Opinion
No. 26565-0-III.
October 2, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-2-02875-5, Salvatore F. Cozza, J., entered October 26, 2007.
UNPUBLISHED OPINION
Appellant Ruth Green seeks review of the Superior Court orders granting summary judgment dismissal of her claims against the City of Spokane (City) and Williams/Parkwood, LLC, the adjoining property owner, for injuries suffered after falling on a defective section of the sidewalk. The trial court concluded that there was no evidence that the property owner did anything to damage the sidewalk and that the City had no knowledge of the defect. We agree and affirm the rulings below.
Ms. Green fell on the sidewalk on June 27, 2002, which was raised 1.125 inches above the adjoining segments. She suffered a bloody nose and injured her knee and chin.
She was familiar with the damaged sidewalk since she had lived in the apartment complex since 1998. After the accident, she complained to both the apartment manager and the City about the condition of the sidewalk. Williams/Parkwood fixed the sidewalk in August, 2002, before the City of Spokane directed that repairs be made the following month.
Ms. Green filed suit against seven defendants, including Williams/Parkwood, on June 16, 2005, shortly before the statute of limitations period would have expired. She did not name the City of Spokane as a defendant. The City was subsequently added as a defendant January 31, 2007. The various other defendants in the case were dismissed out over time.
Williams/Parkwood sought summary judgment on the basis that it was not responsible for the condition of the sidewalk. Relying on Rivett v. City of Tacoma, 123 Wn.2d 573, 870 P.2d 299 (1994), the court granted the motion on October 31, 2006, finding that the act of watering the nearby lawn and trees was not sufficiently related to any damage to the sidewalk caused by tree roots. Appellant brought a motion for relief from judgment pursuant to CR 60(b) a year later, arguing that newly discovered evidence that a tree had been removed from the area sometime in the past may have contributed to the sidewalk's condition. The trial court denied relief, finding that any action of the prior property owners in removing the tree would not justify liability to the current owner.
The City of Spokane sought summary judgment dismissal in May, 2007, asserting both that it was untimely added to the litigation and there was no basis for liability since the City was unaware of the defective sidewalk. The trial court granted the motion September 14, 2007, finding that the City had no notice of the condition of the sidewalk. The court also found that the failure to timely add the City to the litigation was not the result of excusable neglect. Appellant's motion for reconsideration was denied the following month. She then appealed to this court from all of the noted rulings.
This court reviews a summary judgment de novo, performing the same inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn from them, are viewed in the light most favorable to the non-moving party. Id. If there is no genuine issue of material fact, summary judgment will be granted if the moving party is entitled to judgment as a matter of law. Id.
The general principles involving liability for injuries suffered due to defective sidewalks are well settled. Cities have the authority and obligation to create and maintain sidewalks and other rights of way. E.g., RCW 35.22.280(7) (first class cities). Cities also are liable for defective conditions of which they have constructive or actual notice. Rivett, supra, at 582; Stone v. City of Seattle, 64 Wn.2d 166, 170-171, 391 P.2d 179 (1964); Kennedy v. City of Everett, 2 Wn.2d 650, 653, 99 P.2d 614, amended, 4 Wn.2d 729, 103 P.2d 371 (1940); City of Seattle v. Shorrock, 100 Wash. 234, 245, 170 Pac. 590 (1918). Adjoining property owners are only liable if their actions created a dangerous condition in the sidewalk. E.g., Stone, supra, at 169-170; City of Seattle v. Shorrock, supra, at 245. Application of these principles to the facts of this case establishes that summary judgment was properly granted.
We do not believe that the respective post-judgment motions raised new issues that need to be considered independent of the summary judgment motions.
As to Williams/Parkwood, there is no evidence that it created the dangerous condition. While there was some evidence to suggest that tree roots had caused the sidewalk to rise, there was no evidence to suggest Williams/Parkwood caused that problem. Even if the sole water the trees received had come from the property owner, we do not believe that it is sufficient to find that the property owner created the problem. Where liability for an adjoining owner has been found, it has invariably been because the use (or misuse) of the sidewalk caused a defect. E.g., Stone v. City of Seattle, supra (apartment owner permitted tenants to drive over sidewalk to park cars, causing hole to develop); Groves v. City of Tacoma, 55 Wn. App. 330, 777 P.2d 566 (1989) (similar); James v. Burchett, 15 Wn.2d 119, 129 P.2d 790 (1942) (gravel accumulated on sidewalk from landowner's property). In contrast, this case is much more similar to Coulson v. Huntsman Packaging Prods., Inc., 121 Wn. App. 941, 92 P.3d 278 (2004). There an adjoining property owner paid for landscapers to maintain a planting strip owned by a city. One of the trees on the strip obscured a stop sign, leading to an accident. The court concluded that the "neighborly maintenance" did not amount to control of the land which would lead to liability. Id. at 948. Similarly here, there was no basis for finding Williams/Parkwood liable.
There likewise is no evidence that would support finding that the City of Spokane had any notice, actual or constructive, of the defect in the sidewalk. The City had no record of being notified of the problem before Ms. Green contacted it. When notified, the City promptly directed the property owner to fix the problem. There simply is no evidence that suggests the City knew, or should have known, of the problem with the sidewalk. We conclude, as the trial court did, that summary judgment was proper on this basis.
We thus do not reach the alternative theory that the City was untimely added to this litigation. The trial court made findings that there was no excusable neglect for adding the City after the statute of limitations had run, but did not rely upon the timeliness issue in its order.
We affirm the orders granting summary judgment and denying relief from judgment.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Schultheis, C.J., Brown, J., concur.