A city should have anticipated a manhole cover could go missing, and its absence could cause harm, the Court of Appeals held in Ogier v. City of Bellevue, No. 79132-0-I (Wash. Ct. App. Mar. 2, 2020).
In that case, a manhole cover was removed from a storm drain in the roadway, and was on the sidewalk. The uncovered drain was hard to see in the partially- lit street. When a driver passed over the opening, the bumper came off her car, and she was injured. She sued the city for negligently failing to maintain the roads.
During discovery, the city’s witnesses testified that the storm drain system contains more than 5,000 covers, and the ones in the roadways should be bolted down. Bolting them down, the city acknowledged, prevents them from dislodging as vehicles drive over them, which could cause damage to property and personal injury. However, a common tool can be used to remove the bolts.
The covers do disappear or loosen at times. The city inspects the storm drain system, including the covers, every five years. The city also has a 24-hour work hotline, and whenever a problem with a storm drain cover is reported over the hotline, a crew responds immediately. The city receives a few such calls per year. The most recent inspection of the subject area had not revealed any problems with the cover, and plaintiff was the first to report it missing. Likewise, no reports of missing or loose covers existed for that area.
Although a permit is needed for work on the manholes themselves, permits are neither common nor necessary to remove the covers for inspections. In the area near the accident, no permits had been issued. Nor had the city worked on covers in that part of the storm drain system.
The city hypothesized that the cover had not been knocked off by a moving vehicle but rather was the result of vandalism. It had no actual notice of the defect. Therefore, the city moved for summary judgment, challenging the existence of a duty to the plaintiff. The trial court granted the motion.
The Court of Appeals reversed. A municipality has the duty to maintain its roadways in a reasonably safe condition for ordinary travel. If it fails to correct a defect that it knows about, it can be liable for breach. Actual notice is not necessary, however, if the municipality should have reasonably anticipated the dangerous condition could develop or should have discovered the condition through the exercise of reasonable care.
The court found that the plaintiff may be able to prove to a jury that the city had constructive notice of the hazard and breached its duty to keep the roadways safe when the city failed to correct the hazard. The evidence showed that the city knew that anyone able to shift the 100-pound covers can remove them, that they do go missing without warning, that the city does not check or monitor the manholes, and that the cover should have been bolted down but was not. Therefore, the question could not be decided on summary judgment.