Hansen v. Washington Natural Gas Co.

James, A.C.J.

(dissenting)—I would affirm. To recover damages for the negligence of another, a complainant must prove (1) the existence of a duty, (2) a breach of that duty, (3) causation, and (4) damages. Hojem v. Kelly, 93 Wn.2d 143, 606 P.2d 275 (1980). In granting defendants' motion for a judgment n.o.v., the trial judge stated:

There is no duty on the part of defendants to make the middle of the street, mid-block, safe for pedestrians who might elect to leave the sidewalk in the middle of the block and angle illegally across the street through a construction area that is open and apparent and safe for cars.

My review of the record impels me to the same conclusion.

I cannot agree with the majority's conclusion that the rule of Owens v. Seattle, 49 Wn.2d 187, 299 P.2d 560, 61 A.L.R.2d 417 (1956), is no longer applicable because this State has adopted comparative negligence. I repeat the majority's quotation from Owens at page 191 with changed emphasis:

A municipality is not an insurer against accident nor a guarantor of the safety of travelers. It is, however, obligated to exercise ordinary care to keep its public ways in a reasonably safe condition for persons using them in a proper manner and exercising due care for their own safety.

(Italics mine.) In this case, there was no evidence that defendants failed to exercise ordinary care to keep West Emerson Street in a reasonably safe condition. Mrs. Hansen testified that although there was no reason why she could not have continued to walk in a westerly direction on the south side of Emerson, she elected to diagonally cross in the middle of the block. She saw that an excavation had been made in the street and that it was covered with a plank which was wet, but she nevertheless stepped on it, slipped and fell. She testified as follows:

Q As you walked out into the street, angling down the street toward the bus, you were still aware that there were these planks covering an excavation in the street as you walked toward it, were you not?

A Part of it only. I mean, it was filled with cement, and part of it was just wood.

Q With the wood?

A Uh-huh.

Q But you were aware that the wood was there?

A Yes.

Q And even as you crossed the street toward it, you were aware that it was there?

A Yes.

Q And when you stepped on it, you were aware it was there?

A Yes.

Q And you were aware that you were about to step on it?

A Yeah.

Q And it was after you stepped on it that you fell; is that right?

A Yes.

Q Did you slip—

A Yes.

Q —or did you trip, or what happened? You slipped?

A I slipped.

Q So you actually put your foot on the board and then your foot slipped; is that right?

A Yes.

Q But there was nothing in the world at that point in time that kept you from seeing that those boards were there. You did see the boards and you knew you were going to step on them; is that correct?

A Yes.

Q And you knew that those boards weren't normally in the street; they were something to do with the men that were working there. Isn't that right?

A Yeah, I knew they were to fill up so the traffic could go over there.

Q In other words, the reason they were there was because the men had made a hole there and they wanted to put something over the hole so that cars could go back and forth;—

A Yes.

Q —isn't that right?

A Yes.

Q And the part of the street that you were walking in is a part that is normally reserved for cars to drive in; isn't that right?

A Well, the whole street is supposed to be for cars.

I agree that instruction No. 10 is a correct statement of the law. But if, as in this case, there is no evidence of any failure to "exercise ordinary care to keep the public ways in such a condition that they are reasonably safe for ordinary travel by persons using them in a manner that can be reasonably anticipated" (instruction No. 10), there is no issue of fact to submit to the jury. Mrs. Hansen presented no evidence which would support a finding that at the time she elected to cross Emerson Street it was not "reasonably safe for ordinary travel by persons using [it] in a manner that [could] be reasonably anticipated."

I am at a loss to understand the majority's conclusion that the defendants had a duty to place a "proper barricade" on Emerson Street. A barricade which would have prevented Mrs. Hansen from stepping on the plank would necessarily have prevented the use of the street for vehicular traffic. The defendants' duty was to do whatever was necessary to reasonably make it known that a small portion of the paving had been temporarily replaced with a plank. In Bartlett v. Northern Pac. Ry., 74 Wn.2d 881, 447 P.2d 735 (1968), relied on by the majority as establishing a duty to warn, our Supreme Court stated:

The gist of the decisions in these cases, ... is that the municipality may be chargeable with negligence for failure to maintain warning signs or barriers if the situation along the highway is inherently dangerous or of such character as to mislead a traveler exercising reasonable care.

Bartlett, at 882, quoting Barton v. King County, 18 Wn.2d 573, 576, 139 P.2d 1019 (1943). In this case, not only has Mrs. Hansen failed to prove that the street work was "inherently dangerous," even for pedestrian traffic,¹ but also admitted she was fully aware of the presence of the plank before she stepped on it. The condition of the street was open and could not have misled Mrs. Hansen. Both the jury and the majority have made Washington Natural Gas and the City insurers of Mrs. Hansen.

Moreover, assuming that defendants had a duty to warn Mrs. Hansen of the condition of the vehicular roadway, their purported breach of that duty was not a proximate cause of Mrs. Hansen's injury. The trial judge stated after hearing argument on plaintiff's motion for reconsideration:

I think that the evidence shows that any act of the defendant was not a proximate cause in any event, because under the evidence she saw and understood everything that existed there— . . .

Mrs. Hansen's testimony clearly establishes that even if defendants' warnings were inadequate, that fact would be immaterial. She was fully aware of the situation, never intended to utilize the sidewalk which was clear and unobstructed, and intentionally proceeded, to jaywalk through the middle of an open and visible construction site. As 2 F. Harper & F. James, Torts § 18.2, at 1019 (1956) states, "'Proof of negligence in the air, so to speak, will not do.'"

Finally, in seeking to distinguish Nelson v. Tacoma, 19 Wn. App. 807, 577 P.2d 986 (1978), the majority has stated on page 132, "Here, both sides of the street were disrupted by the construction work, ..." But, whatever the condition of the vehicular portion of the street, it is undisputed that the sidewalk on the south side of Emerson Street was not obstructed in any way. The statement in Nelson at page 811, which the majority quotes, precisely describes Mrs. Hansen's conduct:

Plaintiff was jaywalking. In effect [she] selected and created [her] own crosswalk mid-block, and insists the [defendants] should have made it safe for [her].

Mrs. Hansen's injury was not the proximate result of the breach of any duty owed her by the defendants. Lee v. Sievers, 44 Wn.2d 881, 271 P.2d 699 (1954).

Reconsideration denied September 18, 1980.

Review granted by Supreme Court November 7, 1980.

1 The majority assumes that the street was inherently dangerous. However, the only evidence relating to the inherently dangerous condition was the fact that Mrs. Hansen slipped and fell. Washington cases have consistently recognized that the mere fact of an injury is not sufficient to prove a dangerous condition. See, e.g., Brant v. Market Basket Stores, Inc., 72 Wn.2d 446, 433 P.2d 863 (1967).