Opinion
No. 49582-8-I
Filed: August 5, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 99-2-16229-3, Hon. Mary Yu, November 5, 2001, Judgment or order under review.
Counsel for Appellant(s), Jeffrey J. Donchez, Suite 101, 7500 212th St. SW, Edmonds, WA 98026-7614.
Dan B. Oros, Attorney At Law, 207 E Edgar St, Seattle, WA 98102-3108.
Jeffrey J. Donchez, Suite 101, 7500 212th St. SW, Edmonds, WA 98026-7614.
Dan B. Oros, Attorney At Law, 207 E Edgar St, Seattle, WA 98102-3108.
Counsel for Respondent(s), Aloysius G. Lingg, Forsberg Umlauf, 900 4th Ave Ste 1700, Seattle, WA 98164-1039.
John J. Hutson, O'Brien Hutson Boe, 15500 S.E. 30th Place, Ste 201, Bellevue, WA 98007.
Kenneth M. Roessler, Ste 1700 900 4th Ave, Seattle, WA 98164.
Lysianne and Mark Evans appeal the trial court's grant of summary judgment of their claims against the City of Seattle and Gary Merlino Construction Co. There was no genuine issue of material fact whether the area covered by asphalt was a parking strip, not a sidewalk. Likewise, there were no genuine issues of material fact whether the depression in the parking strip was unreasonably dangerous. And the trial court was not required to consider whether the defects in the sidewalk and parking strip together created an unreasonably dangerous condition. We affirm. Lysianne Evans (Evans) tripped and fell while walking from a sidewalk to a corner of a nearby street. She alleges that her fall was caused by defects in the sidewalk and adjacent parking strip. She sued the City of Seattle, the Gary Merlino Construction Co., which had performed work on a manhole next to the site of the accident, and others. Evans alleged that Merlino created a depression in the parking strip that caused her injuries.
The City moved for summary judgment, and Merlino joined in the motion. The trial court granted summary judgment of the claims against both defendants. Evans appeals. Evans argues that the trial court erred in granting summary judgment because genuine issues of material fact remained. She argues that the proper characterization of the area of the fall as either a parking strip or a sidewalk created a genuine issue of material fact. She also argues that the trial court erred in deciding that the depression in the parking strip was not "unreasonably dangerous." Finally, she argues that the trial court erred in deciding that the areas in question were not unreasonably dangerous without deciding whether the combination of the defects in the two areas rendered the place where she fell unreasonably dangerous. We disagree with each contention.
We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. A material fact is one upon which the outcome of the litigation depends. Summary judgment is proper when reasonable minds could reach but one conclusion regarding the material facts. All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party. We review questions of law de novo. Without citation to any authority, Evans argues that the trial court erred in deciding as a matter of law that the parking strip remained such after it was covered with asphalt. Even if we were to give some limited credence to her characterization, this is insufficient to withstand summary judgment. The evidence in the record shows that reasonable persons could not differ on this question. The strip is located in the usual location of parking strips, between the sidewalk and the street. The strip was covered with asphalt, which is visually distinguishable from the concrete of the sidewalk. The different appearances of these materials reveal clearly the curved outline of the border between the strip and the sidewalk. At one end of the strip, a circle of dirt was left uncovered by asphalt. It retains the appearance of a parking strip. Merely paving an area does not create a sidewalk. Evans misplaces reliance on the testimony of the city's engineer. She argues that he stated that the area was "obviously asphalted over for the purpose of discouraging landscaping and encouraging pedestrian flow." This is incorrect. He stated that the primary reason people place asphalt over a parking strip is to discourage plants from growing. He stated that in such cases people use thin layers of asphalt, rather than thick layers of asphalt over compacted soil, because it is not intended for use other than "people walking and to stop plants to grow." This he contrasted with the installation of pavement for "use by vehicles of anything heavy or even a lot of traffic by human beings." Pedestrian use of a parking strip is to be anticipated, and is not inconsistent with continued characterization of the area as a parking strip, rather than a sidewalk. In any event, this testimony does nothing to inform our judgment of what a sidewalk is. Evans also argues that the trial court erred in deciding as a matter of law that the defects in the parking strip were not "unreasonably dangerous," because it relied on a lower standard of care applying to parking strips derived from this court's decision in Hoffstatter. This too is incorrect. Evans alleges that the City is liable for her injuries because it negligently failed to maintain the parking strip in a condition safe for pedestrians, and that Merlino is liable because it negligently damaged the parking strip, creating an unreasonable risk of harm to pedestrians. To establish a claim of negligence, a plaintiff must show (a) that the defendant owed a duty of care to the plaintiff; (b) the defendant breached that duty; (c) injury to the plaintiff resulted; and (d) the defendant's breach was the proximate cause of the injury. The city has a duty to maintain its parking strips and sidewalks in a "reasonably safe" condition. Whether the duty of maintenance has been breached is a question of fact. In each case this determination depends on the particular facts of the case. In Hoffstatter, this court reviewed a trial court determination that a parking strip was not unreasonably dangerous. The court decided as a matter of law that the parking strip, which was covered with unevenly placed bricks and contained one tree, was not unreasonably dangerous. We noted that generally, "a reasonably safe condition is not the same for a parking strip as it is for a sidewalk because their purposes are different. It is certainly true that pedestrian use of parking strips must be anticipated. But they are not sidewalks and cannot be expected to be maintained in the same condition." We also noted that it is reasonable to expect that a pedestrian will pay closer attention to surface conditions while crossing a landscaped parking strip than when walking on a sidewalk. The trial court did not err in granting summary judgment on this issue because there was no genuine issue of material fact whether the depression in the planting strip was unreasonably dangerous. The parking strip at issue in Hoffstatter, which this court held to be not unreasonably dangerous, was more dangerous than the parking strip at issue here. Evans introduced testimony that the depression in the parking strip was approximately 28 inches in length and 1 inches deep. In contrast, the bricks on the parking strip in Hoffstatter were uneven and loose because some had been dislodged by the roots of the tree planted in the strip. When we compare the two cases, it is clear that the trial court properly decided the area of the parking strip was not unreasonably dangerous. The trial court also properly decided that the crack in the sidewalk did not render it unreasonably dangerous.
CR 56(c).
Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997).
Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
Mains Farm Homeowners Ass'n, 121 Wn.2d at 813.
A parking strip is a "[l]andscaped area between the sidewalk and the street curb also known as a planting strip." Hoffstatter v. City of Seattle, 105 Wn. App. 596, 598 n. 1, 20 P.3d 1003 (2001).
Margoles v. Hubbart, 111 Wn.2d 195, 199, 760 P.2d 324 (1998) ("[I]f the plaintiff, as nonmoving party, can only offer a `scintilla' of evidence, evidence that is `merely colorable', or evidence that `is not significantly probative', the plaintiff will not defeat the motion.").
Hoffstatter, 105 Wn. App. at 600.
Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991).
Kennedy v. City of Everett, 2 Wn.2d 650, 653, 99 P.2d 614 (1940); Fletcher v. City of Aberdeen, 54 Wn.2d 174, 176, 338 P.2d 743 (1959).
Kennedy, 2 Wn.2d at 653.
Kennedy, 2 Wn.2d at 653-54.
Hoffstatter, 105 Wn. App. at 600.
Hoffstatter, 105 Wn. App. at 600.
Hoffstatter, 105 Wn. App. at 601.
Hoffstatter, 105 Wn. App. at 599-600.
Finally, Evans argues that the trial court erred in deciding that the sidewalk and parking strip were each individually not unreasonably dangerous, but did not consider whether they created a dangerous condition in combination. We disagree. Evans alleges that the 1 inch depression at the edge of the sidewalk, in combination with a crack in the sidewalk, creates an unreasonably dangerous condition. Nothing in the record establishes the depth of the crack in the sidewalk. It appears that Evans contends that if the sidewalk and the parking strip were not flush at all points, they created a dangerous condition. But she offers no authority to support this argument. Thus, the trial court was not required to consider this argument.
We affirm the order granting summary judgment.