[tgwriter]

My daughter stepped into an open manhole while walking down a city street after dark. She sustained non-life-threatening injuries and also broke her cell phone, which she was not using at the time. We asked the city to pay for a new cell phone and they refused, claiming that they were not negligent. The manhole cover had apparently been stolen, probably as a prank. The street was near a major college campus. It seems that in a college environment where pranks are common, the city should especially ensure that these covers are not so easily removed. We have several witnesses, and photos of her injuries. What can we do?

[AK lawyer]

You asked for the value of the cell phone but didn't ask for compensation for her "non-life-threatening injuries"? Apparently they were not only "non-life-threatening" but trivial as well.

If you can prove that these manhole covers have been stolen many times before, and that there is an effective way of securing them from pilferage, sue.

[JudyKayTee]

I'm a liability investigator in NY - I don't know where you are.

Yes, I find it odd that your concern is replacing the cell phone and not being compensated for her "non life threatening injuries." What exactly were her injuries?

In NY the municipality must be given notice if a claim is going to be filed. I trust your State has a similar Statute. Are you in complaince?

I can tell you what the City is going to look at - were they aware that the manhole was open; how many other people pass there every day and didn't fall in; if she wasn't on her cell phone, why was it damaged; she was apparently aware that removing the manhole cover was pretty much a College sport so she needed to have more than the usual diligence when she walked in that area; if notification was made that the cover was missing, did the municipality have sufficient time to remedy the problem; was there something the municipality could have done so the cover couldn't be moved, but they didn't do it (AK's question).

Sure, sue for her injuries and the replacement cost of the cell phone. Just be aware of what the other side is going to argue.

[tgwriter]

The injuries consisted of scrapes/bruises on both legs. They've healed, with minor scarring. She took pictures of her injuries. She was carrying the cell phone in her hand, but not using it. We were simply trying to be reasonable in asking for compensation only for the cell phone. The manhole was on the sidewalk near the curb. A parked truck blocked the street lighting. I would guess that the cover had been taken within the previous 24 hours, but manhole cover theft has become a serious problem in most cities, not just from pranks, but mostly from metal scrappers. That, and the fact that locking covers are available, leads me to believe that they should anticipate theft and do everything they can to prevent it. A resident of the neighborhood placed a chair over the manhole immediately after the incident, and the cover was replaced within a couple of days. She followed the city's protocol in filing the claim with the legal department. It was in Indiana.

[JudyKayTee]

Do I agree with you, if something can be done it should be done? Most definitely BUT I would guess the argument is going to be that the City doesn't have sufficient funds to lock down all the manholes. Your daughter's "minor scarring" is "worth more" (hate to put it that way) than the broken cell phone.

Unfortunately guessing at something (when the cover was taken) isn't helpful. Now, if your daughter could talk to people in the neighborhood, find out when it was taken, did anyone report it BEFORE her accident, well, then there's a case here but, of course, there isn't going to be a lot of money involved.

Should they anticipate theft? Sure. Should they do everything they can to prevent it? Definitely. Why don't they? Good question.

If this had been very serious injuries the City (if there's proof of past history) would have quite a claim on its hands.

Did your daughter put the City on notice of her accident and her claim for damages in writing?

And, yes, the City may argue that it's better for a plow to lift a cover than snap when the cover is locked in place.

I've heard all sorts of arguments in similar situations from different points of view. I can really argue in either direction. Your problem is going to come down to the dollar amount.