IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
SIGRID E. BRENDE, No. 87659-7-I
Appellant,
v. UNPUBLISHED OPINION
CITY OF SEATTLE, a municipality,
Respondent.
BOWMAN, A.C.J. — Sigrid Brende sued the city of Seattle (City) for
negligence after sustaining significant injuries from a fall that occurred when she
stepped onto a city street to access her legally parked car. The trial court
dismissed Brende’s lawsuit on summary judgment, reasoning that the City owed
Brende no duty of care because she was outside of a legally marked crosswalk
or sidewalk. Because Brende was not crossing the street and legal street
parking necessarily invites a pedestrian to use a portion of the roadway as part of
ordinary travel, we conclude the City owed Brende a duty of care. We reverse
and remand for further proceedings.
FACTS
Brende worked at Columbia Lutheran Home located at 4700 Phinney
Avenue North between North 48th Street and North 47th Street. Since 2017,
Brende drove to work and regularly relied on street parking near her workplace.
On August 18, 2021, Brende legally parked her car on the south side of
North 48th Street in front of Columbia Lutheran Home. Brende’s parking location No. 87659-7-I/2
that morning is shown with an “x” in the figure below, with a hand-drawn line
tracking her walking route from her car to work.
Later that the day, Brende returned to her car to get her lunch and some
paperwork from behind the driver’s seat. Brende walked to the driver’s side of
her car and saw “a hole in the ground” with “a bulging root coming out of it.” She
tried to step over the hole but “clipped” it and fell. The photo below shows the
proximity of the same “hole” next to a car parked in the general area of where
she fell.
Brende fell facedown and lost consciousness. The Seattle Fire Department took
her to the emergency room.
2 No. 87659-7-I/3
Brende suffered significant permanent injuries from the fall, including to
her left knee and right wrist. She sued the City, alleging it “tortiously and
negligently failed to construct, inspect, repair and maintain the street” where she
fell. She also alleged that the City failed to warn her of the unsafe condition.
The City moved for summary judgment dismissal, asserting that Brende
could not establish that it owed her a duty of care. The City claimed that it “does
not owe a duty to maintain the entire roadway in a reasonably safe condition for
pedestrian travel” because its duty to pedestrians is limited to maintaining “a
crosswalk” in a condition reasonably safe for pedestrian travel.
In response, Brende argued the City “has a duty to pedestrians to keep
the street in a reasonably safe condition to those pedestrians who are going to
their legally parked vehicles.” In support, she provided a report from a human
factors engineering and safety and risk management professional. The expert’s
report noted that North 48th Street lacked signage prohibiting street parking, so
“it is foreseeable and should be expected that the street will be used for parking.”
The report further explained:
The presence of vehicles utilizing the street for parking is important from a safety perspective as it is expected that pedestrians will be walking in the street when accessing vehicles. For example, when a driver pulls onto North 48[th] Street from Phinney Avenue North and parks their vehicle on the right/south side of the road, it is expected that they will exit the driver’s door and step directly into the roadway. Similarly, when pedestrians walk back to their vehicle, it is expected that they will step out into the roadway and walk either in front of or behind their vehicle to access the driver’s door. In other words, while the surface they are walking on is generally a “roadway”, it is also an area where it is expected pedestrians will be walking.
Relying on her expert’s report, Brende argued the area where she fell “was an
3 No. 87659-7-I/4
area where it was foreseeable/expected that pedestrians would be walking.”
Brende claimed that the City owed her a duty of care “as a pedestrian who had
properly parked her vehicle in accordance with municipal code.”
After hearing arguments from the parties, the trial court determined that
the City’s duty of care to all travelers to maintain the roadway in a condition that
is reasonably safe for ordinary travel did not extend to Brende because “[s]he’s
not on a sidewalk. She’s not in a crosswalk. She’s outside the area where that
duty exists.” The court granted the City’s motion for summary judgment.
Brende moved for reconsideration, which the trial court denied. She now
appeals.
ANALYSIS
Brende contends the trial court erred by concluding that the City did not
owe her a duty of care as a matter of law. We agree.
We review an order on summary judgment de novo, engaging in the same
inquiry as the trial court. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d
1065 (2000). Summary judgment is appropriate when “there is no genuine issue
as to any material fact and . . . the moving party is entitled to a judgment as a
matter of law.” CR 56(c). We view all facts and draw all reasonable inferences
in a light most favorable to the nonmoving party. Ellis, 142 Wn.2d at 458.
A defendant can prevail on a motion for summary judgment by challenging
the plaintiff’s ability to establish an essential element of a cause of action. Young
v. Key Pharms., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989). The
defendant bears the initial burden to show a lack of evidence. Id. at 225. The
4 No. 87659-7-I/5
burden then shifts to the plaintiff to establish the essential elements of their claim.
Id. If the plaintiff fails to satisfy this burden, the defendant is entitled to summary
judgment. Id.
To establish negligence, a plaintiff must show (1) the existence of a duty,
(2) breach of that duty, (3) resulting injury, and (4) proximate cause. Ranger Ins.
Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary
judgment is proper if a plaintiff cannot meet any one of these elements. Id. at
552-53. The threshold question is whether the defendant owes a duty of care to
the injured plaintiff. Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474, 951
P.2d 749 (1998). The existence of a legal duty is a question of law, but the
scope of that duty is a question of fact. McKown v. Simon Prop. Grp., Inc., 182
Wn.2d 752, 762, 344 P.3d 661 (2015).
A municipality is held to a general duty of care, which is that of a
reasonable person under the circumstances. Keller v. City of Spokane, 146
Wn.2d 237, 243, 44 P.3d 845 (2002). And whether a municipality owes a duty in
a particular situation “generally includes a determination of whether the incident
that occurred was foreseeable.” Id. In the context of roadways, a municipality
owes a duty of care to all travelers to maintain its roadways in a condition that is
reasonably safe for ordinary travel. Xiao Ping Chen v. City of Seattle, 153 Wn.
App.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
SIGRID E. BRENDE, No. 87659-7-I
Appellant,
v. UNPUBLISHED OPINION
CITY OF SEATTLE, a municipality,
Respondent.
BOWMAN, A.C.J. — Sigrid Brende sued the city of Seattle (City) for
negligence after sustaining significant injuries from a fall that occurred when she
stepped onto a city street to access her legally parked car. The trial court
dismissed Brende’s lawsuit on summary judgment, reasoning that the City owed
Brende no duty of care because she was outside of a legally marked crosswalk
or sidewalk. Because Brende was not crossing the street and legal street
parking necessarily invites a pedestrian to use a portion of the roadway as part of
ordinary travel, we conclude the City owed Brende a duty of care. We reverse
and remand for further proceedings.
FACTS
Brende worked at Columbia Lutheran Home located at 4700 Phinney
Avenue North between North 48th Street and North 47th Street. Since 2017,
Brende drove to work and regularly relied on street parking near her workplace.
On August 18, 2021, Brende legally parked her car on the south side of
North 48th Street in front of Columbia Lutheran Home. Brende’s parking location No. 87659-7-I/2
that morning is shown with an “x” in the figure below, with a hand-drawn line
tracking her walking route from her car to work.
Later that the day, Brende returned to her car to get her lunch and some
paperwork from behind the driver’s seat. Brende walked to the driver’s side of
her car and saw “a hole in the ground” with “a bulging root coming out of it.” She
tried to step over the hole but “clipped” it and fell. The photo below shows the
proximity of the same “hole” next to a car parked in the general area of where
she fell.
Brende fell facedown and lost consciousness. The Seattle Fire Department took
her to the emergency room.
2 No. 87659-7-I/3
Brende suffered significant permanent injuries from the fall, including to
her left knee and right wrist. She sued the City, alleging it “tortiously and
negligently failed to construct, inspect, repair and maintain the street” where she
fell. She also alleged that the City failed to warn her of the unsafe condition.
The City moved for summary judgment dismissal, asserting that Brende
could not establish that it owed her a duty of care. The City claimed that it “does
not owe a duty to maintain the entire roadway in a reasonably safe condition for
pedestrian travel” because its duty to pedestrians is limited to maintaining “a
crosswalk” in a condition reasonably safe for pedestrian travel.
In response, Brende argued the City “has a duty to pedestrians to keep
the street in a reasonably safe condition to those pedestrians who are going to
their legally parked vehicles.” In support, she provided a report from a human
factors engineering and safety and risk management professional. The expert’s
report noted that North 48th Street lacked signage prohibiting street parking, so
“it is foreseeable and should be expected that the street will be used for parking.”
The report further explained:
The presence of vehicles utilizing the street for parking is important from a safety perspective as it is expected that pedestrians will be walking in the street when accessing vehicles. For example, when a driver pulls onto North 48[th] Street from Phinney Avenue North and parks their vehicle on the right/south side of the road, it is expected that they will exit the driver’s door and step directly into the roadway. Similarly, when pedestrians walk back to their vehicle, it is expected that they will step out into the roadway and walk either in front of or behind their vehicle to access the driver’s door. In other words, while the surface they are walking on is generally a “roadway”, it is also an area where it is expected pedestrians will be walking.
Relying on her expert’s report, Brende argued the area where she fell “was an
3 No. 87659-7-I/4
area where it was foreseeable/expected that pedestrians would be walking.”
Brende claimed that the City owed her a duty of care “as a pedestrian who had
properly parked her vehicle in accordance with municipal code.”
After hearing arguments from the parties, the trial court determined that
the City’s duty of care to all travelers to maintain the roadway in a condition that
is reasonably safe for ordinary travel did not extend to Brende because “[s]he’s
not on a sidewalk. She’s not in a crosswalk. She’s outside the area where that
duty exists.” The court granted the City’s motion for summary judgment.
Brende moved for reconsideration, which the trial court denied. She now
appeals.
ANALYSIS
Brende contends the trial court erred by concluding that the City did not
owe her a duty of care as a matter of law. We agree.
We review an order on summary judgment de novo, engaging in the same
inquiry as the trial court. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d
1065 (2000). Summary judgment is appropriate when “there is no genuine issue
as to any material fact and . . . the moving party is entitled to a judgment as a
matter of law.” CR 56(c). We view all facts and draw all reasonable inferences
in a light most favorable to the nonmoving party. Ellis, 142 Wn.2d at 458.
A defendant can prevail on a motion for summary judgment by challenging
the plaintiff’s ability to establish an essential element of a cause of action. Young
v. Key Pharms., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989). The
defendant bears the initial burden to show a lack of evidence. Id. at 225. The
4 No. 87659-7-I/5
burden then shifts to the plaintiff to establish the essential elements of their claim.
Id. If the plaintiff fails to satisfy this burden, the defendant is entitled to summary
judgment. Id.
To establish negligence, a plaintiff must show (1) the existence of a duty,
(2) breach of that duty, (3) resulting injury, and (4) proximate cause. Ranger Ins.
Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary
judgment is proper if a plaintiff cannot meet any one of these elements. Id. at
552-53. The threshold question is whether the defendant owes a duty of care to
the injured plaintiff. Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474, 951
P.2d 749 (1998). The existence of a legal duty is a question of law, but the
scope of that duty is a question of fact. McKown v. Simon Prop. Grp., Inc., 182
Wn.2d 752, 762, 344 P.3d 661 (2015).
A municipality is held to a general duty of care, which is that of a
reasonable person under the circumstances. Keller v. City of Spokane, 146
Wn.2d 237, 243, 44 P.3d 845 (2002). And whether a municipality owes a duty in
a particular situation “generally includes a determination of whether the incident
that occurred was foreseeable.” Id. In the context of roadways, a municipality
owes a duty of care to all travelers to maintain its roadways in a condition that is
reasonably safe for ordinary travel. Xiao Ping Chen v. City of Seattle, 153 Wn.
App. 890, 900, 223 P.3d 1230 (2009).
What amounts to ordinary travel is determined by the roadway’s expected,
foreseeable use. See Keller, 146 Wn.2d at 252. So, “the determination of
whether or not a municipality has exercised reasonable care in the performance
5 No. 87659-7-I/6
of its duty to maintain its public ways in a reasonably safe condition must in each
case necessarily depend upon the surrounding circumstances.” Berglund v.
Spokane County, 4 Wn.2d 309, 315-16, 103 P.2d 355 (1940). This requires
consideration of both the “intended use and the actual situation that existed on
the roadway.” See Xiao Ping Chen, 153 Wn. App. at 902.
Citing several cases involving pedestrians injured while crossing the road,
the City argues that it owes Brende no duty of care because she was travelling
outside a marked or unmarked crosswalk. See Xiao Ping Chen, 153 Wn. App. at
906-07 (“By establishing certain presumptions in their favor, the law directs
pedestrians to use marked crosswalks. Therefore, the city has a corresponding
duty to maintain its crosswalks in a manner that is reasonably safe for ordinary
travel in light of the circumstances at each particular crosswalk.”); Hansen v.
Wash. Nat. Gas Co., 95 Wn.2d 773, 778, 632 P.2d 504 (1981) (cities generally
have “ ‘no duty. . . to make the middle of the street, mid-block, safe for
pedestrians who might elect to leave the sidewalk . . . and angle illegally across
the street’ ”); McKee v. City of Edmonds, 54 Wn. App. 265, 267-69, 773 P.2d 434
(1989) (municipality does not owe a duty of care to make the street safe for
jaywalkers). But Brende was not attempting to cross a roadway outside a
crosswalk. Instead, she was accessing her legally parked car by the only
available means—the roadway. So, the cases cited by the City are inapt.
This case is more like Berglund. In that case, Spokane County built a
bridge that provided the only way for both pedestrians and vehicles to cross from
one side of a river to the other, but the bridge had no footpath or sidewalk for
6 No. 87659-7-I/7
pedestrian use. 4 Wn.2d at 316. A minor pedestrian and her parents sued the
county for negligence after a car struck the minor while she walked across the
bridge. Berglund, 4 Wn.2d at 310-11. Our Supreme Court determined that
where “the bridge was intended and provided for the use of pedestrians, there
existed the correlative duty on the part of the county to use reasonable care for
their protection.” Id. at 316. And that “by inviting, indeed directing, pedestrians
to use the bridge along with motor vehicles, the county had a duty to ‘exercise
reasonable care to keep [the bridge] in a reasonably safe condition for [both
intended modes of] travel.’ ” Xiao Ping Chen, 153 Wn. App. 9031 (quoting
Berglund, 4 Wn.2d at 317).
In other words, an express or implied invitation to pedestrians to use a
roadway for a particular purpose imposes an obligation to maintain that roadway
in a reasonably safe condition for that purpose. See Xiao Ping Chen, 153 Wn.
App. at 907 (“by virtue of its decision to direct pedestrians to walk in the
crosswalk herein at issue, the city had a duty to ensure that the crosswalk would
be reasonably safe for its intended use in light of the circumstances present at
the crosswalk”). And here, the parties agree that the only route for Brende to
access the driver’s side of her legally parked car was the roadway. So, like the
pedestrian bridge in Berglund, the City’s invitation to drivers to use the roadway
to access the driver’s side of their parked cars carries with it a corresponding
duty to keep that area in a reasonably safe condition for that intended use.
1 Alterations in original.
7 No. 87659-7-I/8
The trial court erred by determining that the City owed no duty to Brende as
a matter of law and granting summary judgment dismissal for the City. We reverse
WE CONCUR: