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This is the kind of headline that tends to aggravate reasonable people. Apparently, a New York teen fell into a sewer while she was texting. See story at: City personnel had removed a manhole cover while they were flushing out the sewer. Fortunately, the teen suffered only scrapes and bruises. Her mother now is promising to sue.

I don’t know about the law in New York, but in Alabama, this young lady will find it very difficult to get any lawyer to take her case because, quite frankly, it’s a loser.

First, even assuming that the City was negligent, and it sounds like they were given that pedestrian traffic should have been diverted when the manhole cover was taken off, or failing that, they should have placed cones or warning signs around the uncovered hole to prevent someone from falling in – the teen cannot recover if she too was negligent, and her negligence was a proximate cause (but for cause) of the incident. In other words, even though the City was negligent, because the texting teen also was negligent, there will be no recovery. I simply do not believe that many plaintiff lawyers will conclude that they can convince 12 out of 12 jurors that being oblivious to your surroundings because you are busy texting (even something as important as where you are planning to "chill" later on) is not negligent conduct and that but for that conduct the incident would not have happened.

Can this teen sue? Sure. Is she likely to find a lawyer willing to work on this matter with almost no chance of recovery? Pretty unlikely. If she does sue, will the suit result in her receiving any money? At least in Alabama (and I suspect the same is true in New York as well), the chances are virtually nil.

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