Summary judgement denied by judge in manhole lawsuit

James Sloan jsloan@ptleader.com
Posted 10/14/21

There will not be a speedy finish to the 2020 lawsuit filed by a tourist from Oak Harbor who fell into a manhole in downtown Port Townsend.

Jefferson County Superior Court Judge Keith Harper …

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Summary judgement denied by judge in manhole lawsuit

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There will not be a speedy finish to the 2020 lawsuit filed by a tourist from Oak Harbor who fell into a manhole in downtown Port Townsend.

Jefferson County Superior Court Judge Keith Harper rejected a request for an immediate decision that Interwest Construction Inc. was negligible in the June 2018 fall that left Shenna L. Bomark of Oak Harbor with arm, leg, and back injuries.

Bomark, 35, was visiting Port Townsend with her family two summers ago when she stepped on a manhole cover near the intersection of Water and Polk streets, hyperextending her right knee and landing on her tailbone.

Twenty-one months later, she filed a lawsuit against Interwest, a construction company operating in the area where she fell at the time.

The lawsuit does not set an amount for the level of financial damages sought, with the amount to be determined at trial.

Bomark has also filed a damage claim against the city of Port Townsend for more than $150,000 to pay medical bills related to the fall, and for general damages.

Joe Schodowski, Bomark’s attorney, had asked the court for a summary judgment in the case, which, if approved, would’ve stopped the lawsuit short of a trial.

But in his decision in early October, Harper dismissed the summary judgement as facts surrounding the lawsuit were disputed between Schodowski and Interwest’s attorney, Riley Lovejoy.

ATTORNEYS square off

Schodowski and Lovejoy made their arguments over who should or shouldn’t be held liable during a hearing earlier this month in Jefferson County Superior Court.

Bomark’s attorney said the legal concept of res ipsa loquitur (Latin for “the thing speaks for itself”) shows that the fact the incident even occurred is enough evidence of negligence by Interwest and the employees who were working near the manhole.

“Common sense tells us that people don’t fall through manhole covers,” Schodowski said. “If there’s ever a case for res ipsa to apply, it’s this one.”

Lovejoy, however, said Interwest had nothing to do with the manhole cover, and that the company was not hired to do any work on the manhole.

“There is no reason why Interwest has been identified, they had nothing to do with the vault. They never touched the lid [of the manhole cover],” Lovejoy said.

“[Schodowski] is trying to fit a square peg into a round hole,” he added.

Schodowski had claimed construction workers were negligent with the manhole cover, and this never would have happened if the company had acted responsibly.

“This was in their control,” Schodowski said of the manhole cover.

“There was no caution tape, cones, or candles placed” around the manhole cover, he noted.

After hearing Schodowski and Lovejoy’s arguments, Harper made the decision to deny the motion for a summary judgment in the civil lawsuit.

“There’s three elements to res ipsa loquitur,” the judge said. “I’m just not in a position to say that those elements of this are established in a way that summary judgement would be appropriate.”

BOMARK’S FALL

Around 7:30 p.m. June 23, 2018, Bomark was walking westward on the Water Street sidewalk with around 10 relatives.

On her way to the ferry, she crossed an underground utility junction on the southwest corner of Water and Polk streets, and stepped on an improperly secured manhole cover.

As Bomark stepped on the cover, it tipped over and her left leg slipped through the opening while her right knee hyperextended. Her right shin and left forearm smacked the concrete as she landed on her tailbone.

She immediately experienced pain from the fall, with her tailbone, right knee, and lower back most affected. Right after the fall, Bomark’s brother snapped pictures of her stuck in the manhole, before understanding how much duress she was in.

After being helped back up from her relatives, she made her way to the ferry, and reported the incident to the Port Townsend Police Department’s non-emergency line.

Bomark examined her injuries, and observed multiple bruises and abrasions on her limbs, along with soreness in her lower back.

Later on, she received medical treatment for the injuries, totaling over $26,000 in bills, according to documents submitted to the city.

With limited mobility after the fall, she was unable to work again until November 2018, with reduced hours based on her physical limitations.

She was eventually terminated after her employer permanently closed their business in June 2019. She hasn’t found work since.

Bomark is seeking $150,000 for medical bills, lost wages and earning capacity, general damages, and loss of enjoyment of life due to her inability to sleep for a complete night or perform long-distance cardio exercises.

She also claims the fall has led to constant stress and anxiety among other issues because of the fall.

WHAT HAPPENS NEXT?

With the summary judgement denial, Schodowski is looking to gather more evidence in favor of his client, as he looks to set another court date.

“These [summary] motions are tough to win,” Schodowski said. “Where we lost was the issue of if Interwest had exclusive control of the manhole cover.”

Although the summary judgement denial is disappointing for Schodowski, the case is far from over, he said, as he looks to depose witnesses and city employees to further argue that Interwest was responsible for and in control of the manhole at the time of Bomark’s fall.

“We lost the battle, but the war is far from over,” he said. “Losing summary judgement didn’t affect my confidence and belief in this case whatsoever.”

As Schodowski continues the discovery process, he will look to set another court date, which could prove to be tough considering civil cases have been moved to a lower priority for courts due to COVID.

“Where we’re at in the process is, it sort of slows things down,” he said. “Our hope is to set a jury trial some time in the spring .”

On Interwest’s end they will look to find more evidence that they were not responsible for the manhole cover, and did not operate on it around the time of Bomark’s fall.

Lovejoy and associates declined to comment, saying they “do not publicly comment on matters of litigation.”

Comments

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Leader alum...

The word "judgment" is misspelled in both the headline and the text of this story about a request for a summary...judgment.

Don't Leader writers and editors use spellcheck? Or did someone add "judgement" to acceptable spellings in their writing software?

Friday, October 15
Dage Corvish

It is a such a little thing, the letter e.

Judgment and judgement.

Both are acceptable in British English, but we are in America. Only one is generally acceptable in American English.

It is really a minor thing, but at least be consistent, not moving back and forth as if undecided.

Maybe next year, your name could be in that award list.

Wait. Kentucky Press Association? Never mind. Carry on.

Friday, October 15