IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
) NANCI MILLSON, ) No. 67931-7-1 ) Appellant, ) DIVISION ONE ) V. ) ) CITY OF LYNDEN, a municipal ) PUBLISHED corporation; TIM NEWCOMB and ) HELEN NEWCOMB, ) FILED: April1. 2013 ) Respondents. ) )
Cox, J.- A municipality has a duty to pedestrians using its sidewalks to
keep the sidewalks reasonably safe for their intended use. 1 Generally '"[a]
pedestrian on a sidewalk who has no knowledge to the contrary may proceed on
the assumption that the city has performed its full duty and has kept the sidewalk
in a reasonably safe condition .... "2 Nor is a pedestrian "required to keep his
eyes on the walk immediately in front of him at all times."3 And the fact that there
is an offset that a pedestrian could see if he looked "does not constitute ...
1 Johnson v. City of Ilwaco, 38 Wn.2d 408, 414, 229 P.2d 878 (1951) (quoting Fritsche v. City of Seattle, 10 Wn.2d 357, 360, 116 P.2d 562 (1941)). 2 Stone v. City of Seattle, 64 Wn.2d 166, 171,391 P.2d 179 (1964) (quoting Blasick v. City of Yakima, 45 Wn.2d 309, 313,274 P.2d 122 (1954)). 3 l!t. (quoting Blasick, 45 Wn.2d at 313). No. 67931-7-1/2
negligence as a matter of law unless there is a duty to look for that particular
thing." 4
Here, the trial court decided, on conflicting evidence in this record, that the
offset in the sidewalk was "open and obvious" to Nanci Millson, who fell after
tripping on the offset and sustained personal injuries. This ruling improperly
relieved the City of its duty to keep its sidewalks reasonably safe for their
intended use. Accordingly, we reverse the summary judgment in favor of the
City.
Millson cross appeals, arguing that the trial court denied her cross-motion
for partial summary judgment on the City's liability. But material factual issues as
to the causation element of her tort claim remain. Partial summary judgment in
her favor is not appropriate.
We remand this matter to the trial court for further proceedings.
In 2007, Millson went for a walk around Lynden, Washington, where she
lives. Millson regularly walked around her neighborhood in Lynden, Greenfield
Village. During her walk, Millson noticed multiple places where the sidewalk had
cracked and lifted. The conditions were so bad in one portion of her walk that
she left the sidewalk and continued on the road.
Though Millson later acknowledged that as a regular walker she knew that
the sidewalk conditions in her neighborhood were not good, she felt that the
streets closer to her house were in better condition. A block away from her
house, Millson continued onto a section of sidewalk on which she had never
walked before. She picked up speed. 4 &,. (quoting Blasick, 45 Wn.2d at 313-14). 2 No. 67931-7-1/3
Millson then noticed one of her neighbors returning home and was
momentarily distracted by his arrival. She tripped on an elevated sidewalk lift,
which was approximately 1.5 to 2 inches high. She fell to the ground, injuring her
hands, shoulders, face, and ribs.
Millson sued the City of Lynden for negligently failing to maintain the
sidewalk in a reasonably safe condition and consequently causing her injuries.
In her First Amended Complaint, Millson joined defendants Tim and Helen
Newcomb and Samuel and Elaine Halbert, based on the City's assertion of an
affirmative defense related to these parties. The Newcombs and the Halberts
owned property abutting the sidewalk offset.
The City moved for summary judgment, arguing that it did not owe a duty
to Millson because the sidewalk offset was open and obvious and known to
Millson. The Newcombs joined the City's motion.
In response, Millson opposed this motion and made a cross-motion for
partial summary judgment as to liability against the City. The court granted the
City and the Newcombs' motion for summary judgment.
Millson appeals.
SUMMARY JUDGMENT FOR CITY
Millson argues that the trial court erred when it granted the City's summary
judgment motion. We agree. There are genuine issues of material fact for trial
as to the City's negligence.
A motion for summary judgment may be granted when there is no genuine
issue as to any material fact and the moving party is entitled to a judgment as a
3 No. 67931-7-1/4
matter of law. 5 '"A material fact is one that affects the outcome of the litigation."'6
When a defendant moves for summary judgment, it bears the initial burden of
showing the absence of an issue of material fact. 7 If a defendant makes that
initial showing, then the burden shifts to the plaintiff to establish that there is a
genuine issue for the trier of fact. 8
This court reviews a summary judgment order de novo, viewing the facts
and reasonable inferences in the light most favorable to the nonmoving party. 9
The City concedes that the applicable review standard is de novo. 10 In its
briefing, the City argues that an additional, different standard applies in this case
because of "findings" by the trial court. But, at oral argument before this court,
the City properly conceded that the sole governing standard for our review of the 1 summary judgment ruling is de novo. Accordingly, Dolan v. King Counti and !n reMarriage of Rideout, 12 on which the City relied in its briefing, are irrelevant to
our analysis.
5 CR 56(c). 6 Eleen Constr.. Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012) (quoting Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780,789, 108 P.3d 1220 (2005)). 7 Young v. Key Pharm .. Inc., 112 Wn.2d 216,225,770 P.2d 182 (1989).
8& 9 Lam v. Global Med. Sys .. Inc., 127 Wn. App. 657, 661 n.4, 111 P.3d 1258 (2005). 10 Brief of Respondent City of Lynden at 3. 11 172 Wn.2d 299, 258 P.3d 20 (2011 ). 12 150Wn.2d 337,77 P.3d 1174 (2003). 4 No. 67931-7-1/5
To prove negligence, the plaintiff must establish "(1) the existence of a
duty owed to the complaining party; (2) a breach of that duty; (3) a resulting
injury; and (4) that the claimed breach was a proximate cause of the injury." 13
Municipalities have a duty to exercise reasonable care to keep their public
roadways and sidewalks in a condition that is reasonably safe for ordinary
travel. 14 Before a municipality may be liable for an unsafe condition it did not
create, it must have notice of the condition and a reasonable opportunity to
correct it. 15 While a city is not an insurer of the personal safety of pedestrians, it
has a duty to keep its sidewalks reasonably safe.
"A test which is sometimes applied to determine whether a city has performed its duty is whether a reasonably cautious man, having the duty to preserve and repair the sidewalks, would or would not consider a particular defect as one where pedestrians might be injured ."[161
The supreme court has made clear that a city is not relieved of its duty to
citizens where an offset is open and obvious. In Blasick v. City of Yakima, the
City urged "that the injured pedestrian 'was not looking where she was walking,' 17 and that the 'depression was plainly visible, open, obvious and apparent."' The
13 Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992). 14 Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002); 6A WASHINGTON PRACTICE: WASHINGTON PATIERN JURY INSTRUCTIONS: CIVIL 140.01 (6th ed. 2012) (WPI). 15 Wright v. City of Kennewick, 62 Wn.2d 163, 167, 381 P.2d 620 (1963); WPI 140.02. 16 Johnson, 38 Wn.2d at 414 (quoting Fritsche v. City of Seattle, 10 Wn.2d 357,360,116 P.2d 562 (1941)). 17 45 Wn.2d 309, 313, 274 P.2d 122 (1954). 5 No. 67931-7-1/6
supreme court rejected this argument as a bar to the City's negligence. 18 In so
doing, the Blasick court reiterated the supreme court's previous holdings as to a
city's duty to pedestrians. "[A] pedestrian is not required to keep his eyes on the
walk immediately in front of him at all times .... "19 Nor does "the fact that there
is something in a pedestrian's path which he could see if he looked and which he
does not see because he does not look, ... constitute ... negligence as a matter
of law .... "20 Instead, a plaintiff's comparative negligence may reduce the
amount of damages she can claim in proportion to the percentage of negligence
attributable to her. 21
If there is a question as to the open and obvious nature of a sidewalk
offset, the supreme court has held that this is a question of fact that should be
presented to the jury:
We have decided in other contexts that, although one must use his faculties and senses to discover and avoid danger, there is not in all instances a positive duty of looking for particular objects in one's path which, admittedly, could have been seen if only the plaintiff had looked. In such cases, we made it clear that it was for the jury to decide whether a reasonable man, in the plaintiff's shoes, would, under the circumstances, have failed to perceive the obstacle in his pathway. [221
18 ~at 313-14. 19 ~(citing Kennedy v. City of Everett, 2 Wn.2d 650, 654; 99 P.2d 614 (1940); Clevenger v. City of Seattle, 29 Wn.2d 167, 169-70, 186 P.2d 87 (1947)).
20 ~(citing Hines v. Neuner, 42 Wn.2d 116, 121, 253 P.2d 945 (1953)).
21 See David K. DeWolf & Keller W. Allen, 16 WASHINGTON PRACTICE: TORT LAW AND PRACTICE§ 8.2, at 252-53 (3d ed. 2006).
22 Hines, 42 Wn.2d at 121 (emphasis added) (citations omitted).
6 No. 67931-7-1/7
This conclusion is consistent with the analysis of McQuillin's treatise on municipal
corporations: "Where comparative negligence is the law, the obvious danger of
the street may be considered by the trier of fact to determine the percentage of
the plaintiff's negligence."23
Additionally, a plaintiff's knowledge of a dangerous condition in a
sidewalk is typically analyzed as a question of a plaintiff's negligence. In Sutton
v. City of Snohomish, 24 Lorence v. City of Ellensburgh, 25 Shearer v. Town of
Buckley, 26 Austin v. City of Bellingham, 27 Apker v. City of Hoquiam, 28 Kennedy v. 29 City of Everett, and Clevenger v. City of Seattle, 30 the supreme court
considered a municipality's duty to maintain its sidewalks. In all of these cases, 31 the plaintiff was injured while walking along a sidewalk or driving along a street.
And, in all of these cases the municipality argued that the injured party did not
exercise reasonable care or should have known of the danger because of his
23 19 EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATION§ 54:156, at 516 (3d ed. 2004). 24 11 Wash. 24, 39 P. 273 (1895). 25 13 Wash. 341,43 P. 20 (1895). 26 31 Wash. 370, 72 P. 76 (1903). 27 45 Wash. 460, 88 P. 834 (1907). 28 51 Wash. 567, 99 P. 746 (1909). 29 2 Wn.2d 650, 99 P.2d 614 (1940). 30 29 Wn.2d 167, 186 P.2d 87 (1947).
!fL. at 167-68; Apker, 51 Wash. at 568; Austin, 45 Wash. at 460; Shearer, 31
31 Wash. at 372-73; Lorence, 13 Wash. at 342; Sutton, 11 Wash. at 25-26. 7 No. 67931-7-1/8
32 prior knowledge. But, in none of these cases did the supreme court hold that
knowledge barred the plaintiff's claim entirely. 33 Instead, the court analyzed this
question as one of a plaintiff's comparative negligence. 34 Thus, in these
cases, the plaintiff's previous knowledge of a danger or unreasonable action was
not a barto her negligence claim, nor did it relieve the municipality of its duty.
"Negligence is generally a question of fact for the jury, and should be
decided as a matter of law only 'in the clearest of cases and when reasonable
minds could not have differed in their interpretation' of the facts." 35 The existence
of a legal duty is a question of law which an appellate court reviews de novo. 36
"[W]here duty depends on proof of certain facts that may be disputed, summary
judgment is inappropriate." 37
Here, the City expressly concedes that it has a duty to maintain its
sidewalks "in a condition that is reasonably safe for pedestrians." Nor does the
City contest that it had actual notice of the sidewalk offset in this case. In 2007,
the City wrote a letter to the Newcombs stating, "It has come to the City's
32 See Clevenger, 29 Wn.2d at 170-71; Apker, 51 Wash. at 571; Austin, 45 Wash. at 461; Shearer, 31 Wash. at 375; Lorence, 13 Wash. at 343-44. 33 See Clevenger, 29 Wn.2d at 170-71; Apker, 51 Wash. at 571; Austin, 45 Wash. at 461; Shearer, 31 Wash. at 375; Lorence, 13 Wash. at 343-44. 34 Clevenger, 29 Wn.2d at 170-71; Apker, 51 Wash. at 571; Austin, 45 Wash. at 461; Shearer, 31 Wash. at 375; Lorence, 13 Wash. at 343-44. 35 Bodin v. City of Stanwood, 130 Wn.2d 726, 741, 927 P.2d 240 (1996) (quoting Young v. Caravan Corp., 99 Wn.2d 655, 661, 663 P.2d 834 (1983)). 36 Degel v. Majestic Mobile Manor. Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). 37 Afoa v. Port of Seattle, 160 Wn. App. 234, 238, 247 P.3d 482 (2011). 8 No. 67931-7-1/9
attention that the sidewalk abutting the following described property ... presents
a potential hazard, and is in need of repair." But, the City claims that it has "no
duty to warn of conditions that are open and obvious to the user." And, it argues,
this is particularly true when the person claiming injury knew about the
dangerousness of the City's sidewalks. Thus, the City takes the position that it is
relieved of its duty because the sidewalk offset where Millson was injured was
"open and obvious" and because Millson had knowledge of the offset.
But this is not the law. As our supreme court has held, generally a
pedestrian's knowledge of the dangerousness of a sidewalk will not relieve a city
of its duty. 38 The same is true of a dangerous offset that is open and obvious.
Here, where there is arguably a dispute whether the offset that caused Millson's
injury was "open and obvious" and whether Millson had knowledge of its danger,
reasonable minds could differ as to the City's duty and consequent negligence.
Thus, the trial court could not properly grant summary judgment.
The City claims that the offset that caused Millson to fall was open and
obvious and that Millson had knowledge of it. But Millson contests these claims.
These are genuine issues of material facts. While the City contends that Millson
knew she "needed to exercise caution in this area ... [and] did so for a while,
and then allowed herself to become distractedr.{ Millson claims otherwise. She
states that she had walked on the street where she fell only a couple of times
before. Further, she claims she had never before walked on the particular
portion of the sidewalk where she fell. Thus, given the factual discrepancies
38 See Blasick, 45 Wn.2d at 313-14. 9 No. 67931-7-1/10
whether the sidewalk offset was an open and obvious danger to Millson, the
consequent allocation of fault was a question for a jury to decide.
Additionally, as the supreme court's holdings in numerous cases make
clear, any prior knowledge that Millson had of the offset would go to her own
negligence. Millson's knowledge of the dangerousness of the particular sidewalk
in question is a genuine issue of material fact. But, even if she did have such
knowledge, that does not relieve the City of its duty to provide reasonably safe
sidewalks.
The City points to Johnson v. City of llwaco 39 to support its argument, but
it mischaracterizes the language of that case. 40 There, Johnson tripped on a
sidewalk offset on an Ilwaco street. 41 The supreme court held that the evidence
presented by Johnson justified submitting the case to the jury. 42 It then reversed 43 the trial court's order of judgment notwithstanding the verdict. In so holding, it 44 listed a number of issues that are proper questions for the jury to determine.
These issues included: "the extent to which [the sidewalk defect's] presence ...
39 38 Wn.2d 408, 229 P.2d 878 (1951). 40 Brief of Respondent City of Lynden at 13 (The City incorrectly cites Lewis v. City of Spokane, 124 Wash. 684, 215 P. 36 (1923), for the quotation on which it relies). 41 Johnson, 38 Wn.2d at 409-10. 42 .!.9.:. at 416. 43 .!.9.:. at 412-13. 44 .!.9.:. at 413. 10 No. 67931-7-1/11
would ordinarily be seen or observed by travelers on the sidewalk .... "45 Thus,
the language on which the City relies was a discussion of issues that are
generally jury questions, not those decided by the court on a grant of summary
judgment.
The City argues that the Johnson court held that another issue in
determining a City's duty is "whether the user was 'using the sidewalk in the
exercise of ordinary care."'46 While this is an accurate quotation from Johnson,
it does not support the City's contention that it did not owe Millson a duty. Millson
was walking on the sidewalk and became distracted. But, as noted above, 47 distraction itself has not been found to bar a plaintiff's recovery.
The City also cites Hoffstatter v. City of Seattle, 48 but this case is also
unhelpful. There, this court addressed the duty owed by a city with respect to a
parking strip, not a sidewalk. In the Hoffstatter opinion, this court acknowledged
that a different duty would be owed by a municipality in the context of a sidewalk
offset. "It is reasonable to expect that a pedestrian will pay closer attention to
surface conditions while crossing a landscaped parking strip than when walking
on a sidewalk."49 Thus, the Hoffstatter opinion is unhelpful.
45 kL 46 Brief of Respondent City of Lynden at 13 (quoting Johnson, 38 Wn.2d at 414). 47 Clevenger, 29 Wn.2d at 170-71. 48 105 Wn. App. 596, 20 P.3d 1003 (2001). 49 !fLat 601 (emphasis added). 11 No. 67931-7-1/12
Additionally, the City relies on three other cases to support its argument
that it owed no duty to Millson: Barker v. Skagit Speedway, 5° Howard v. Horn, 51
and Seiber v. Poulsbo Marine Center. Inc. 52 But, all of these cases involve
private landowners and their duty to invitees rather than a municipality's duty
to the public. 53 As noted above, a municipality such as the City generally owes a
higher duty of care to those traveling on its sidewalks than do private
landowners. Thus, none of these cases are helpful.
Finally, the City argues that "[t]o decide a premises liability case like this
one, this court should rely on the legal standard found in Restatement Second of 54 Torts§ 343." It then concludes that the Restatement supports its position. It
does not. Restatement § 343 also primarily addresses private landowners, not
municipalities. 55 Moreover, our supreme court has previously rejected reliance
on§ 343 without a party also acknowledging the language of§ 343A. 56
50 119 Wn. App. 807, 82 P.3d 244 (2003). 51 61 Wn. App. 520, 810 P.2d 1387 (1991). 52 136 Wn. App. 731, 150 P.3d 633 (2007). 53 Barker, 110 Wn. App. at 809-10 (involving the duty owed by a race track to an invitee); Howard, 61 Wn. App. at 522-23 (analyzing the duty owed by a landlord to his tenant); Seiber, 136 Wn. App. at 733, 739 (duty owed by business to pedestrian injured on public boardwalk outside of the store). 54 Brief of Respondent City of Lynden at 10. 55 See RESTATEMENT (SECOND) OF TORTS§ 343A (1965). 56 Kamla v. Space Needle Corp., 147 Wn.2d 114, 125-26, 52 P.3d 472 (2002) (noting that Space Needle's argument as regarded § 343 improperly "ignores section 343A"). 12 No. 67931-7-1/13
As § 343A makes clear, municipalities owe a greater duty to the public
than do private landowners. 57 The Restatement states that "[i]n determining
whether the possessor should anticipate harm from a known or obvious danger,
the fact that the invitee is entitled to make use of public land, or of the facilities of
a public utility, is a factor of importance indicating that the harm should be
anticipated. "58
Additionally, the Comments to § 343A of the Restatement emphasize a
municipality's greater duty of care. "As is stated in Subsection (2), ... a public
utility, government, or government agency may have special reason to anticipate
that one who so enters will proceed to encounter known or obvious dangers; and
such a defendant may therefore be subject to liability in some cases where the
ordinary possessor of land would not." 59 The Comment does include a
caveat: "Even such defendants, however, may reasonably assume that
members of the public will not be harmed by known or obvious dangers which
are not extreme, and which any reasonable person exercising ordinary attention, 60 perception, and intelligence could be expected to avoid." But that caveat does
not apply here. Because there was a dispute as to the open and obvious nature
of the sidewalk offset and as to Millson's knowledge of the sidewalk's
dangerousness, the trial court's grant of summary judgment was in error.
57 RESTATEMENT (SECOND) OF TORTS§ 343A.
58~
59~
ao ~ cmt. g. 13 No. 67931-7-1114
PARTIAL SUMMARY JUDGMENT FOR MILLSON
Millson argues that the trial court erred when it denied her motion for
summary judgment against the City. We disagree.
As noted above, summary judgment is appropriate if no genuine issue of
material fact exists and the moving party is entitled to a judgment as a matter of 61 law. "'A material fact is one that affects the outcome of the litigation."'62
"Where the facts are undisputed and but one reasonable inference can be drawn
from them, the question of negligence is one of law. Only if different results
might be honestly reached by different minds is the question one of fact for the
jury." 63 This court reviews an order on summary judgment de novo, performing
the same inquiry as the trial court. 64
As we stated above, to make out a prima facie case of negligence, a
plaintiff must establish duty, breach, injury, and causation. 65
Here, whether Millson's knowledge or the open and obvious nature of the
offset should warrant a conclusion that she is contributorily negligent is a factual
question for the jury to decide. Thus, it would have been inappropriate for the
61 CR 56(c); Hontz v. State, 105 Wn.2d 302,311, 714 P.2d 1176 (1986). 62 Eleen Cant, 174 Wn.2d at 164 (quoting Owen, 153 Wn.2d at 789). 63 Meissner v. City of Seattle, 14 Wn. App. 457, 458-59, 542 P.2d 795 (1975). 64 Simpson Tacoma Kraft Co. v. Dep't of Ecology, 119 Wn.2d 640, 646, 835 P.2d 1030 (1992). 65 Schooley v. Pinch's Deli Market. Inc., 134 Wn.2d 468, 474, 951 P.2d 749 1998). 14 No. 67931-7-1/15
trial court to determine liability of the City in the absence of a determination of
this necessary element of her tort claim.
We reverse the summary judgment dismissal and remand for further
proceedings.
C:v-t, J. WE CONCUR: