IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON NANCI MILLSON, Appellant, V. CITY OF LYNDEN, a municipal corporation; TIM NEWCOMB and HELEN NEWCOMB, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 67931-7-1 DIVISION ONE

PUBLISHED FILED: April1. 2013

Cox, 

### J.- A municipality has a duty to pedestrians using its sidewalks to keep the sidewalks reasonably safefortheir intended use. 1 Generally '"[a] pedestrian on a sidewalkwho has no knowledge to the contrary may proceed on the assumption thatthe city has performed its full duty and has keptthe sidewalk in a reasonably safe condition

...."2 Nor is a pedestrian "required to keep his eyes on the walk immediately in front ofhim at all times."3 And the fact thatthere is an offsetthat 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 ofYakima, 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 dutyto lookforthat 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 dutyto keep its sidewalks reasonably safefortheir intended use. Accordingly, we reverse the summaryjudgment in favor ofthe City. Millson cross appeals, arguing that the trial court denied hercross-motion for partial summaryjudgment on the City's liability. But material factual issues as to the causation element of hertort claim remain. Partial summaryjudgment in herfavor is not appropriate. We remand this matterto the trial courtforfurther 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 herwalk, Millson noticed multiple places where the sidewalk had cracked and lifted. The conditions were so bad in one portion of herwalk that she leftthe sidewalk and continued on the road. Though Millson later acknowledged that as a regularwalker she knew that the sidewalk conditions in her neighborhood were not good, she feltthat the streets closerto her house were in better condition. A block awayfrom her house, Millson continued onto a section ofsidewalk 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 1.5to 2 inches high. She fell to the ground, injuring her hands, shoulders, face, and ribs. Millson sued the City of Lynden for negligentlyfailing to maintain the sidewalk in a reasonably safe condition and consequently causing her injuries. In her FirstAmended Complaint, Millson joined defendants Tim and Helen Newcomb and Samuel and Elaine Halbert, based on the City's assertion ofan affirmative defense related to these parties. The Newcombs and the Halberts owned property abutting the sidewalk offset. The City moved for summaryjudgment, arguing that it did not owe a duty to Millson because the sidewalk offsetwas open and obvious and known to Millson. The Newcombsjoined the City's motion. In response, Millson opposed this motion and made a cross-motion for partial summaryjudgment as to liability againstthe City. The court granted the City and the Newcombs' motion for summaryjudgment. Millson appeals. SUMMARYJUDGMENT 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 fortrial as to the City's negligence. A motion for summaryjudgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to ajudgment as a 3No. 67931-7-1/4 matter of law. 5 '"A material fact is one that affects the outcome ofthe litigation."'6 When a defendant moves for summaryjudgment, it bears the initial burden of showing the absence ofan issue of material fact.7 Ifa defendant makes that initial showing, then the burden shifts to the plaintiffto establish thatthere is a genuine issue forthe trier offact. 8 This court reviews a summaryjudgmentorderde novo, viewing the facts and reasonable inferences in the light mostfavorable to the nonmoving party. 9 The City concedes thatthe 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 thatthe sole governing standard for our review ofthe summaryjudgment ruling is de novo. Accordingly, Dolan v. King Counti 1 and 

### !n reMarriage of Rideout, 12 on which the City relied in its briefing, are irrelevantto 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). 

### 4No. 67931-7-1/5 To prove negligence, the plaintiff must establish "(1) the existence ofa duty owed to the complaining party; (2) a breach ofthat duty; (3) a resulting injury; and (4) that the claimed breach was a proximate cause ofthe injury." 13 Municipalities have a dutyto 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 liablefor an unsafe condition it did not create, it must have notice ofthe condition and a reasonable opportunityto correct it. 15 While a city is not an insurer ofthe personal safety of pedestrians, it has a dutyto keep its sidewalks reasonably safe. "Atest which is sometimes applied to determine whether a city has performed its duty is whether a reasonably cautious man, having the dutyto preserve and repairthe sidewalks, would orwould not consider a particular defect as one where pedestrians might be injured."[161 The supreme court has made clearthat a city is not relieved of its dutyto citizens where an offset is open and obvious. In Blasick v. City ofYakima, the City urged "thatthe injured pedestrian 'was not looking where she was walking,' and that the 'depression was plainlyvisible, open, obvious and apparent."'17 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 ofSeattle, 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 barto the City's negligence. 18 

### In so doing, the Blasick court reiterated the supreme court's previous holdings as to a city's dutyto 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 factthatthere 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 ofdamages she can claim in proportion to the percentage of negligence attributable to her.21 

### Ifthere is a question as to the open and obvious nature ofa sidewalk offset, the supreme court has held that this is a question offactthat should be presented to thejury: 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 ifonly the plaintiff had looked. In such cases, we made it clear that it was for thejuryto decide

### whether a reasonable man, in the plaintiff's shoes, would, underthe 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); Clevengerv. City of Seattle, 29Wn.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& KellerW. Allen, 16WASHINGTON PRACTICE: TORT LAWAND PRACTICE§ 8.2, at 252-53 (3d ed. 2006). 22 Hines, 42 Wn.2d at 121 (emphasis added) (citations omitted). 

### 6No. 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 dangerof the street may be considered bythe trier offact to determinethe percentage of the plaintiff's negligence."23 Additionally, a plaintiff's 

### knowledge ofa dangerous condition in a sidewalk is typically analyzed as a question ofa plaintiff's negligence. In Sutton v. City ofSnohomish, 24 Lorence v. City of Ellensburgh,25 Shearerv. Town of Buckley, 26 Austin v. City of Bellingham,27 Apkerv. City of Hoquiam,28 Kennedy v. City of Everett, 29 and Clevengerv. City ofSeattle, 30 the supreme court considered a municipality's dutyto maintain its sidewalks. In all ofthese cases, the plaintiffwas injured while walking along a sidewalk or driving along a street.31 And, in all ofthese cases the municipality argued thatthe injured party did not exercise reasonable care or should have known ofthe 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 2Wn.2d 650, 99 P.2d 614 (1940). 30 29 Wn.2d 167, 186 P.2d 87 (1947). 31 

## !fL. at 167-68; Apker, 51 Wash. at 568; Austin, 45 Wash. at 460; Shearer, 31 Wash. at 372-73; Lorence, 13 Wash. at 342; Sutton, 11 Wash. at 25-26. 

### 7No. 67931-7-1/8 prior knowledge.32 But, in 

### none ofthese cases did the supreme court hold that knowledge barred the plaintiff's claim entirely. 33 Instead, the court analyzed this question as one of

### aplaintiff's comparative negligence.34 Thus, in these cases, the plaintiff's previous knowledge ofa dangeror unreasonable action was not a 

### barto her negligence claim, nordid it relieve the municipality of its duty. "Negligence is generally a question offactforthejury, and should be decided as a matterof law only 'in the clearest ofcases and when reasonable minds could not have differed in their interpretation' ofthe facts."35 The existence ofa legal duty is a question of lawwhich an appellate court reviews de novo.36 "[W]here duty depends on proof ofcertain facts that may be disputed, summary judgment is inappropriate."37 Here, the City expressly concedes that it has a dutyto maintain its sidewalks "in a condition that is reasonably safe for pedestrians." Nor does the City contest that it had actual notice ofthe sidewalk offset in this case. In 2007, the City wrote a letterto 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 ofStanwood, 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 ofSeattle, 160 Wn. App. 234, 238, 247 P.3d 482 (2011). 

### 8No. 67931-7-1/9 attention thatthe sidewalk abutting the following described property ... presents a potential hazard, and is in need of repair." But, the City claims that it has "no dutytowarn ofconditions that are open and obvious to the user." And, it argues, this is particularlytrue when the person claiming injury knew aboutthe dangerousness ofthe City's sidewalks. Thus, the City takes the position that it is relieved of its duty because the sidewalk offsetwhere Millson was injured was "open and obvious" and because Millson had knowledge ofthe offset. Butthis is notthe law. As oursupreme court has held, generally a pedestrian's knowledge ofthe dangerousness ofa sidewalkwill not relieve a city of its duty.38 The same is true ofa dangerous offsetthat is open and obvious. Here, where there is arguably a dispute whetherthe offsetthat caused Millson's injurywas "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 summaryjudgment. The City claims thatthe offsetthat 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 herselfto become distractedr.{ Millson claims otherwise. She statesthat she had walked on the streetwhere shefell only a couple oftimes before. Further, she claims she had never before walked on the particular portion ofthe sidewalkwhere shefell. Thus, given the factual discrepancies

38 See Blasick, 45 Wn.2d at 313-14. 9No. 67931-7-1/10 whetherthe sidewalk offset was an open and obvious dangerto Millson, the consequent allocation offault was a question for ajuryto decide. Additionally, as the supreme court's holdings in numerous cases make clear, any prior knowledge that Millson had ofthe offset would go to her own negligence. Millson's knowledge ofthe dangerousness ofthe particular sidewalk in question is a genuine issue of material fact. But, even ifshe 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 llwaco39 to support its argument, but it mischaracterizes the language ofthat case.40 There, Johnson tripped on a sidewalk offset on an Ilwaco street.41 The supreme court held thatthe evidence presented by Johnsonjustified submitting the case to thejury.42 It then reversed the trial court's order ofjudgment notwithstanding the verdict.43 In so holding, it listed a number of issues that are proper questions forthejuryto determine.44 These issues included: "the extentto 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. 10No. 67931-7-1/11 would ordinarily be seen orobserved by travelers on the sidewalk

...."45 Thus, the language on which the City relies was a discussion of issuesthat are generallyjury questions, notthose decided by the court on a grantofsummary judgment. The City argues thatthe Johnson court held that another issue in determining a City's duty is "whetherthe userwas 'using the sidewalk in the exercise ofordinarycare."'46 While this is an accurate quotation from Johnson, it does not supportthe City's contention that it did not owe Millson a duty. Millson was walking on the sidewalk and became distracted. But, as noted above, distraction itself has not been found to bar a plaintiff's recovery. 47 The City also cites Hoffstatterv. City ofSeattle,48 butthis case is also unhelpful. There, this court addressed the duty owed by a city with respectto a parking strip, not a sidewalk. In the Hoffstatteropinion, this court acknowledged that a different dutywould be owed by a municipality in the context ofa sidewalk offset. "It is reasonable to expectthat a pedestrian will pay closer attention to surface conditions while crossing a landscaped parking strip than when walking on a sidewalk."49 Thus, the Hoffstatteropinion is unhelpful.

414). 45

## kL 46 Brief of Respondent City of Lynden at 13 (quoting Johnson, 38 Wn.2d at

47 Clevenger, 29 Wn.2d at 170-71. 48 105 Wn. App. 596, 20 P.3d 1003 (2001). 49 !fLat601 (emphasis added). 11No. 67931-7-1/12 Additionally, the City relies on three other cases to support its argument that it owed no dutyto Millson: Barkerv. Skagit Speedway,5° Howard v. Horn,51 and Seiberv. Poulsbo Marine Center. Inc.52 But, all ofthese cases involve private landowners and their dutyto invitees ratherthan a municipality's duty to the public.53 As noted above, a municipality such as the City generally owes a higher duty ofcare to those traveling on its sidewalks than do private landowners. Thus, none ofthese 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 Torts§ 343."54 It then concludes thatthe 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, 136Wn. App. at 733, 739 (duty owed by business to pedestrian injured on public boardwalk outside ofthe store). 54 Briefof 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"). 12No. 67931-7-1/13 As 

### § 343A makes clear, municipalities owe a greaterdutyto the public than do private landowners.57 The Restatement states that "[i]n determining whetherthe possessor should anticipate harm from a known orobvious danger, the fact thatthe invitee is entitled to make use of public land, or ofthe facilities of a public utility, is a factor of importance indicating thatthe harm should be anticipated."58 Additionally, the Comments to 

### § 343A ofthe Restatement emphasize a municipality's greaterduty ofcare. "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 maytherefore be subjectto liability in some cases where the ordinarypossessorofland wouldnot."59 The Comment does include a caveat: "Even such defendants, however, may reasonably assume that members ofthe public will not be harmed by known orobvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid."60 Butthat caveat does not apply here. Because there was a dispute as to the open and obvious nature ofthe sidewalk offset and as to Millson's knowledge ofthe sidewalk's dangerousness, the trial court's grant ofsummaryjudgmentwas in error.

57 RESTATEMENT (SECOND) OF TORTS§ 343A.**58~ 59~**  

### ao**~** cmt. g. 13No. 67931-7-1114 

### PARTIAL SUMMARY JUDGMENT FOR MILLSON Millson argues that the trial court erred when it denied her motion for summaryjudgment againstthe City. We disagree. As noted above, summaryjudgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to ajudgment as a matterof law. 61 "'A material fact is one that affects the outcome ofthe 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 ifdifferent results might be honestly reached by different minds is the question one offact forthe jury."63 This court reviews an order on summaryjudgmentde 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 orthe open and obvious nature ofthe offset should warrant a conclusion that she is contributorily negligent is a factual question forthejuryto decide. Thus, it would have been inappropriateforthe

61 CR 56(c); Hontz v. State, 105Wn.2d 302,311, 714 P.2d 1176 (1986). 62 Eleen Cant, 174Wn.2d at 164 (quoting Owen, 153Wn.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, 119Wn.2d 640, 646, 835 P.2d 1030 (1992). 65 Schooley v. Pinch's Deli Market. Inc., 134Wn.2d 468, 474, 951 P.2d 749 1998). 14No. 67931-7-1/15 trial court to determine liability ofthe City in the absence ofa determination of this necessary element of hertort claim. We reverse the summaryjudgment dismissal and remand forfurther proceedings. 

# C:v-t, J.

WE CONCUR:

15