Shannon R. Ogier v. City Of Bellevue ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SHANNON OGlER, ) No. 79132-0-I
)
Appellant,
) DIVISION ONE
v.
THE CITY OF BELLEVUE, a municipal ) PUBLISHED OPINION
corporation, )
Respondent. ) FILED: March 2, 2020
)
MANN, A.C.J. — Shannon Ogier appeals the trial court’s order on summary
judgment dismissing her personal injury case against the City of Bellevue (City) arising
from injuries suffered after Ogler ran over an uncovered manhole while driving in
Bellevue. The City alleged that because it had no notice of the defect, it did not owe a
duty to Ogler. The trial court agreed. We reverse.
Ogier was driving west on NE 24th Street in Bellevue on a dark evening in
October 2014, when she drove over an uncovered manhole in the middle of the traffic
lanes. Ogler called 911 to report a “dangerous” situation. The street was partially lit
and the storm drain was not visible without direct light from the responding police
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officer’s headlight. The manhole cover was off to the right side of the lane on the
sidewalk.
Ogler’s car bumper was knocked off. Ogier submitted a claim for property
damages for the reimbursement of her deductible and to her insurer, State Farm. The
City approved the claim and paid the property damage to State Farm and Ogier.
Ogier developed a sharp pain in her shoulder two days after the accident, and
sought physical therapy for the treatment. Ogier submitted a follow-up claim to the City.
The underlying lawsuit ensued.
The City moved for summary judgment dismissal of Ogler’s action. Ogier
responded to the City’s motion and relied on deposition testimony from the following
City employees.
Bellevue Utilities Operations Manager Don McQuilliams was the superintendent
of the storm and surface water department at the time of the incident. He said that the
City has approximately 5,000 to 6,000 covered storm manholes and each cover weighs
approximately 75 to 100 pounds. A common Allen wrench can be used to remove the
bolts that hold the covers down.
During the time of the accident, it was the City’s practice to inspect the storm
drain systems, including the storm manholes once every five years. When the City
inspected the storm drain manholes most recently prior to the accident, no problems
were detected. Outside of the inspections, the City repairs manholes upon receipt of a
specific complaint. Missing manhole covers are reported to the City through a 24-hour
emergency maintenance response number, and a response crew is dispatched
immediately. McQuilliams recalled that the City was notified about the missing cover
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when Ogler reported the incident. He found no other reports of missing or loose covers
in the area.
McQuilliams explained that although persons or entities performing work on the
manholes should obtain a permit ahead of time, ‘nothing actually prevents someone
from simply opening up a storm manhole to look inside.” Private contractors, private
consultants, private locate services, and other utilities such as Puget Sound Energy,
may access the manholes to inspect storm drain pipes. He explained further that
“nobody asks for permission” to remove the covers. McQuilliams said that the City does
not have a system to determine who had accessed the manhole recently, and that
consultants often will not obtain permits. No right of way permits had been issued to
work on the manholes near the accident. McQuilliams did not find any work orders to
indicate that the City had worked on the manholes on NE 24th Street. McQuilliams
stated that he responds to dislodged manhole covers a few times a year. Occasionally
manhole covers will vanish, which McQuilliams attributes to vandalism.
Anthony Badia is a construction lead for the City, working in the storm and
surface water department. He inspected the manhole covers along NE 24th street after
the incident, noticing that they were not bolted down. He said if the manholes are within
the travel lane, like the one Ogier ran over, they should be bolted down. Badia
explained that the purpose of the bolts is to keep the manhole covers “locked down and
prevent them from coming up if a vehicle drives over them, to prevent damage to
personal property or city property, and to prevent any incidents with any pedestrians on
a sidewalk nearby if one does come off.” Badia dispatched a crew to lock down all of
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the covers with bolts on NE 24th street. He said it is not uncommon for the manhole
covers to become loose or go missing.
Jerry Campbell, who works for the storm department, physically inspected the
manholes after the incident. Campbell recalled two instances of manhole covers
popping up. He said that it was unlikely that a vehicle could have knocked the cover off,
and that the cover was likely removed by someone.
The City’s motion for summary judgment contended that because the City had no
notice of the defect, the City did not owe a duty to Ogier. The trial court granted
summary judgment and dismissed Ogier’s action. Ogier appeals.
Ogier argues that the court erred in concluding that the City had no duty to
ensure that city streets and storm drains were safe for the public. We agree
We review summary judgment decisions de novo. Int’l Marine Underwriters v.
ABCD Marine, LLC, 179 Wash. 2d 274, 281, 313 P.3d 395 (2013). “Summary judgment is
proper only where there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Int’l Marine Underwriters, 179 Wash. 2d at 281.
The moving party has the initial burden of proving the absence of an issue of material
fact. Young v. Key Pharm. Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989). When the
moving party is a defendant who meets this initial showing, then the inquiry shifts to the
plaintiff to make “a showing sufficient to establish the existence of an element essential
to that party’s case.” Young, 112 Wash. 2d at 225.
To recover on a claim of negligence, the 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
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as the proximate cause of the injury. Wuthrich v. King County, 185 Wash. 2d 19, 25, 366
P.3d 926 (2016). The question before us is whether the City had a duty.
A municipality has the duty “to maintain its roadways in a condition safe for
ordinary travel.” Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wash. 2d 780, 786-87,
108 P.3d 1220 (2005). Actual or constructive notice is necessary to prove breach of the
duty of care. Nguyen v. City of Seattle, 179 Wash. App. 155, 165, 317 P.3d 518, 523-24
(2014). “But the notice requirement does not apply to dangerous conditions created by
the governmental entity or its employees or to conditions that result from their conduct.”
Nguyen, 179 Wash. App. at 165. The plaintiff is excused from proving notice when the
City should have reasonably anticipated that the condition would develop. Nguyen, 179
Wash. App. at 165. Constructive notice arises if the condition existed for a period of time
so that the municipality should have discovered its existence through the exercise of
reasonable care. Niebarger v. City of Seattle, 53 Wash. 2d 228, 230, 332 P.2d 463 (1958).
‘Whether one charged with negligence has exercised reasonable care is ordinarily a
question of fact for the trier of fact.” Bodin v. City of Stanwood, 130 Wash. 2d 726, 735,
927 P.2d 240 (1996).
Although there is no evidence that the City had actual notice of the missing
manhole cover, a jury could find that the City should have reasonably anticipated this
hazard. The evidence offered by Ogier demonstrates that the City did not regularly
check and monitor the manholes, despite being aware that third parties or vandals could
remove the cover at any time. Further, evidence suggests that the manhole covers on
NE 24th street were not bolted down at the time of the accident, even though it was the
City’s practice to bolt down the covers in the roadway. The evidence also demonstrates
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that while the City has a permit process, the City knows that no one actually applies for
permits before working on the manholes. The City further admits that it has no control
to require third parties to use this process. Finally, the City employees knew of past
instances of missing manhole covers. McQuilliams testified that he knew that manhole
covers sometimes went missing as a result of vandalism. Badia testified that manhole
covers in the road should be bolted down, but it was not uncommon for the manhole
covers to become loose or go missing. And Campbell testified that he knew of
instances of manhole covers popping up or going missing.
The evidence supports that even if the City did not have actual notice, there is a
dispute of material fact whether the City should have reasonably anticipated the hazard
of an uncovered manhole would develop. Nguyen, 179 Wash. App. at 165. Because
there are disputed issues of material fact whether the City breached its duty of care to
Ogier, summary judgment was not appropriate.1
Reversed.
4c1
WE CONCUR:
1 Ogler also argues that the City is equitably estopped from arguing that it is not liable because
the City accepted Ogier’s property damage claim. The City argues that this issue is not properly before
this court. Because we find that the court erred in granting summary judgment, we will not address this
argument. Additionally, the City correctly states that the language and intent of ER 408 is clear.
Therefore, this argument is without merit.
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