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### IN THE SUPREME COURT OF THE STATE OF WASHINGTON GUY H. WUTHRICH, Petitioner,
v. KING COUNTY, a governmental entity, Respondent, and CHRISTA GILLAND (PRICE), Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 

### __________________) No. 91555-5

ENBANC

Filed: 

### JAN 28 2016

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YU, J.-Amunicipality's duty to maintain its roadways in areasonably safe condition for ordinary travel is not confinedto the asphalt. Ifa wall ofroadside vegetationmakes the roadway unsafe by blocking a driver's view ofoncoming traffic at an intersection, the municipality has a duty to take reasonable steps to address it. In this case, there are genuine issues ofmaterial fact as to whether this duty was breached and whether any breachproximately causedpetitioner Guy Wuthrich's injuries. We reverse and remand for further proceedings.Wuthrich v. King County, No. 91555-5
FACTS AND PROCEDURAL HISTORY On June 20, 2008, at about 5:15p.m., Wuthrich was riding a motorcycle on Avondale Road Northeast in King County, approaching an intersectionwith
. Northeast 159th Street. Drivers on 159th Street are controlled by a stop sign at the intersection; drivers on Avondale Road are not. Defendant Christa Gilland was driving a car on 159th Street. When she reached the intersection with Avondale Road, she stoppedto wait for passing traffic but did not see Wuthrich approaching from the left. She turned left onto Avondale Road and collided with Wuthrich's motorcycle, seriously injuringhim. On June 15, 2011, Wuthrich filed a complaint againstboth Gilland and respondent King County (County), alleging thatthe County was liable for his injuries because overgrown blackberry bushes obstructed Gilland's view oftraffic at the intersection. The trial court dismissed the action againstthe County on summaryjudgment. The Court ofAppeals affirmed in a split, unpublished decision. 1 Wuthrich v. King County, noted at 186 Wn. App. 1023, review granted, 183 Wn.2d 1017, 355 P.3d 1154 (2015). ISSUE Didthe Court ofAppeals err in affirming the trial court's order dismissing Wuthrich's action against the County on summaryjudgment?

1Wuthrich's action against Gilland has been stayed, and Gilland is not a party on appeal. 2Wuthrich v. King County, No. 91555-5
STANDARD OF REVIEW We review summaryjudgment decisions de novo. Owen v. BurlingtonN. Santa Fe R.R., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). "[A]ll facts and reasonable inferences must be viewed inthe lightmost favorable to" Wuthrich, the nonmovingparty. 

### ld. "Summaryjudgmentis proper ifthe record before the trial court establishes 'thatthere is no genuine issue as to any material fact and that the movingparty is entitledto ajudgment as amatter oflaw.'" 2 

### Id. (quoting CR 56(c)). ANALYSIS "In order to recover on a common law claim ofnegligence, a plaintiff'must show (1) the existence ofa duty to the plaintiff, (2) a breach ofthat duty, (3) a resulting injury, and (4) the breach as the proximate cause ofthe injury."' Lowman
v. Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013) (quoting Crowe v. Gaston, 134 Wn.2d 509,514,951 P.2d 1118 (1998)). The County contends ithas no duty to address hazardous conditions created by naturally occurring roadside vegetation. Alternatively, the County contends that even ifitdoes have such a duty, any

2The County moved to strike part II(C) ofWuthrich's briefresponding to amicus Washington State Association ofMunicipal Attorneys. We passed the County's motion to the merits and now grant it. The offending portion ofWuthrich's briefrelies on factual evidence outside the record, which we cannot consider when reviewing the trial court's summary judgment decision. Owen, 153 Wn.2d at 787; see also RAP 9.12. 3Wuthrich v. King County, No. 91555-5 breach was not a proximate cause ofWuthrich's injuries. Both contentions are precludedby this court's precedent. A. Duty and breach The existence and scope ofa duty are questions oflaw. Keller v. City of Spokane, 146 Wn.2d 237, 243, 44 P.3d 845 (2002). Itis well establishedthat a municipalityhas the duty "to maintain its roadways in a condition safe for ordinary travel." 3 Owen, 153 Wn.2d at 786-87. There is no categorical exemption for unsafe conditions caused by roadside vegetation. The County argues otherwise, relying onRathbun v. Stevens County, 46 Wn.2d 352, 281 P.2d 853 (1955),Bradshaw v. City of Seattle, 43 Wn.2d 766, 264 P.2d 265 (1953), and Barton v. King County, 18 Wn.2d 573, 139 P.2d 1019 (1943). Those cases would support the County's position iftheir legal foundations remained solid. However, each ofthose cases was decided before the legislature waived sovereign immunity for municipalities and therefore relied on the rule that the municipalities' duties to address conditions outside the roadway was limitedto warning or protecting against inherently dangerous ormisleading conditions.

3 Itis disputed whetherthe County owned the land on whichthe blackberry bushes were located. We therefore do notreachthe merits ofWuthrich's argumentthatthe County had an independent duty as a landowner to "use and keep [its] premises in a condition so adjacent public ways are notrendered unsafe for ordinary travel." Rev. Tenney, 56 Wn. App. 394, 396-97, 783 P.2d 632 (1989). 4Wuthrich v. King County, No. 91555-5 Rathbun, 46 Wn.2d at 356--57; Bradshaw, 43 Wn.2d at 773-74; Barton, 18 Wn.2d at 575-76. That rule no longer applies. Our more recentprecedentmakes it clearthat a municipality has "the overarching duty to provide reasonably safe roads for the people ofthis state to drive upon." Owen, 153 Wn.2d at 788. Addressing inherently dangerous or misleading conditions is simply "part of'that duty. Id. Andto the extentthatRuff
v. County of King, 125 Wn.2d 697, 887 P.2d 886 (1995), has been misread as holdingthat amunicipality's duty is limitedto complying with applicable law and eliminating inherently dangerous conditions, we clarify that it is not. Municipalities are generallyheld to a reasonableness standard consistent with that applied to private patties. See Owen, 153 Wn.2d at 787; Keller, 146 Wn.2d at 242- 43 (citing RCW 4.96.010);Xiao Ping Chen v. City of Seattle, 153 Wn. App. 890, 900-01, 904-05, 223 P.3d 1230 (2009). Therefore, to the extentthatRathbun, Bradshaw, andBartonhold that a municipality has no duty at all to address dangerous sight obstructions caused by roadside vegetation, we now explicitly hold they are no longer good law. See W. G. Clark Constr. Co. v. Pac. Nw. Reg'I Council ofCarpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014). We also note that whether a condition is inherently dangerous does not depend on whetherthe condition "exists in the roadway itself." Wuthrich, slip op. at 7. Itdepends on whetherthere is an "'extraordinary condition or unusual

5Wuthrich v. King County, No. 91555-5 hazard."' Barton, 18 Wn.2d at 577 (quotingLeberv. King County, 69 Wash. 134, 136, 124 P. 397 (1912)). Such ahazard may be presented by "the situation along the highway." !d. at 576. Inherent dangerousness is a question offact that may be relevantto the level ofcare that is reasonable, butit does not affectthe existence of the overall duty to take reasonable care. Owen, 153 Wn.2d at 788. Whetherthe County breached its duty depends on the answers to factual questions: Was the road reasonably safe for ordinary travel, and did the municipality fulfill its duty by makingreasonable efforts to correct any hazardous conditions? !d. Wuthrich introduced sufficient evidence to create genuine issues ofmaterial fact as to both ofthese questions. Gilland testified thather view ofthe intersection was obstructed by the blackberry bushes, and Wuthrich's experts testified thatthe County could have taken a variety ofcorrective actions to address the issue, including trimming or removing the blackberry bushes, reducing the speed limit, or adjusting the stop line. Whether the roadway was reasonably safe and whether it was reasonable for the County to take (or not take) any corrective actions are questions offact that must be answered in light ofthe totality ofthe circumstances. !d. at 788-90;Xiao Ping Chen, 153 Wn. App. at 901. In sum, we reaffirm that a municipality has a duty to take reasonable steps to
remove or correctfor hazardous conditions thatmake aroadwayunsafe for ordinary travel and now explicitly hold this includes hazardous conditions created

6Wuthrich v. King County, No. 91555-5 byroadside vegetation. We reject the notion that continuing to recognize this duty will make municipalities strictly liable for all traffic accidents because, as we have previously emphasized, "only reasonable care is owed." Lowman, 178 Wn.2d at 170 (citing Keller, 146 Wn.2d at 252); see also Owen, 153 Wn.2d at 789-90. B. Proximate cause The County also argues that even ifit did breach its duty, we should affirm
on the alternate basis thatthe breach did not proximately cause Wuthrich's injuries. "Washington 'recognizes two elements to proximate cause: [c]ause in fact and legal causation."' Lowman, 178 Wn.2d at 169 (alteration in original) (quoting Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985)). Here, cause in fact is disputed and the County's arguments relating to legal causation are barred by controllingprecedent. "Causein fact refers to the 'butfor' consequences ofan act-thephysical connectionbetween an act and an injury." Hartley, 103 Wn.2d at 778. "As a determination ofwhat actually occurred, cause in fact is generally left to thejury." Id. In this case, Gilland testified thatthe blackberry bushes obstructedherview of the intersection, so she did not see Wuthrich until she had already begunher lefthandturn and didnothave time to stop. Consistently, the police report statedthat the "brush line causes somewhat ofa site [sic] obstruction" and there were "no preimpact skid marks from eithervehicle" in the roadway, indicating that Gilland and

7Wuthrich v. King County, No. 91555-5 Wuthrich couldnot see each other until the moment ofimpact. Clerk's Papers at 445. This is sufficientto raise a genuine issue ofmaterial fact as to whether Wuthrich would in fact have been injured ifGilland's view hadnotbeen obstructed. 

### See Hartley, 103 Wn.2d at 778. Legal causation depends on "'policy determinations as to how far the consequences ofa defendant's acts should extend.'" 

### Lowman, 178 Wn.2d at 169 (quoting 

### Crowe, 134 Wn.2d at 518). We make that determination by "evaluat[ing] 'mixed considerations oflogic, common sense,justice, policy, and precedent."' 

### Id. (internal quotation marks omitted) (quoting

### Hartley, 103 Wn.2d at 779). The County contends that Gilland's negligence was not a foreseeable circumstance, so legal causation should not extendto the County. However, we have already rejected similar arguments. 

### ld. at 170-72. Gilland's alleged negligence could certainly "limit or negate [the County's] liability on any number oftheories, including comparative fault orthe failure to prove factual causation," butthat possibility does not automatically defeat the existence oflegal causation. I

### d. at 172; 

### cf Owen, 153 w·n.2d at 787. The County also contends that legal causation is not established because there were very few prior accidents at the intersection, so it did nothave notice that the blackberry bushes were hazardous. However, to the extent legal causation includes a notice component, it is simplynotice ofthe 

### condition. Niebarger v. City

8Wuthrich v. King County, No. 91555-5 

### of Seattle, 53 Wn.2d 228, 229-30, 332 P.2d 463 (1958). There is evidence in the record thatthe blackberry bushes had beenthere for years and the County knew

' 

### . ' about them. The lack ofprior accidents could be relevant circumstantial evidence
as to the reasonableness ofthe County's actions when evaluating breach, butit does notpreclude legal causation. CONCLUSION There are genuine issues ofmaterial fact as to whetherthe intersection at Avondale Road and 159th Street was reasonably safe for ordinary travel, whether the County took reasonable steps to remove hazardous conditions at the intersection, and whether any ofthe County's actions or omissions proximately caused Wuthrich's injuries. We therefore reverse the Court ofAppeals and remand to the trial court for further proceedings.

9Wuthrich v. King County, No. 91555-5

WE CONCUR: 

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