Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

KAREN HATCH, a married woman,               )
                                            )       No. 66336-4-I
                      Appellant,            )
                                            )       DIVISION ONE
       v.                                   )
                                            )
KING COUNTY, a municipal                    )       UNPUBLISHED OPINION
corporation; and SNOQUALMIE                 ) 
VALLEY SCHOOL DISTRICT No. 410              )
                                            )
                      Respondent.           )       FILED: January 30, 2012

       SPEARMAN, J.  --  Karen Hatch appeals the summary judgment dismissal of her 

lawsuit against King County and the Snoqualmie Valley School District No. 410 based 

on injuries she sustained when she fell while walking from her parked car to an 

elementary school.  We reverse. There are genuine issues of material fact regarding 

constructive notice of an unsafe condition, whether the concrete wall footer was open 

and obvious, and whether the defendants should have anticipated potential harm even 

if the dangerous condition was open and obvious.  

                                            FACTS

       On December 1, 2006, Karen Hatch drove to Fall City Elementary School to pick 

up her son from kindergarten.  Because the school's parking lot was full, Hatch parked  

No. 66336-4-I/2

on the road in front of the school.  In order to reach the student pick up area from 

where she was parked, Hatch had to cross a sidewalk and step over a concrete wall 

footer adjacent to the sidewalk.  The concrete wall footer was approximately six inches 

high and was the remnant of an old wall or fence that once enclosed the school.  The 

wall footer ran almost the entire length of the 100-foot sidewalk.  Beyond the wall 

footer, there was a grassy area that bordered the school parking lot.    

       While Hatch had always previously parked in the school's parking lot, the street 

parking along the road was also routinely used to access the school.  Hatch had two 

five year-old children with her on the day she fell.  After she parked, both children got 

out of the car.  One child ran ahead of her.  As Hatch walked toward the school, she 

was focused on the child in front of her to prevent her from running into the parking lot 

ahead.  Then she turned her attention to the child behind her, to make sure he was 

following along.  At that moment, she hit her shin against the concrete curb, heard a 

bone snap, and fell to the ground. 

       Approximately two years after Hatch's accident, the County removed the 

sidewalk.  At the District's request and expense, the County removed the wall footer at 

the same time. 

       Hatch sued both King County and the School District for negligence.  Both 

defendants successfully moved for summary judgment.  Hatch appeals.

                                          ANALYSIS

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No. 66336-4-I/3

       We review summary judgment de novo and engage in the same inquiry as the 

trial court.  Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001).  Summary 

judgment is proper if the pleadings, depositions, answers, and admissions, together 

with the affidavits, show that there is no genuine issue of material fact and the moving 

party is entitled to judgment as a matter of law.  CR 56(c). This court construes facts 

and reasonable inferences from those facts in the light most favorable to the 

nonmoving party.  Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 795, 64 P.3d 

22 (2003).

       To prevail on a negligence claim, a plaintiff must prove four basic elements:  (1) 

a duty owed to the complaining party, (2) breach of that duty, (3) resulting injury, and 

(4) proximate cause.  Wilson v. City of Seattle, 146 Wn. App. 737, 741, 194 P.3d 997 

(2008).  "Negligence is generally a question of fact for the jury, and should be decided 

as a matter of law only 'in the clearest of cases and when reasonable minds could not 

have differed in their interpretation' of the facts."  Bodin v. City of Stanwood, 130 Wn.2d 

726, 741, 927 P.2d 240 (1996) (quoting Young v. Caravan Corp., 99 Wn.2d 655, 661, 

663 P.2d 834, 672 P.2d 1267 (1983)).

       The County concedes that the area where Hatch fell is within its right of way that 

includes the road in front of the school and the sidewalk.  The County denies that it 

created the allegedly unsafe wall footer because it has "no definitive records of 

installing either the sidewalk or the historic wall/fence." According to the County, 

summary judgment was appropriate because it received no prior complaints that the 

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No. 66336-4-I/4

wall footer was hazardous, and therefore had no actual notice of any dangerous 

condition in the right of way.  The District contends it is not liable as a matter of law 

because the allegedly dangerous condition was within the County's right of way, not on 

school property.  

       Government entities are held to the same negligence standards as private 

individuals.  Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 

P.3d 1220 (2005).  A government entity has a duty to exercise ordinary care to keep its 

public ways in a reasonably safe condition.  Berglund v. Spokane County, 4 Wn.2d 

309, 314, 103 P.2d 355 (1940); Owen, 153 Wn.2d at 786-87; 6 Washington Practice:  

Washington Pattern Jury Instructions: civil 140.01 (3d ed. Supp. 1994) (WPIC).  Before a 

government entity may be liable for an unsafe condition it did not create, it must have 

notice of the condition and a reasonable opportunity to correct it.  Wright v. City of 

Kennewick, 62 Wn.2d 163, 381 P.2d 620 (1963); WPIC §140.02. Notice may be actual 

or constructive.  Iwai, 129 Wn.2d at 96; Wiltse v. Albertson's, Inc., 116 Wn.2d 452, 805 

P.2d 793 (1991).  Constructive notice may be inferred from the elapse of time a 

dangerous condition is permitted to continue.  Ingersoll v. DeBartolo, Inc., 123 Wn.2d

649, 652, 869 P.2d 1014 (1994); Nibarger v. City of Seattle, 53 Wn.2d 228, 230, 332 

P.2d 463 (1958).  Determining whether an unsafe condition has existed long enough 

for a property owner exercising reasonable care to discover it is ordinarily a question of 

fact for the jury. Coleman v. Ernst Home Ctr., Inc., 70 Wn. App. 213, 220, 853 P.2d 

473 (1993).

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       It is undisputed that the historic wall footer existed for many years.  Both the 

County and the District speculate that it may have dated back more than seventy years.  

This is not a case where the allegedly dangerous condition developed suddenly

providing no opportunity to take precautions.  Thus, even absent evidence of safety 

complaints, a trier of fact could conclude there was constructive notice of the unsafe 

condition.  See Nibarger, 53 Wn.2d at 230.

       The District characterizes itself as merely an abutting land owner and insists it 

had no responsibility to ensure pedestrian safety on the County's right of way.  The 

record is not sufficiently developed for us to determine the District's status with respect 
to the pedestrian walkway and adjacent wall footer.  But even assuming that the 

District's position is correct and it bears only the responsibility of an adjacent land 

owner, when the owner of adjacent property uses a public right of way for its "own 

special purposes" there is a corresponding duty to keep the area in a reasonably safe 

condition for its "usual and customary usage" by pedestrians.Hoffstatter v. City of 

Seattle, 105 Wn. App. 596, 601, 20 P.3d 1003 (2001).  There is evidence here 

indicating that the District was responsible for the wall's existence and that school 

employees were aware of pedestrian usage of the area connecting the road to the 

school parking lot.  This evidence creates a genuine issue of fact as to whether the 

school utilized the right of way for its own purposes and if so, whether the District 
fulfilled its duty to maintain the area in a manner that was safe for that purpose.1          

       1 The evidence suggesting that the District built the historic wall and paid for its eventual removal

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No. 66336-4-I/6

       Relying on Hoffstatter, both defendants contend that Hatch's claim fails as a 

matter of law because the concrete wall footer was an open and obvious condition, so 

there was no duty to warn or remediate.  In Hoffstatter, a pedestrian tripped over 

uneven bricks surrounding a tree located on a parking strip between a sidewalk and a 

roadway.  Hoffstatter, 105 Wn. App. at 598.  The court determined that the uneven 

bricks were not unreasonably dangerous because the condition was an open and 

obvious one.  Hoffstatter, 105 Wn. App. at 601. In reaching this conclusion, the court 

noted that it is "a common condition" for tree roots to dislodge pavement on parking 

strips and that the bricks were "not hidden."  Hofstatter, 105 Wn. App. at 601. The

court further observed, in contrast to sidewalks, parking strips "frequently contain such 

objects as power and communication poles, utility meters, and fire hydrants."  

Hofstatter, 105 Wn. App. at 600.  For these reasons, the Hofstatter court determined 

that "[i]t is reasonable to expect that a pedestrian will pay closer attention to surface 

conditions while crossing a landscaped parking strip than when walking on a sidewalk."  

Id.; see also Wilson, 146 Wn. App. at 742 (manhole cover on parking strip not 

unreasonably dangerous because manholes in that location are common, the cover 

was open and obvious and specifically known to the plaintiff, and because pedestrians 

can be expected to pay attention while crossing a parking strip).

       In this case, the alleged hazardous condition was not located on a parking strip.  

also raises the possibility that the wall footer constituted a continuing trespass on the County's right of 
way.  At a minimum, the evidence gives rise to an inference that the District made special use of the 
right of way.  

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No. 66336-4-I/7

While the County maintains that the wall and the sidewalk were built on different 

occasions, it not clear that the wall footer was separate and distinct from the adjacent

sidewalk.  In addition, while the Hofstatter decision does not describe the appearance 

of the bricks at issue, here, Hatch presented evidence that the wall footer was not open 

and obvious, and was "camouflaged by moss, and inconspicuous in peripheral vision."

This evidence creates questions of fact as to whether the wall footer was a part of the 

walkway for practical purposes, and if so, whether the condition of the walkway was 

reasonably safe for pedestrian use.  See Keller v. Spokane, 146 Wn.2d 237, 249, 44

P.3d 845 (2002).

       Moreover, even if the condition was open and obvious, in certain limited 

circumstances, there may be liability when a possessor of land "should anticipate the 
harm despite such knowledge or obviousness."2 Restatement (Second) of Torts §

343A(1).  "Distraction, forgetfulness, or foreseeable, reasonable advantages from 

encountering the danger" are factors which trigger a responsibility to warn of, or make 

safe, known or obvious dangers.  Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 

121, 140, 875 P.2d 621 (1994).

       [R]eason to expect harm to the visitor from known or obvious dangers 
       may arise, for example, where the possessor has reason to expect that 
       the invitee's attention may be distracted, so that he [or she] will not
       discover what is obvious, or will forget what he [or she] has 
       discovered, or fail to protect ... against it. Such reason may also arise 

       2 The County appears to take the position in this appeal that it is subject to the duty of a 
governmental entity to maintain its public ways in a reasonably safe condition and is also subject to the 
general tort duties owed by a possessor of land.  See Br. of Resp. at 8, 12.  We need not decide here 
whether both standards in fact apply.  Under either standard, factual issues preclude summary judgment.  

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No. 66336-4-I/8

       where the possessor has reason to expect that the invitee will proceed 
       to encounter the known or obvious danger because to a reasonable 
       [person] in [that] position the advantages of doing so would outweigh 
       the apparent risk.

Tincani, 124 Wn.2d at 139-40 (quoting Restatement (Second) of Torts § 343A cmt. f.

       Thus, even if the wall footer was not concealed, a trier of fact could conclude 

there was reason to anticipate harm despite its visibility because it was located

between a roadway and a school parking lot and because it appears that it was directly 

in an established pedestrian pathway to the school.  There is also evidence supporting 

the inference that it was foreseeable that parents and guardians crossing the raised 

concrete wall footer would be distracted by the movement of children in proximity to the 

parking lot and the road.  In other words, even if the dangerous condition was open and 

obvious, reasonable minds could conclude that the defendants should have anticipated 

the harm and taken precautions to protect against it. 

       Because there are genuine issues of material fact, we reverse the decision to 

grant summary judgment and remand for further proceedings.

WE CONCUR:

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No. 66336-4-I/9

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