[No. 67931-7-I. Division One. April 1, 2013.]
Richard Platte, for appellant.
Eric E. Roy (of Roy, Simmons, Smith & Parsons) and Alan E. Garrett (of Law Offices of Kelley J. Sweeney), for respondents.
Author: Cox, J.
We concur: Appelwick, J., Becker, J. [1] ¶1 COX, J. -- A municipality has a duty to pedestrians using its sidewalks to keep the sidewalks reasonably safe for their intended use. ¶2 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 Lynden (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. ¶3 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. ¶4 We remand this matter to the trial court for further proceedings. ¶5 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. ¶6 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. ¶7 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. ¶8 Millson sued the City 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. ¶9 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. ¶10 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. ¶11 Millson appeals. SUMMARY JUDGMENT FOR CITY ¶12 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. ¶13 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 matter of law. ¶14 This court reviews a summary judgment order de novo, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party. ¶15 The City concedes that the applicable review standard is de novo. [2] ¶16 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." [3, 4] ¶17 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. "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." [5] ¶18 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, Yakima urged "that the injured pedestrian 'was not looking where she was walking,' and that the 'depression was plainly visible, open, obvious and apparent.'" [6] ¶19 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. 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." [7] ¶20 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, [8, 9] ¶21 "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." ¶22 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 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. [10] ¶23 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. ¶24 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 distracted," 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 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. [11] ¶25 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. ¶26 The City points to Johnson v. City of Ilwaco [12] ¶27 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.'" ¶28 The City also cites Hoffstatter v. City of Seattle, [13] ¶29 Additionally, the City relies on three other cases to support its argument that it owed no duty to Millson: Barker v. Skagit Speedway, Inc., [14] ¶30 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 Torts $ 343." ¶31 As $ 343A makes clear, municipalities owe a greater duty to the public than do private landowners. ¶32 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." PARTIAL SUMMARY JUDGMENT FOR MILLSON ¶33 Millson argues that the trial court erred when it denied her motion for summary judgment against the City. We disagree. ¶34 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 law. ¶35 As we stated above, to make out a prima facie case of negligence, a plaintiff must establish duty, breach, injury, and causation. [15] ¶36 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 trial court to determine liability of the City in the absence of a determination of this necessary element of her tort claim. ¶37 We reverse the summary judgment dismissal and remand for further proceedings. BECKER and APPELWICK, JJ., concur.