Minibikes & Manhole Covers

September 15, 2009

By: David K. Jaffe

Injuries Caused by Raised Manhole Cover

In a 2007 case,[1] the plaintiff, a mini-bicyclist, sued defendant, a paving contractor that recently repaved a road under an agreement with the City of Meriden, alleging that he was injured when his minibike struck a manhole cover that was raised approximately two inches above the street and that the contractor was negligent in causing his injuries. The court held that the contractor owed no duty to make the manhole safe for the mini-bicyclist and granted the contractors motion for summary judgment.

The Connecticut Supreme Court has often observed that the law does not recognize a duty in the air.[2] No matter how horrendous an injury the plaintiff may have suffered, that plaintiff still must jump through all the legal hoops before he can recover.

In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury. Duty is a legal conclusion about relationships between individuals, made after the fact, and is imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. Although the determination of whether a duty exists is ordinarily a question of law, under some circumstances, the question involves elements of both fact and law.[3]

Liability for an injury due to defective premises does not depend on title, but on possession and control.[4] The word "control" has no legal or technical meaning distinct from that given in its popular acceptation, and refers to the power or authority to manage, superintend, direct or oversee. The question of whether a defendant maintains control over property sufficient to subject him to liability normally is a jury question. Where the evidence is such that the minds of fair and reasonable persons could reach different conclusions on the question of control, then the issue should properly go to the jury for its determination.[5] It is this question of possession and control that determines who owes the plaintiff a duty in a premises liability case.[6]

In Guerra v. City of Meriden, the plaintiff, Bismark Guerra, filed suit against defendant CT Paving, LLC and the City of Meriden,[7] alleging that on July 29, 2004, at about 9 p.m., he was injured when the minibike he was riding on North Second Street in Meriden suddenly struck a manhole cover which was raised approximately two inches above the street. He alleged that the street had recently been paved by CT Paving pursuant to a contract with the city.

The plaintiff further alleged that his injuries were caused by CT Paving in that it: (1) failed to warn him of the raised manhole cover; (2) failed to reasonably inspect the manhole cover; (3) left the premises in the aforesaid dangerous condition of the raised manhole cover; (4) caused or allowed and permitted the highway to be dangerous for the plaintiff; and (5) failed to remedy the dangerous raised manhole cover, when it was reasonably necessary under the circumstance.

CT Paving argued that it owed no duty to the plaintiff because it did not possess or control the street where the plaintiff's injuries occurred, did not create the defective condition, and did not have any duty to erect or maintain safeguards, warnings or signs in the vicinity of the manhole.

The evidence submitted in the Guerra case is as follows: CT Paving was under contract with the city to pave city streets. Before CT Paving began paving North Second Street, the city had excavated the old blacktop, which involved stripping the street down completely, leaving just a layer of process stone, with manholes and catch basin exposed several inches above the stone. CT Paving was not involved at all in the excavation process. The city put large orange signs at each end of the street to warn the public that there were raised structures in the roadway, and also painted the manholes and catch basins orange and placed a cone on each one.

CT Paving began paving North Second Street on the morning of July 29, 2004, the same date as the plaintiff's injuries. The paving required two courses of blacktop, both of which were scheduled to be done on that date. City employees were present the entire time that CT Paving was doing the paving. After CT Paving had completed the first course of blacktop in the early afternoon, however, it was discovered that there was a "soft spot" in the ground below the asphalt that would require additional excavation. The city instructed CT Paving to stop paving so that the city could investigate the soft spot and do any necessary excavation. Because only one layer of blacktop had been applied, the manholes and catch basins still extended above the pavement at that time. After CT Paving left the work site on July 29, the city let the asphalt cool down for one or two hours and then reopened the street to traffic and placed cones back on the manholes and catch basins. CT Paving returned at a later date to apply the second course of blacktop.

The paving work was done pursuant to a work order and based on CT Paving's contract with the State of Connecticut. The purchase order did not address responsibility for the manhole. Both the city and CT Paving understood, however, that diversion of traffic, as well as all warnings and other safety precautions related to the condition of the street generally, and the condition of the manhole in particular, were the responsibility of the city and not CT Paving. The sole involvement of CT Paving in the project was to do the paving.

Based on this undisputed evidence, the court found that there was no genuine issue regarding control and possession. Pursuant to the agreement with the city and CT Paving, CT Paving was only responsible for paving the street, and city employees were present at all times during the paving. In addition, CT Paving had been instructed to discontinue paving and had left the street, which was still closed, in the control of the city, which subsequently reopened it to traffic prior to the plaintiff's injury. The court thus found, as a matter of law, that CT Paving did not owe the plaintiff a duty, based on possession and control, to keep the street in a reasonably safe condition.

The court further found that CT Paving did not have a duty based on the theory that it created a dangerous condition in the road. Although a person creating a dangerous condition in a highway does have a duty to use reasonable care to protect others from the condition,[8] the undisputed evidence showed that the condition complained of - the raised condition of the manhole above the surface of the road, was created by the city, not CT Paving.

The court additionally found that there was CT Paving did not show any failure to exercise reasonable care in the paving of North Second Street. There was no claim that CT Paving was in any way negligent in paving the street. The plaintiff claimed that CT Paving should have taken additional steps between applying the two courses of blacktop to ensure the safety of the plaintiff and other individuals traveling on the street during the interim. The undisputed evidence made clear, however, that CT Paving's contract with the city did not require CT Paving to take any such safety measures, which were mutually understood to be the responsibility of the city. Accordingly, CT Paving did not have any duty as a contractor to make the manhole safe for the plaintiff.

While it may seem that there should be a remedy for every wrong, and that the plaintiff should have been entitled to protection, "this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the water, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree."[9] Because foreseeability is a necessary component of duty, the absence of foreseeability forecloses the existence of a duty of care. The converse, however, is not true: the conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. A further inquiry must be made, for duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. "The law does not recognize a duty in the air."[10]


[1] Guerra v. City of Meriden, 2007 Conn. Super. LEXIS 3303.

[2] See, e.g., Waters v. Auturoi, 236 Conn. 820, 826 (1996).

[3] See LaFlamme v. Dallessio, 261 Conn. 247, 251 (2002).

[4] Farlow v. Andrews Corp., 154 Conn. 220, 225 (1966); see also Lin v. AMTRAK, 277 Conn. 1, 16 n.10 (2006).

[5] Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn. App. 766, 773-74 (2005).

[6] See, e.g., LaFlamme v. Dallessio, 261 Conn. 247, 251 (2002).

[7] The plaintiff subsequently withdrew the action against the city of Meride3n.

[8] See, e.g., Calway v. William Schoal & Son, Inc., 113 Conn. 586, 590 (1913).

[9] Waters v. Auturoi, 236 Conn. 820, 827-28 (1996).

[10] See, e.g., Waters v. Auturoi, 236 Conn. 820, 826 (1996).