Missing manhole cover ‘open and obvious’
A woman who fell into an open manhole while walking her dog cannot sue the contractor whose employee was on his way to her house to warn her about the manhole. The Supreme Court of Virginia agreed on March 30 the case could be thrown out on contributory negligence.
Elizabeth Badawy left her townhouse to walk her dog in April 2009, along the same route she had taken for years, she said. Three employees of defendant Classic Drainage were working to repair a neighbor’s downspout, as Badawy passed by two of them. The third worker went to Badawy’s house to warn her about the open manhole, but got no answer.
On Badawy’s return trip, another person stopped to pet the dog and Badawy began walking backward, struggling to control the dog. She fell into the open manhole, which was not marked with warning signs or barriers.
The Supreme Court agreed that a pedestrian’s contributory negligence ordinarily is a question of fact, but not in this case. Badawy’s undisputed conduct of walking backwards for two to three minutes, tugging her dog on a leash for about 40 feet without turning around, amounted to contributory negligence as a matter of law. Justices LeRoy F. Millette Jr. and Justice William C. Mims dissented from the unpublished order affirming judgment in Badawy v. Classic Drainage Inc. (VLW 012-6-060).
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