Joshua J. Woolcott v. City Of Seattle ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOSHUA J. WOOLCOTT, ) No. 73514-4-1
Appellant, ] DIVISION ONE
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CITY OF SEATTLE, ' UNPUBLISHED re-
Respondent. ) FILED: Mav 23, 2016
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Cox, J. — Joshua Woolcott appeals the summary judgment dismissal of
his personal injury action against the City of Seattle. Because he fails to
establish that the City owed him any duty, a necessary element of his claim, we
affirm.
In the spring of 2011, Woolcott planned to attend the Seattle Mariners'
opening home game. At about 7 p.m., he walked towards the stadium with
friends on the sidewalk, approaching the intersection of South Royal Brougham
Way and Fourth Avenue South.
A police officer at the middle of this intersection blocked westbound
vehicle traffic while waving Woolcott and other pedestrians through. Woolcott
stepped off the curb and into a pothole he had not noticed, breaking his foot. He
admits this pothole "was not located on the painted crosswalk markings" at the
No. 73514-4-1/2
intersection.1 Instead, this pothole was toward the middle of the intersection.
Woolcott planned to walk "straight across from the northeast curb corner to a
point directly across at the same spot on the southeast corner," a route parallel to
the marked crosswalk.2
Woolcott commenced this action, claiming that the City failed to keep the
intersection safe for ordinary travel. The City moved for summary judgment,
arguing that Woolcott failed to establish that it had violated its duty of care.
Specifically, it argued that, because Woolcott crossed outside of a marked
crosswalk, it did not owe a duty to maintain that portion of the street safe for
pedestrian travel. The court granted the motion for summary judgment,
dismissing Woolcott's claims.
Woolcott appeals.
DUTY
Woolcott argues that the City owed a duty to keep the street area outside
the marked crosswalk reasonably safe for pedestrian travel. We hold there is no
such duty under the circumstances of this case.
Courts may grant summary judgment ifthere is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.3
When ruling on summary judgment, the trial court considers the evidence in the
1 Brief of Appellant at 4.
2 Clerk's Papers at 122.
3 Wash. Fed, v. Harvev. 182 Wash. 2d 335, 340, 340 P.3d 846 (2015) (quoting
Lvbbert v. Grant County. 141 Wash. 2d 29, 34, 1 P.3d 1124 (2000)).
No. 73514-4-1/3
light most favorable to the nonmoving party.4 We review de novo summary
judgment, applying the same standards as the trial court.5
"In order to recover on a common law claim of negligence, a plaintiff 'must
show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a
resulting injury, and (4) the breach as the proximate cause of the injury.'"6
Whether a municipality owes a duty in a particular situation is a question
of law.7 We review de novo questions of law.8
The sole issue before us is whether a duty existed. "It is well established
that a municipality has the duty 'to maintain its roadways in a condition safe for
ordinary travel.'"9 We "must decide not only who owes the duty, but also to
whom the duty is owed, and what is the nature of the duty owed."10 "[T]he
answer to the third question defines the standard of care."11
4 Young v. KevPharm.. Inc.. 112 Wash. 2d 216, 226, 770 P.2d 182 (1989).
5 Wash. Fed.. 182 Wash. 2d at 339.
6 Wuthrich v. King County, 185 Wash. 2d 19, 25, 366 P.3d 926 (2016) (quoting
Lowman v. Wilbur. 178 Wash. 2d 165, 169, 309 P.3d 387 (2013)).
8 Lyons v. U.S. Bank Nat'l Ass'n. 181 Wash. 2d 775, 783, 336 P.3d 1142 (2014).
9 Wuthrich, 185 Wash. 2d at 25 (quoting Owen v. Burlington N. Santa Fe R.R.. 153
Wash. 2d 780, 786-87, 108 P.3d 1220 (2005)).
10 Keller v. City of Spokane. 146 Wash. 2d 237, 243, 44 P.3d 845 (2002).
11 Id.
No. 73514-4-1/4
Courts must consider the intended use of a street.12 "[T]he law directs
pedestrians to use marked crosswalks."13 Thus, cities must ensure that
crosswalks are safe for pedestrians.14 In contrast, cities have no duty to ensure
that pedestrians can safely cross the street where there is no crosswalk.15
RCW 46.04.160 defines a "crosswalk" as:
the portion of the roadway between the intersection area and a
prolongation or connection of the farthest sidewalk line or in the
event there are no sidewalks then between the intersection area
and a line ten feet therefrom, except as modified by a marked
crosswalk.^
This court considered the scope of the duty a municipality owed to a
pedestrian in McKee v. City of Edmonds.17 There, Mary McKee tripped while
crossing a street in downtown Edmonds. Both ends of the block had marked
crosswalks. She became distracted and attempted to cross the street mid-block.
Just before reaching the center of the street, she tripped in a pothole, fracturing
her leg. The marked crosswalks were unobstructed and properly maintained
when she fell.
She sued the City for negligence, arguing that jaywalking was customary
and foreseeable at the area of her fall. She admitted that she was jaywalking,
12 Xiao Ping Chen v. City of Seattle. 153 Wash. App. 890, 903, 223 P.3d 1230
(2009).
13 id at 906.
14 Id at 907.
15 Hansen v. Wash. Nat. Gas Co., 95 Wash. 2d 773, 778, 632 P.2d 504 (1981).
16 (Emphasis added.)
17 54 Wash. App. 265, 773 P.2d 434 (1989).
No. 73514-4-1/5
but, nevertheless, argued that the City owed her a duty. The superior court
dismissed her action, and this court affirmed.
This court quoted the supreme court's opinion in Hansen v. Washington
Natural Gas Co.18 to address the scope of the municipality's duty:
Plaintiff was jaywalking. In effect he selected and created his
own crosswalk mid-block, and insists the city should have made it
safe for him. To permit him to recover on the basis that the city
was negligent would require us to hold that the city must maintain
the full block of a street safe for pedestrian cross travel when the
sidewalk, or even a portion thereof, is blocked. This we will not do.
At the maximum, plaintiff would have [had] to walk no more than
one-half block to reach a crosswalk.[19]
Here, there is no evidence that the marked crosswalk was blocked, full, or
otherwise unusable. Nevertheless, Woolcott chose to step into the street outside
the marked crosswalk. There simply is no duty the City owed him to make this
area safe for his travel.
This court specifically rejected the argument in McKee that foreseeability
created a duty. We do the same here, for the same reasons.
Woolcott argues that the marked crosswalk serves merely as a guide for
pedestrian traffic and does not determine the scope of the duty owed. We
disagree.
Under RCW 46.04.160, the crosswalk markings established the crosswalk
at this intersection. Thus, the markings were not merely a guide for pedestrians.
Additionally, both Hansen and McKee stand for the principle that the
scope of the duty owed under the circumstances here is defined by the
18 95 Wash. 2d 773, 632 P.2d 504 (1981).
19 McKee. 54 Wash. App. at 267.
5
No. 73514-4-1/6
availability of unobstructed, marked crosswalks. Woolcott fails to cite any
persuasive authority to the contrary.
Woolcott argues that the police officer directed him to cross the
intersection as he did. The record does not support this argument.
Woolcott testified by declaration that he entered the intersection when an
officer directing traffic waved pedestrians into the intersection. But nothing in
Woolcott's declaration, or anywhere else in the record, indicates that the officer
directed Woolcott to cross outside of the marked crosswalk.
The record shows that officers directing traffic after Mariners games, when
pedestrian traffic is heavy, sometimes allow pedestrians to cross "all ways" or
diagonally at the intersection. But nothing in the record establishes that officers
were doing so before the Mariners game when Woolcott crossed the intersection.
Accordingly, this argument is unpersuasive.
Woolcott also argues that, under Berqlund v. Spokane County,20
foreseeability determines the City's duty. We disagree.
In that case, Spokane County built a bridge for both pedestrian and
automobile traffic.21 The plaintiff was injured when a car struck her as she
crossed the bridge.22 The supreme court determined that the county had a duty
to make the bridge reasonably safe for pedestrians.23 But this duty did not arise
20 4 Wash. 2d 309, 103 P.2d 355 (1940).
21 ]d at 311.
22 id at 312.
23 Id. at 317.
No. 73514-4-1/7
merely because it was foreseeable that pedestrians would use the bridge.
Rather, the duty arose because the county invited pedestrians to use the bridge.
The supreme court noted, "It is the invitation, expressly or impliedly extended to
the public, that imposes the obligation."24
Here, as explained earlier, Woolcott fails to establish that the City invited
him to cross the intersection outside of the marked crosswalk. Accordingly,
under Berglund, the City did not owe a duty to make that part of the intersection
safe for pedestrians.
Finally, Woolcott argues that his use of the street was not unlawful. Thus,
he contends his use goes to the issue of contributory negligence, not duty. We
disagree.
In this case, the City's duty turns on whether it invited Woolcott to cross
where he did. Accordingly, whether Woolcott crossed in the marked crosswalk
goes to the City's duty. Whether it may also go to Woolcott's contributory
negligence is irrelevant. Thus, this argument is unpersuasive.
We affirm the summary judgment order.
^
WE CONCUR:
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24
Id.