[No. 69263-1-I. Division One. January 27, 2014.]
Edward J. Hemingway (of Buckley & Associates), for appellant.
Peter S. Holmes, City Attorney, and Jeffrey Cowan and Tara Gillespie, Assistants, for respondent.AUTHOR: Linda Lau, J. Stephen J. Dwyer, J., C. Kenneth Grosse, J. concurred.Linda Lau
FACTS The Accident Because of the impact, the truck drove up onto the curb, as Mr. Nguyen and the passenger next to him struggled with the steering wheel to control the truck. The truck travelled about 40 feet on the planting strip, its right rear bumper nicking another tree before returning to the roadway. The court did not fault Mr. Nguyen's driving; he did not leave the roadway before impact. The Lawsuit 6. Prior to August 24, 2008, SDOT had received no complaints regarding the tree struck by Mr. Nguyen's rental truck. . . . . 8. There is no evidence on the condition of the tree in question that would have conferred constructive notice of a danger to vehicles using Olson Pl. SW. . . . . 10. However, no act or omission of the City of Seattle or its employees or agents was a cause in fact of the accident of August 24, 2008. 11. The manner in which SDOT maintains Seattle's street trees does not represent a failure of ordinary care. The court concluded that the City breached no duty to maintain Olson Place Southwest in reasonably safe condition and that no act or omission by the City proximately caused Nguyen's accident. It entered judgment in the City's favor. The court also concluded that the City lacked notice of any alleged danger posed by the tree. See RP (July 9, 2012) at 647 ("[t]hat the City is not liable, that they did not have notice either constructive, certainly not actual, of the problem with this tree"). ANALYSIS Standard of Review [1-6] [7, 8] Negligence [9] [10, 11] "The [county] [city] [town] [state] has a duty to exercise ordinary care in the [design] [construction] [maintenance] [repair] of its public [roads] [streets] [sidewalks] to keep them in a reasonably safe condition for ordinary travel." (Alterations in original.)» "In order to find a [town] [city] [county] [state] liable for an unsafe condition of a [sidewalk] [street] [road] that was not created by its employees, [and that was not caused by negligence on its part,] [and that was not a condition which its employees or agents should have reasonably anticipated would develop,] you must find that the [town] [city] [county] [state] had notice of the condition and that it had a reasonable opportunity to correct the condition [or give proper warning of the condition's existence]. "A [town] [city] [county] [state] is deemed to have notice of an unsafe condition if the condition has come to the actual attention of its employees or agents, or the condition existed for a sufficient length of time and under such circumstances that its employees or agents should have discovered the condition in the exercise of ordinary care." (Alterations in original.)» [12] Statutory Duty No one shall allow to remain in any public place any tree trunk, limb, branch, fruit or foliage which is in such condition as to be hazardous to the public, and any such trees now existing in any such planting (parking) strip or abutting street area may be removed in the manner provided in this subtitle for the revocation of permits and removal of obstructions. Former SMC 15.42.020 (1961), titled "Overhanging trees and shrubs," states: No flowers, shrubs or trees shall be allowed to overhang or prevent the free use of the sidewalk or roadway, or street maintenance activity, except that trees may extend over the sidewalk when kept trimmed to a height of eight feet (8') above the [sidewalk], and fourteen feet (14') above a roadway. (Emphasis added.) Nguyen contends the City breached these statutory duties by failing to maintain Olson Place Southwest in a reasonably safe condition for ordinary travel. The City contends that Nguyen presented no evidence showing the tree branch was less than 14 feet above the ground or posed a hazard to the public. [13] That [the leaning tree] would impair and it would cause a hazard to larger traffic that's heading down the roadway, especially traffic that is not over and hugging the lane line or over the lane line, or traffic that - - or persons that are driving vehicles that they're not used to the size of the vehicle, such as a rental moving truck, as opposed to somebody that's always driving a large vehicle, such as a commercial truck driver or a bus driver or something of that nature. RP (July 5, 2012) at 384. [T]he [cargo] box is actually wider than the truck is wide. It is certainly likely - - this is not a criticism of Mr. Nguyen - - that one would not necessarily realize how tall or how wide the vehicle is, as he doesn't drive it very often. It is a relatively tall vehicle, 11 foot, certainly bigger than . . . just a regular kind of pickup truck would be, and it is wider because a box has been set up on this Ford bed . . . . . . . . [Nguyen] is driving a vehicle with which he is unfamiliar, both horizontally [width] and vertically [height]. RP (July 9, 2012) at 640, 646. The trial court continued, [W]e see in the photos - - substantial damage - - I would describe it as a can opener to that corner of the [box of the truck] . . . the right passenger front part of the box that sits very close to the overhead of Mr. Liem Looking at the tree and everything we know about the tree did not show it to be a damaged - - or there's no photo that shows some mark in the middle to show that it was just waiting to fall down or that something light would have caused the tree to fall down. RP (July 9, 2012) at 642. Mr. Stockinger during his testimony indicated that he thought [the tree] might be leaning into the roadway. I am not sure that that's likely . . . it's certainly possible that Mr. Nguyen is all the way over in the corner - - I mean, at the edge right next to the curb, that wouldn't be a very safe way to drive. . . . So we don't know exactly where [Mr. Nguyen] is in the roadway . . . . RP (July 9, 2012) at 642-43. [14] Duty to Inspect [15] [16, 17] Res Ipsa Loquitur [18-21] "(1) When the act causing the injury is so palpably negligent that it may be inferred as a matter of law, i.e., leaving foreign objects, sponges, scissors, etc., in the body, or amputation of a wrong member; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries." Curtis, 169 Wn.2d at 891 (some internal quotation marks omitted) (quoting Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003)). If any of the three elements of res ipsa loquitur is missing, a presumption of negligence is unwarranted. Res ipsa loquitur is "'ordinarily sparingly applied, in peculiar and exceptional cases, and only where the facts and the demands of justice make its application essential.'" Curtis, 169 Wn.2d at 889 (internal quotation marks omitted) (quoting Tinder v. Nordstrom, Inc., 84 Wn. App. 787, 792, 929 P.2d 1209 (1997)). CONCLUSION DWYER, J., concurs. GROSSE, concurs