Tort/Negligence – Wrongful Death – Contributory Negligence – Sledding Downhill Backwards – Above-Grade Manhole Cover

Waddell v. Metropolitan Sewerage District of Buncombe County. (Lawyers Weekly No. 10-07-0882, 12 pp.) (Sanford L. Steelman Jr., J.) Appealed from Buncombe County Superior Court. (J. Marlene Hyatt, J.) N.C. App.

Holding: After a three-inch snowfall, a manhole cover – which stuck up a foot and a half above the ground on the uphill side –  was plainly visible when plaintiffs’ decedent decided to sled down the hill on an inner tube which she knew she could not steer. The decedent sledded backwards into the manhole cover and died from her injuries. The decedent was contributorily negligent.

Summary judgment for defendants is affirmed.

It is the duty of the appellant to ensure that the record is complete. Because plaintiffs’ counsel did not fulfill this duty, we tax the costs of this appeal against plaintiffs’ counsel, personally.

The original plans for the design of the manhole provided that it be at ground level. However, Daniel Cook, defendant Metropolitan Sewerage District of Buncombe County’s (MSD’s) inspector, testified, “During the time of the inspection, the slope of the land was such that I was afraid the manhole would get covered up by erosion or grading or some activity.”

Cook added, “At the time of inspection on the uphill side of the manhole, the ground was encroaching on the lid.” Cook explained that, if the manhole got covered with leaves, dirt or other debris, MSD would be unable to locate the manhole. Cook ordered that the manhole be elevated.

Plaintiffs’ expert testimony about whether MSD and defendant Civil Design Concepts, P.A. (CDC) breached the applicable standard of care was equivocal, at best. Even assuming arguendo that MSD and CDC were negligent, plaintiffs’ claims fail because the decedent was contributorily negligent in sledding down the hill.

The elevated manhole was an open and obvious condition. The manhole was approximately one and a half feet above ground on the uphill side and two and a half feet above the ground on the downhill side. The manhole was four feet in diameter. Plaintiffs had lived at the residence for approximately two months.

Plaintiff Timothy Waddell testified that the manhole was visible from his back porch. The manhole was not surrounded or obscured by any trees or bushes. On the day of the accident it had snowed about three inches. Mr. Waddell testified that on the day of the accident, as he stood on the edge of his backyard, his wife and the manhole were clearly visible.

MSD had no duty to warn the decedent of an open and obvious danger as to which she had equal knowledge prior to the injury. Even if MSD had breached a duty to warn, plaintiffs ‘claim against MSD on this basis would be precluded by the decedent’s contributory negligence.

The manhole was stationary, positioned at the bottom of a 100-150 foot hill, and was clearly visible from plaintiffs’ back porch.

Further, the decedent disregarded the warning written on the inner tube and chose to sled down the hill. The decedent knew that the manhole was at the bottom of the hill and that the inner tube was impossible to steer once it was in motion. As a result of her decision to sled down the hill, the decedent ran into the stationary manhole and subsequently died from her injuries.

Plaintiffs’ claims against MSD and CDC are barred by their decedent’s contributory negligence.

Affirmed.