In this interview, Elan Wurtzel, a seasoned personal injury attorney, shares the story of a complex personal injury case involving a restaurant owner who was injured after tripping over a raised manhole cover while making a delivery. Elan details the challenges of holding municipalities accountable without prior written notice of defects and highlights how discovering a private contractor’s responsibility led to a successful outcome. Additionally, he offers valuable advice on reporting dangerous conditions to local governments, emphasizing the importance of taking action to protect community safety.
Please tell us about the case.
Elan Wurtzel: I represented a gentleman who was a restaurant owner. He delivered food to one of his customers in Glen Cove in October 2020. He drove to the customer’s home, parked his car, and made the delivery. While walking back to his car, he tripped and fell over a manhole cover in the roadway. His car was parked next to it. It was dark, so he didn’t see it. He tripped, fell, and injured his shoulder. He had to undergo surgery and was out of work for several weeks. When he returned, he had modified duties, and it took him about six months after the accident to fully recover. Workers’ compensation covered all his medical care and the time he lost from work, which was significant.
What was challenging about the case was determining who maintained this manhole cover. Typically, it’s the municipality’s responsibility, so we made claims against the City of Glen Cove and Nassau County because those were the governmental agencies responsible for the roadway. When you make a claim against a municipality, it’s required that they receive prior written notice of the defect before the accident happens. We searched with the City of Glen Cove and Nassau County, but there were no records of any prior written notification about this particular manhole cover defect.
You might think that would end the case—nothing more we could do. However, we discovered that Nassau County had contracted with a private utility company, which was responsible for maintaining the countywide sewer systems. The manhole cover was part of the waste collection system, and the contract imposed various duties on the contractor, including maintaining manhole covers in the City of Glen Cove on local residential streets. As it turned out, the contractor had visited the area in the ordinary course of their business to service the systems but never took note of, or action on, the tripping hazard that this manhole cover presented.
What do you think were the key factors that contributed to the incident? Were there precautions that could have been taken?
Elan Wurtzel: Manhole covers are referred to as “street hardware.” Street hardware can include utility manhole covers, a water valves, or electrical fixtures. The general rule is that street hardware must be flush with the surrounding road surface, which means no tripping hazard. Anything half an inch above the road surface is generally considered a tripping hazard. In this case, the manhole cover was raised above the roadway level by more than half an inch. When my client was walking back to his car, his foot hit the edge of the manhole cover, and he went flying.
It’s an interesting case because, typically, these claims don’t succeed without prior written notice of the defect. However, we were fortunate to learn that a private contractor maintained this area, or at least was responsible for it. The requirement for prior written notice doesn’t apply to private companies or contractors.
This is an ongoing issue with all roads and sidewalks. There’s a lot of wear and tear, and the road settles, potholes are created, construction and repair work leaves defects.
Elan Wurtzel: The dangerous manhole cover wasn’t a condition that occurred a week or even a month before the accident. It likely developed years before the accident and got worse over time. It shows that corporations are getting paid a lot of money to provide services, but they’re not always doing their job by inspecting their equipment and remedying dangerous conditions. Another thing to consider is that homeowners living in that area could have reported the hazard. They walk past it all the time and have the opportunity to call the county, the city, or the contractor and say, “Hey, there’s a dangerous condition out there. You need to check it out and fix it.”
For example, near my office there was a dangerous pothole in the middle of an active crosswalk. As a lawyer, I sent a certified letter to the county and town, saying, “Hey, there’s a dangerous pothole in the middle of the crosswalk. Please fix it.” Complaining can result in positive action that makes your neighborhood safer. Surprisingly, the pothole was repaired and the crosswalk was made safe.
What was the outcome for your client?
Elan Wurtzel: We were able to achieve an excellent recovery for him. We settled the case for a fair and reasonable amount, intended to compensate him for his injuries. Thankfully, he made a fantastic recovery. Yes, he had six difficult months, but there were no permanent effects from the injury, and the surgery was successful. Everyone was happy with the outcome.
Governmental entities at all levels often will impose prior written notice requirements as a condition of a successful claim against them for dangerous conditions. The requirements differ between such entities. We all live in places where there are dangerous conditions in the road, sidewalks, playgrounds and other places. We have the ability to make our neighborhoods a little bit safer It’s not enough to just make a phone call; you must take that extra step and send a written complaint to the appropriate governmental agency. Sometimes, it doesn’t happen correctly, even when you try to do the right thing. For example, in some places, like the Town of Oyster Bay, photographs of the defect must be accompanied with a notice of defect. It’s not enough to just send a letter.
How can someone reach out to the Law Offices of Elan Wurtzel?
Someone could call my office anytime. We can check the requirements and help you either send a letter or compose one, sending it to the right place. That way, your neighbors and friends are protected, and at least you’re allowing the local government to fix a dangerous condition.
