In April 1992, Roman finished working inside one of the manholes and had to make sure it was covered before leaving the worksite. WRI workers had left for the day and, according to Roman, had left the covers about 25 feet away from the hole. Roman said the covers were typically left within a foot or two of the hole.

Roman decided to move the covers himself and, using a manhole hook, manually moved one without hurting himself. He then began to move another one when he felt back pain and had to stop.

He suffered from two herniated discs, had to undergo surgery and receive physical therapy. The accident left him disabled and prevented him from working.

In February 1999, a jury returned a verdict of $1.9 million for Roman and $950,000 for his wife’s loss-of-consortium claim. The jury, however, found Roman 44 percent responsible and WRI 56 percent responsible.

The trial court denied post-trial motions and molded the verdict to fit the comparative negligence of the parties. WRI appealed.

WRI argued on appeal that it did not have a duty to Roman and therefore a nonsuit should have been entered.

The court said that WRI had a contractual duty to supply and install the manhole covers for Bell Atlantic and that evidence presented at trial supported the fact that the WRI employees breached that duty.

The court noted that a subcontractor has a duty of care to other subcontractors working on the same site much like the duty a landowner has to protect visitors from “foreseeable harm.”

WRI argued, however, that its duty did not apply where there is an “open and obvious” danger, meaning that Roman had assumed the risk by choosing to move the manhole covers himself.

The court, citing Staub, dismissed WRI’s argument, ruling that the trial court was correct not to apply the assumption of the risk principles, instead giving the jury the question under a comparative negligence theory.

Other Issues

WRI also asked the appeals court to rule that the trial court was wrong not to declare a mistrial after the jury heard testimony about Roman receiving social security disability benefits.

The appeals court said the evidence was not “improper or prejudicial” because WRI was offered the opportunity to question Roman on the issue and the jury was given a curative instruction.

The appeals court shot down seven other issues, including questions of expert testimony, causation and jury instructions.

Tracy Blitz Newman contributed to this report.