There was a scary moment in Plainfield, New Jersey recently after a distracted 67-year-old was looking at her cellphone and walked over a barrier and fell into a sidewalk cellar for Acme Windows. The question of liability is likely on the mind of the company even though the woman appears to have suffered non-life threatening injuries.
Workers were repairing a gas lines with the cellar doors open. The doors are quite high as barriers and I am a bit surprised that the woman made it over the top.
Her son is quoted as saying that the woman is legally blind and diabetic. She reportedly has particular difficulty seeing blended colors. The son is further quoted as saying that the company should have done more like putting out cones.
The raises the issue of negligence. Obviously putting out cones is a small burden. Torts often tracks the “Hand Formula” of B<PL (with B as the burden to avoid the accident; P is the probability; and L is the loss). If the B is less than the PL, there is a negligence. Yet, the probability of the accident given the high barrier of the doors seems low (though the opening has no barrier in front of the steps). The accident us reminiscent of Fletcher v. City of Aberdeen, 54 Wn.2d 174, 338 P.2d 743 (1959), where a blind man fell into a ditch dug by the city and left over night without barricades. There were barricades earlier but they were not replaced after work was done that day. The city insisted that it was not required to take precautions for blind citizens, but rather average pedestrians. The Court disagreed and imposed liability.
Here, of course, the doors created a barrier. Most blind individuals would sense the door with a cane or other device. The question is whether the victim was negligent in being legally blind but not utilizing such a device. Then there is the use of the cellphone while walking, particularly if you are already sight impaired. That all makes for a solid defense based on Plaintiff’s conduct for comparative negligence.
What do you think?