Texting teen falls in hole, famiy intends to sue
 

GC-Lawyers/law students, would the family actually have a case?

Story

I think a lot depends on New York's act concerning tort claims against the state or city. That aside, I think she's going to have some serious issues with contributory negligence. I don't think it's much of a case. And it doesn't seem that the girl suffered any major damages. It sounds like the mother is a very simple person who sees a payday in her future.

On these facts, I'd probably decline to represent her.

That's what I was going to say - contributory negligence could be a huge issue, especially if NY is a state (I don't know that it is) where either:

1) Any comparative negligence knocks you out of damages, or;
2) More than 50% comparative negligence knocks you out.

Plus, there's case law in some states (like CT for example) where courts have found that individuals have a responsibility to keep a good lookout for their surroundings.

Either way I'd agree, she doesn't have a great case.

What sort of duty of care do municipal workers owe to the public when they're maintaining municipal facilities (like streets) which the public may happen upon? Just reasonable care? Or something more?

That's common sense. It's ashame a law has to be on the books to state that...then again common sense seems to go futher down the drain with each generation so I guess I shouldnt be suprised.

You'd think they would have it marked and covered with a board if they werent presently working on it. If they were working on it, they should probably have it marked with someone standing around to prevent such an accident.

heh, I half expected this to be a story from The Onion.

I guess both sides are kind of at fault... the cones should have been down before the hole was open and.. well.. basic awareness should have kicked in on her side.

"Watch where you're going" is a lesson normal people learn before they're potty trained.

Seems she forgot the basics. Texting must have been more important.

And we wonder why our courts are overburdened.

No our courts are overburdened because people can get away with stupid stuff like this. Remember the McDonald's case?

Yes, that is an excellent example of stupid! :)

Actually, read up on the McDonald's case. There was nothing frivolous about it.

Exactly - if you want cases of frivolous lawsuits, there are plenty of other examples.

Just read up on it. I didn't realize how serious the woman was hurt or how much a difference there was between McDonalds and other place's coffee.

You have to realize that the McDonald's case, the 'missing pants' case and others are regurgitated to the media by special interest groups who are usually seeking to drive public policy to protect their wealthy clients from civil liability in courts and then reprinted as 'news.' The spin becomes 'fact' which makes people want to support politicians who support things like tort reform.

99% of the time, when you hear about frivolous lawsuits, they are one suit out of millions and you're only getting the facts someone wants you to have.

Yup, it ends up being part of a larger debate between the trial lawyers associations and the tort reform groups.

Everything Kevin and KSigkid = what I would say.

And the tort reform groups are far smarter and far more strategic about getting their message out. By the time one of these stories makes it to the media, the public discussion has already been framed around an essentially stacked deck.

Trial lawyers interest groups could be a little more proactive by promoting stories of insurance company abuses (and perceived abuses). We just can't because we're too busy making money.

Haha - then there's those of us who work in litigation for insurance companies. You could call us fairly conflicted individuals, haha.

was there any warning or sign stating that it was open?

From the story that texas princess posted, it sounds like the workers had stepped away to get the warning cones when the girl fell. Talk about timing.

yeah. It looks like both parties share the responsibility for this. Though one has to wonder if she would have even noticed the cones. I mean she didn't see a foot wide hole in the floor.

The teen was dumb. You don't walk without looking where you're going (you don't drive without looking where you're going).

Lesson learned on the part of the teen. Maybe the workers will be taught to keep one person on the lookout for idiots while the rest get the cones. The end.

Yeah, and then the lookout worker who yelled at her to watch where she was going would probably have been sued for "harassment."

So, we're back to the teen just being dumb. LOL.

I wonder, what if the teen was looking forward and not texting, but still didn't notice? Would that make a legal difference beyond being clumsy and not observant?

The kid has a duty to exercise the amount of reasonable care attributable to a child of her age, intelligence and maturity. I don't think she gets there. But legally speaking, being clumsy versus being not observant are just two different examples of not showing reasonable care.

The biggest issue is that aside from maybe a change of clothes and her cell phone, she has no damages that I can tell. Her case is definitely not helped by her parents proclaiming so early on that they're going to file a lawsuit.

You'd better bet that as counsel for the defense, I'd have a hell of a fun time with those statements. I might even build my case around those statements.

GC legal buffs are the best.

* - not a lawyer.

I just read up on it and agreed the woman should have sued for damages, and the other facts the case brought out regarding McDonalds knowing their coffee was being served way too hot was interesting.

But at the same time (and I am by no means a fan of McDonalds) wouldnt it be common sense not to put a cup of hot coffee between your knees/legs for any reason? Most cups arent strong enough to not bend and spill with the pressure of the legs/knees to hold it in place. Why didnt the son hold the coffee for her so she could put the cream and sugar in it? Didnt he park the car to allow her to do that? Did she not feel the hotness of the coffee through the cup? I get coffee all the time from Starbucks that is too hot to drink. How do I know that? I feel the heat through the cup when they hand it to me. I put it in my cup holder for a little bit to cool some before drinking it because I dont want to burn my mouth.

Yet. ;)

I do think the city has some blame in this. What if it had been a blind woman who fell in the open hole? Or an elderly person with no peripheral vision? They can't just leave an open hole in the street/sidewalk and expect that everyone will/can see it and avoid it. One person should have stayed by the hole while the other went to go get cones.

You're talking about a completely different situation there, but as far as your hypotheticals, the same general issue that Kevin and I mentioned above would apply (if it's the law in NY). A person has a responsibility to use their own judgment and senses to hazards, if at all possible. A blind or elderly person may have reduced sensory perception, but they're still responsible for adjusting for that limited sensory perception. The fact that an injured individual may be elderly or blind doesn't automatically mean that the city would be liable.

Plus, you may have the same sovereign immunity problem regardless of the pre-existing condition of the injured party.

That's awesome, that made my day. Thanks Tess.

i know workers were out there, but did it also state the time of day this happened? is there any possibility that construction was being done at night time?

Exactly. A blind person shouldn't (and normally wouldn't) be crossing a city steet without a guide -- human or canine -- that would see the hole and avoid it or a cane, which would alert her that there was no street where she was about to step.