Opinion
No. 54725-9-I
Filed: May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-30619-5. Judgment or order under review. Date filed: 07/23/2004. Judge signing: Hon. Mary E Roberts.
Counsel for Appellant(s), Terry E. Lumsden, Law Offices of Terry E Lumsden, 3517 6th Ave Ste 200, Tacoma, WA 98406.
Counsel for Respondent(s), Bruce Conrad Hori, Seattle City Attorneys Office, PO Box 94769, Seattle, WA 98124-4769.
A municipality owes a duty to all persons to maintain its roads in a condition that is reasonably safe for ordinary travel. But in order to establish liability for a dangerous condition that the municipality did not create, a plaintiff must prove that the municipality had notice of the dangerous condition and a reasonable opportunity to correct it. The evidence in this case failed to support an inference that the City of Seattle had notice of hazardous conditions on the Alaskan Way Viaduct in time to correct them before appellant Rosalinda Paisley's automobile accident. Accordingly, we affirm the trial court's entry of summary judgment in favor of the City.
FACTS
Appellant Rosalinda Paisley was injured when her car spun out on the Alaska Way Viaduct shortly after 1:00 a.m. on November 6, 1999. The accident was one of several that occurred on the southbound lanes of the viaduct during the late evening and early morning hours. Viewed in the light most favorable to Paisley, the materials before the trial court established the following sequence of events.
Shortly before midnight on November 5, 1999, Judd Marten lost control of his car as he accelerated southbound on the Columbia Street onramp to the Alaska Way Viaduct. Marten's car spun around to the left and the front end came to a stop against the curb on the east side of the onramp.
At the time of the accident, it was raining hard and the roadway was very wet. Marten stated that his car never reached the southbound lanes of the viaduct, but he believed the rear end of the car may have protruded slightly into the east lane for a short time. Marten, who remained at the scene for about a half-hour, could not recall seeing any fluids leaking from his car. No repairs were made to the engine after the accident. At about 12:26 a.m., Seattle Police Officer Todd Brothers, one of the Seattle police officers who responded to the accident, requested that the Seattle Department of Transportation spread sand on the roadway. In response, a Seattle street maintenance engineer arrived on the scene at about 12:47 a.m. The engineer completed placing sand on a 'small area' of the roadway at about 12:50 a.m. and then left. The amount of sand used did not require a sweeper truck to pick up. Officer Brothers could not recall the precise reason for his request.
Seattle Police Sergeant Michael Teeter, who also responded to Marten's accident, could not recall seeing any fluids leaking from Marten's car. Sergeant Teeter stated that at the point Marten's car stopped, the Columbia Street onramp slopes to the east, away from the southbound lanes of travel. Just north of Marten's car was a drain. According to Sergeant Teeter, any fluids leaking from Marten's car would have flowed to the north and east and then into the drain, away from the southbound lanes of the viaduct. At about 1:00 a.m., Aleksander Dimura was driving southbound on the viaduct when his car hit a patch of oil mixed with water and spun out into the guardrail. The accident occurred about 2 to 3 blocks south of the Marten accident. Seattle Police Officer Russell Johnson, who had earlier assisted at the Marten accident, was dispatched and arrived at 1:07 a.m. As Officer Johnson got out of his patrol car, he noticed that the roadway was 'very slippery' and that at least two lanes were 'a complete slippery, oily, wet mess.'
Clerk's Papers at 95.
Shortly after he arrived at the Dimura accident, Officer Johnson heard Paisley's accident happen just behind him. Paisley stated that she was driving southbound in the center lane of the viaduct when she noticed Dimura's car blocking the lane. As Paisley hit her brakes and attempted to merge into the east lane, her car skidded into another vehicle and then hit the guardrail. Officers ordered the viaduct closed at 1:12 a.m. and requested that a City crew wash the oil off the road.
The record does not clearly establish the precise time of Paisley's accident.
Paisley originally filed this action for personal injuries against Judd Marten. She later named the City as a defendant in an amended complaint filed on January 2, 2003, alleging that the City's negligent maintenance of its roads was the proximate cause of her accident. The City's motion for summary judgment was granted on July 23, 2004.
STANDARD OF REVIEW
When reviewing a grant of summary judgment, an appellate court undertakes the same inquiry as the trial court. We consider the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' A "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).
CR 56(c); White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997).
Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
DECISION
On appeal, Paisley contends the evidence supports an inference that the City had actual notice of the dangerous conditions on the viaduct when police officers investigated the Marten accident and that City employees negligently sanded the onramp after Marten's accident. She argues that genuine factual issues therefore remain as to the City's breach of its duty and proximate cause.
In order to maintain her claim of negligence, Paisley was required to establish, among other things, that the City owed her a duty of care. A municipality owes a duty of ordinary care to all persons to maintain its roads in a condition that is reasonably safe for ordinary travel. But in some circumstances, the existence of such a duty is conditional. A municipality "must have (a) notice of a dangerous condition which it did not create, and (b) a reasonable opportunity to correct it before liability arises for negligence from neglect of duty to keep the streets safe." Marten's accident occurred on the Columbia Street onramp, approximately 600 feet north of the Dimura and Paisley accidents. Marten told one of the investigating officers that he had spun out after accelerating too quickly. Contrary to the suggestion in Paisley's brief, none of the responding officers stated that the southbound lanes of the viaduct near Marten's accident were dangerously slippery. Although one of the officers requested a sanding truck, the record indicates that only a 'small area' of the roadway was sanded. None of these circumstances surrounding Marten's accident support an inference that there was a problem with the main southbound lanes or that the condition of the Columbia Street onramp was similar to the condition of the southbound lanes of the viaduct at the location of the Dimura and Paisley accidents.
McCluskey v. Handorff-Sherman, 125 Wn.2d 1, 6, 882 P.2d 157 (1994).
Keller v. Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002).
Leroy v. State, 124 Wn. App. 65, 98 P.3d 819, 821 (2004).
Leroy v. State, 124 Wn. App. at 69 (quoting Nibarger v. Seattle, 53 Wn.2d 228, 229, 332 P.2d 463 (1958)).
Based on the record before this court, the City did not have actual knowledge of the condition of the southbound lanes until police officers responded to the Dimura accident. When Officer Johnson arrived at the scene at about 1:07 a.m., he noticed that at least two lanes of the roadway were very slippery as he walked toward Dimura's car. One of the responding officers ordered the viaduct closed at 1:12 a.m., five minutes later. Officer Johnson explained that closing the viaduct is not an instantaneous process and requires 'many patrol [cars] to shut down the on-ramps and divert traffic off the viaduct itself onto the surface streets.' Even when the foregoing circumstances are viewed in the light most favorable to Paisley, the evidence was insufficient to support an inference that the City had actual notice of the dangerous conditions and enough time to correct those conditions before Paisley's accident, which occurred shortly after Officer Johnson arrived at the Dimura accident.
Clerk's Papers at 95.
Nor does the record provide any support for Paisley's claims that leaking oil from Marten's car was the cause of her accident and that the City was negligent in sanding the roadway after Marten's accident. No witness recalled seeing any fluid leaking from Marten's car. Moreover, according to Sergeant Teeter's uncontroverted declaration, the onramp near Marten's car sloped to the east and any leaking fluids would have flowed to the north and east, into a drain and away from the southbound lanes of the viaduct.
Finally, Paisley has not identified any evidence supporting an inference that City employees failed to meet the standard of care when sanding a 'small area' after Marten's accident. Although the record does not reveal why the sanding truck was requested, there is no evidence that the sand was negligently applied or that it was inadequate for the conditions. Paisley therefore relies solely on conjecture and speculation when suggesting that oil from Marten's car flowed to the main roadway from the onramp and caused her car to spin out some 600 feet farther south. Reliance on speculation is insufficient to defeat summary judgment.
See Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
Because the evidence before the trial court failed to raise a genuine factual issue as to whether the City breached its duty of care, the trial court properly entered summary judgment.
Affirmed.
GROSSE, J., AGID, J. and KENNEDY, J.