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?
Why wasn’t she using a walking stick or have a guide dog?
Assuming she has a problem with like colored objects, the doors are the same color as the sidewalk. She is not expecting it to be open. No warning signs or safety people. I rule negligence on the company.
This is inevitably what happens when dumbpeople use smartphones. There’s probably enough material like this that has been video recorded to make for an hour’s entertainment, albeit a redundant form of entertainment.
Ralph, I don’t know whether to laugh or be appalled! I was rear-ended by a woman checking her cellphone a few years ago. No major damage except a sore back.
That poor woman. I believe this happened because she was looking at her cellphone instead of where she was going. But I still feel very sorry for her getting hurt. She made a mistake and she got hurt.
As for her son claiming she is legally blind and diabetic, I have this to say. My own eyesight is so poor that without my contacts, I can literally only see a few inches in front of my face clearly. If I was on the street without my contacts or glasses, I would be lost. Really lost. For me to read a cell phone or Kindle without my contacts, it has to be a few inches in front of my face. That is regardless of how large the type is. She is not holding her phone at that level. Is she legally blind without corrective lenses, but is wearing prescription sunglasses? Or is she legally blind even with correct lenses? The way she is walking without assistance, and the length at which she holds her phone makes me question the comment about her lack of vision. Or at least need more information. It is true that diabetes can affect eyesight. If she is legally blind, then she needs a cane or a seeing eye dog. But she would not be able to see her cell phone.
If she was in fact legally blind, but without a sight dog or cane, then how would cones help? She’d walk through them. I am concerned about blind people navigating through obstacles, and I’m concerned about raising the bar of requiring barriers for blind people that have no assistance. That would require walls, and never cones. I don’t know that this would be possible for all applications. Cross walks would require walls.
It’s probably just me – but I find it creepy how cell phones have come to be ever-present. People wake up and check their phones and it’s the last thing they do before they go to sleep. People wandering around clutching their cell phones and obsessively checking for new updates. Going to restaurants / cafes where people don’t even talk or make eye contact as they are are engrossed in their respective “social” worlds. Texting while driving. Taking pictures and posting them as if an experience isn’t real unless it’s put on FB/Instagram/Twitter.
Huxley must be twirling in his grave.
An open and obvious condition. She owns her own negligence.
WHAT A WONDERFUL THING, TO BE CONSCIOUS. I WONDER WHAT THE PEOPLE IN NEW JERSEY DO?
WOODY ALLEN
How often do sidewalk openings occur in this area? Rarely or frequently? Is it reasonable for a person to expect possible sidewalk hazards in this general location?
“Here, of course, the doors created a barrier.”
No, not really. They are too low to prevent someone from falling into the hole.
When her lower legs hit the doors, she bent over (way over). The weight and the movement is enough to rotate her body into the hole.
(If she has vision difficulties, she shouldn’t be looking at a cellphone when walking. That’s even a problem for people with normal vision.)
JT missed this one. It gets better. UK, famous Abbey Road Crossing.
A woman runs, then goes outside of crosswalk. And slams into car. Or is it the other way around?
She is on her own. The judgement should read accident due to cell phone stupidity. When society needs to be tailored to people walking around not looking where they are going then we might as well make it mandatory to drink and drive. The contractor who had the doors open, however, should be fined for not cordoning off the area, if there is a rule on the books. There should be a rule that when you open a hole in the sidewalk, the path must be controlled. Go to a Home Depot sometimes and watch the care and attention given to the use of fork lifts, areas get closed, a flag guy precedes, buzzers go off, etc.
At the speed, with which she was walking–a speed, which, from the film clip, appeared to be quite slow–how the heck did she manage to do a flip over that barrier? I could easily understand how she could bump into it, causing her to, perhaps, fall on her backside, leaving her bruised and stunned, but that Olympic-style tumble is quite a feat. The Romanian judge gives her a 9.5 and the German judge gives her a solid 10.
The Romanian judge took off some from her score for failing to point her toes during the flip.
I am wondering what being diabetic has to do with falling into an obvious hole……
“Her son is quoted as saying that the woman is legally blind and diabetic. She reportedly has particular difficulty seeing blended colors”
As for the blended colors I don’t believe her son’s claim. Is her cellphone configured for high contrast coloring? How about her home computer?
The fact of the matter is that she intentionally neglected to use prudence when walking.
Liability? Negligence? This case reminds me of a warning that I once gave to some vistors who were walking along the trails of the Grand Canyon while staring at their smartphones. Unfortunately, one of them did not listen to my warning and continued to stare at his smartphone. He would not release his gaze upon the smartphone until he slipped and plunged several 40 feet to his death. In fact, he continued to stare at his smartphone even as his screams echoed throughout the Canyon. When members of his family learned of the young man’s tragic death and of my warning, they filed a lawsuit against me, charging me with negligence for not doing more to prevent the young man from gazing at his smartphone while walking along the trails of the Canyon. This happened two years ago, and I am still defending myself against these charges. My attorney is advising me to settle for $20,000 to close the matter.
Don’t believe you.
Well, duhhh, ultrasubcretin.
David Benson – I believe him. We lose an average of 10 people a year at the Grand Canyon to sheer stupidity.
The “Digital Zombie” was wearing dark sun glasses. Could be depth of perception issue.
Time for an eye exam.
When you walk, just walk!
Pay attention to every hazard.
— freely transliterated from “Instructions for the Zen Cook”, by Dogen.
I think that accidents happen, and always placing blame on people to make money is a mental illness that attorneys have contracted and fan the flames of.
There is another word that rhymes with liability: STUPIDITY.
How can she be legally blind if she can read a cellphone? I rather doubt that her vision is all that impaired. If she can read a cellphone should should be able to see the large sidewalk barriers that appear to be about three feet high. The issue isn’t her vision; it’s that she simply wasn’t watching where she was going. I vote “no liability.”
As an avid bicyclist with some experience of having to avoid people “walking blind” (favoring their phone display over looking where they walk), I could not agree more.
This was my first thought. Also looks a little fake the we she goes over the barrier. Can a cased be made against her that her stupid act endangered the workers working on a gas line?