Opinion
No. 65931-6-I.
January 10, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-2-37419-0, Michael J. Trickey, J., entered July 24, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Cox, JJ.
After Laura Williams fell on an icy sidewalk outside of her apartment, she filed this negligence action against the City of Seattle. But a municipality has no general duty to keep its roads and sidewalks free of ice, and Williams failed to satisfy her burden of demonstrating a factual issue as to whether the City created or had any notice of the alleged hazardous condition. We therefore affirm the trial court's dismissal of Williams' claims on summary judgment.
FACTS
During the early morning hours of November 28, 2005, Laura Williams left her apartment at 5231 39th Avenue S. in Seattle to catch a bus to work. As she stepped onto the sidewalk adjacent to the apartment driveway, she "suddenly and violently slipped and fell," fracturing her ankle. An unidentified man approached Williams while she lay on the ground and suggested that she had slipped on "black ice." According to Williams, the ice "was not visibly detectible." After the accident, Williams took photographs of water running from a crack between the paved apartment driveway and the sidewalk. The water flowed downhill over the sidewalk at the spot where Williams fell and then "back toward the street."
On October 29, 2008, Williams filed this action against the City of Seattle, alleging that the City had negligently allowed water from leaking waterlines to flow over the sidewalk and freeze. Williams eventually amended her complaint to eliminate any reference to leaking waterlines and to allege that "running water that travelled downhill, over and upon a public sidewalk" had frozen on the sidewalk and that the City knew or should have known that the running water created a dangerous condition.
The City moved for summary judgment. In support, the City relied on declarations from Richard Eilman and Roy Elliott. Eilman, a Seattle Public Utilities (SPU) employee, investigated SPU records and found no reports of broken waterlines that could have caused the surface water that Williams observed.
Elliott, a licensed hydrologist, determined that surface water in the area of the accident was the result of seepage from natural springs and ground water that drained from the bottom of a nearby hillside. He concluded that any seepage "was a naturally occurring phenomenon and was not caused, controlled, altered or changed by the City of Seattle or by the installation of any sidewalks or roadways." Elliott acknowledged the "capping effect" of the apartment complex parking lot and the concrete sidewalk that caused water to flow up through the sidewalk expansion joints, but explained that "[w]ith or without these structures that water would seep and flow from the underground springs and down the hill as shown in the photographs that I reviewed."
The trial court granted the City's motion for summary judgment.
Standard of Review
We review an order of summary judgment de novo and determine whether the supporting materials, viewed in the light most favorable to the nonmoving party, demonstrate "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."
CR 56(c); Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985).
Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2553-554, 91 L.Ed.2d 265 (1986)).
DECISION
In order to maintain her claim of negligence, Williams was required to establish, among other things, that the City owed her a duty of care. The threshold determination of whether a duty exists is a question of law.
McCluskey v. Handorff-Sherman, 125 Wn.2d 1, 6, 882 P.2d 157 (1994).
Degel v. Majestic Mobil Manor, Inc., 129 Wn. App. 43, 48, 914 P.2d 728 (1996).
A municipality owes a duty of ordinary care to all persons to maintain public sidewalks in a condition that is reasonably safe for pedestrians. But the City has no general duty to prevent ice from forming on public roads or sidewalks. Rather, any such duty is conditional and arises only if (1) the municipality has notice of a dangerous condition that it did not create and (2) a reasonable opportunity to correct the condition before liability arises.
See Keller v. Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002); Hoffstatter v. City of Seattle, 105 Wn. App. 596, 600, 20 P.3d 1003 (2001).
See Nibarger v. Seattle, 53 Wn.2d 228, 229, 332 P.2d 463 (1958).
Nibarger, 53 Wn.2d at 229; see also Laguna v. Washington State Dept. of Transportation, 146 Wn. App. 260, 263, 192 P.3d 372 (2008) (government entity has no duty to use anti-icing chemicals merely because weather conditions exist that are likely to produce icy conditions).
Here, the record contains no evidence of any prior complaints about ice on the sidewalk at the location of Williams' fall. Nor did Williams submit any evidence suggesting when the ice formed or how long it was present before her fall. She therefore failed to demonstrate any factual issue as to whether the City had actual or constructive notice of the alleged dangerous condition.
See Nibarger, 53 Wn.2d at 230.
Williams initially alleged that a leaking waterline was the source of the water that froze on the sidewalk. No evidence supported that claim, and Williams later abandoned it. She now alleges that the City "capped" the flow of water from the natural springs and negligently redirected the flow over the sidewalk. But contrary to Williams' assertion, Elliott's declarations provide no support for this claim.
Elliott noted the capping effect of a concrete retaining wall and a paved parking lot, but there is no evidence that the City built those structures, which were apparently located on private property belonging to the apartment complex. Elliott also concluded that the City's construction of the sidewalk and roadways did not control or alter the general flow of the water from the natural springs, which continued to follow "its normal downward flow." Williams did not submit or identify any controverting evidence. Viewed in the light most favorable to Williams, the evidence does not support an inference that the City altered the natural course of the water or redirected the flow over the sidewalk. Nor has Williams cited any authority suggesting that the mere presence of water on a sidewalk constitutes a hazardous condition.
Williams contends the trial court improperly permitted Roy Elliott to file a second declaration "without notifying the court." But CR 56(c) authorizes the moving party to file rebuttal documents "not later than 5 calendar days prior to the hearing." Elliott's second declaration was filed 7 days before the summary judgment hearing and responded to Williams' new theory about the source of the water that froze on the sidewalk. The trial court did not err in considering Elliott's second declaration.
In her pro se opening and reply briefs, Williams relies primarily on factual assertions unsupported by any reference to the record that was before the trial court when it ruled on the summary judgment motion. These include hearsay statements from neighbors, a detailed description of Williams' injury, and references to events occurring after the trial court's ruling. Williams also alleges that she was unaware of the date of the summary judgment hearing and that her attorney did not present all available evidence to the trial court in opposition to the City's summary judgment motion. Because Williams failed to submit any of these matters to the trial court in the form of admissible evidence, we cannot consider them on appeal. See Lewis v. Bell, 45 Wn. App. 192, 197, 723 P.2d 1209 (1986) (on review of summary judgment, appellate court can review only those materials submitted to the trial court).
In summary, Williams has failed to demonstrate a genuine factual issue as to whether City had actual or constructive notice of the alleged dangerous condition of the sidewalk or to identify any other basis for the imposition of liability on the City for the icy sidewalk. The trial court properly dismissed her claims on summary judgment.
Affirmed.
WE CONCUR: