Opinion
No. 26822-5-III.
December 16, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-2-00960-9, Salvatore F. Cozza, J., entered January 7, 2008.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Brown, J.
Appellant Elizabeth Haller suffered injuries when she slipped on a defective area of sidewalk outside of River Park Square Mall in downtown Spokane. She sued the City of Spokane, the mall's operators, and various other persons and entities. The trial court dismissed her claim against River Park Square, ruling that there was no evidence it caused the condition of the sidewalk outside its establishment. Ms. Haller's appeal challenges that determination. Agreeing that the trial court correctly granted summary judgment, we affirm.
FACTS
On May 23, 2005, Elizabeth Haller was injured when she tripped and fell on the sidewalk in front of the Eddie Bauer store adjacent to Main Avenue in River Park Square (RPS) in Spokane. Ms. Haller was walking at lunchtime with her daughter when her foot caught on a raised part of the tiled sidewalk, causing her to trip and fall. She broke her hip and shoulder. Ms. Haller had walked on this section of sidewalk many times.
The Eddie Bauer store is located at 708 W. Main Avenue, Spokane.
The sidewalk in front of the Eddie Bauer store is composed of 4" x 4" x ¾" Endicott tile. The brick tiles were installed in 1978. At the east end of the Eddie Bauer store, the tiles abut an aggregate concrete sidewalk, which runs in front of the Talbots Fashions, Inc. (Talbots) store along Main Avenue. At the junction where the tile meets the aggregate, some of the tiles are cracked and broken across the width of the sidewalk, from the building to the street. Dan Eaton, City of Spokane Permit Coordinator for the Engineering Services Department, testified that he observed some overlaid concrete slurry over some of the concrete areas as patch material. Ms. Haller's expert, Richard Gill, testified that the tile Ms. Haller tripped on was raised 7/16 of an inch above the walking surface. He opined that this was caused by insufficient compaction of the substrata when the tiles were installed in 1978. He also concluded that the settling of the sidewalk and the resulting broken and cracked tiles, raised lip and depression in the surface occurred over a period of time and existed for years preceding the May 2005 incident. Mr. Eaton additionally testified that he visually inspected the area, and that any imperfection in the height of the tiles and abutting concrete was slight and after dragging his feet over the area, he did not find a legitimate tripping hazard. Neither the City of Spokane (City) nor RPS has ever received a complaint about the condition of the sidewalk prior to Ms. Haller's fall.
The sidewalk where Ms. Haller fell is owned by the City. The sidewalk is a public right-of-way. The building which houses the Eddie Bauer store is not owned by RPS. The owners, Mathilda Ambs Botz, Emily Roberts Kruse, and Sally Roberts, lease the building to RPS through Citizens Realty Company. RPS sublets the ground level space to Eddie Bauer. The sublease, between Eddie Bauer and RPS, provides that RPS has control of the common areas, which include the sidewalks. The sidewalk is used for ingress and egress to the businesses along Main Avenue.
RPS security and maintenance staff inspect the sidewalk daily for debris and hazards. RPS staff and the "Clean Team" sweep, wash, and blow off the sidewalk in front of the Eddie Bauer store on a daily basis. If a portion of the sidewalk was in disrepair, depending on the repair needed, RPS staff would repair the sidewalk, as neighborly repair. In the past, RPS staff has made minor repairs to the areas on the sidewalk along Main Avenue including a crack in front of Nordstrom's, a hole in front of Anderson Emami Clothiers, and damage to a tree well in front of Talbots.
The Clean Team is part of the Downtown Spokane Partnership and maintains downtown Spokane.
On February 28, 2007, Ms. Haller filed a complaint for damages against RPS and the City claiming both parties were negligent for failure to maintain the sidewalk in a safe condition. Three months later, RPS filed a motion for summary judgment. Subsequently, the City filed a motion for dismissal or in the alternative, summary judgment. On December 7, 2007, the trial court heard both parties' motions. The trial court denied the City's motion for dismissal on the basis there were unresolved disputed facts. The trial court granted RPS's motion for summary judgment. With regard to RPS, the court found that under Rivett v. City of Tacoma, 123 Wn.2d 573, 870 P.2d 299 (1994), unless the abutting property owner contributed to the state of the sidewalk, there is no liability on the property owner. There was no evidence before the court that RPS did anything to contribute to the condition. The written order granting RPS's motion for summary judgment and dismissal with prejudice was entered on January 7, 2008.
Ms. Haller appeals the trial court's order granting RPS's motion for summary judgment.
The City filed a "Brief of Respondent" that reiterates Ms. Haller's position and requests the appellate court reverse the trial court's order. We do not believe the City is a proper party to this appeal. It does not appear to have filed a cross claim against RPS. It also has not sought permission to file an amicus curiae brief. Whatever interest the City has in keeping RPS in the case is not a formal one that arises from any cross claim or indemnity action. Most certainly the City is not a respondent. If it is an aggrieved party, it perhaps could have sought status as a co-appellant. RPS asks that the City's brief be disregarded as it was not afforded an opportunity to respond to the City's brief. We have chosen to disregard the City's brief.
ANALYSIS
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 nonmoving 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, 123 Wn.2d 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, 64 Wn.2d at 169-170; Shorrock, 100 Wash. at 245. Application of these principles to the facts of this case establishes that summary judgment was properly granted.
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). Here, there is no evidence that RPS caused the condition of the sidewalk. Appellant's own expert believed the problem arose from the original installation of the tiles in 1978, long before the RPS mall was even built. Under these circumstances, RPS is clearly not liable to Ms. Haller because it is not responsible for causing the condition of the sidewalk.
Ms. Haller contends that RPS is liable for not notifying the City of the defect in the sidewalk. We do not believe the statutory obligation to report defects to the City gives rise to a cause of action by an injured pedestrian. Compare Birdsall v. Abrams, 105 Wn. App. 24, 29, 19 P.3d 433 (city ordinance requiring property owner to remove snow from sidewalk did not make property owner liable to pedestrian injured by failure to remove snow), review denied, 144 Wn.2d 1009 (2001). Rather, the case law noted above places liability on the property owner only for actions that cause damage to the sidewalk. If an adjoining landowner owes anything under the city ordinance, it is an obligation to the City and not the public at large. Whether the ordinance permits the City to seek indemnification against a property owner who fails to give notice is not a question that is presented in this action. Most likely the issue would seldom arise since a city typically is liable only if it has notice of the condition, which is what the Spokane ordinance attempts to compel a property owner to do. If the City already had notice, then the landowner's failure to act would be meaningless. If the City did not have actual or constructive notice, then it would not be liable. In either circumstance, the failure of the property owner to notify the City would not have caused harm to the City.
Whether the sidewalk actually is defective is a disputed question and was one reason the trial court denied the City's motion for summary judgment.
The record does not show that RPS did anything to cause the sidewalk condition. The City ordinance requiring RPS to report sidewalk problems does not give Ms. Haller a private cause of action. Accordingly, the trial court correctly granted summary judgment. The ruling is affirmed.
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. and BROWN, J., concur.