I refuse to read the cal or any other information which would take away my momentary pleasure.

  20. Ay What’s your favorite food other than ice cream? Remember we talked about the 13th and 14th.

  21. Swartmore Mom,

    Yes, I do. I hope that you are feeling better today and that you did not bring nuttin back from Boulder but a good time.

  22. By the way did you see the that a Southwest Airline Jet is giving rider a view of the sky? Apparently a section of the top of the plane came apart.

  23. Yes I saw that. We flew Southwest. I am feeling a little better. I have had a sore throat and laryngitis.

  24. I am a plaintiff’s lawyer with the attendant natural sympathy for most plaintiffs. But this case give ammunition to those who sqawk about “frivolous” lawsuits, and it is hard to muster up much sympathy for someone so responsible for her own injuries.

    Earlier commenters have made some great points, i.e., comparative negligence percentages would apply–a fact that may help defuse the outrage of those who think such a plaintiff will soon be collecting a giant windfall. But I am more taken with the comments of those who appreciate not only the young lady’s own part in her accident, but the potential damage that her inattention could have caused others.

    Maybe it’s time to move beyond the realm of tort law, and into criminal (or at least administrative). If NY’ers can no longer legally use their cell phones while driving, how about a law prohibiting texting while walking?

  25. Andrew Barovick said “If NY’ers can no longer legally use their cell phones while driving, how about a law prohibiting texting while walking?”

    In addition, we can add a law that prohibits; talking to others, window shopping, looking up, being a child, being blind…or a myriad of other ridiculous things.

    We have long recognized the hazards of opening a hole in a place that a hole normally does not exist. Hence, the reason safety boundaries are required to be put in place by workers who remove manhole covers.

    Are our sidewalks supposed to be a safe place for a visually impaired person to walk? Would a visually impaired person have suffered the same fate as the texter?

    –If the proper safety boundary had been in place, and the texter tripped over the boundary and fell into the sewer; the texter would have been fully at fault. (Barring any noted defects in the boundary.)

    Without such boundary; a person exercising a minimum amount of attentiveness could have suffered the same fate…even though they were not texting.

    —I think the city loses this one.

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