       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


JOSEPHINE JOHNSON, an
individual,
                                              No. 71117-2-1                           o
                       Appellant,
                                              DIVISION ONE
                v.



SNOHOMISH COUNTY; DONALD
and PATRICIA KRASSIN, husband                                                             <J>

and wife, both individually and on
behalf of their marital community
composed thereof; JOHN DOES I-
IV,                                           UNPUBLISHED OPINION


                       Defendants,            FILED: November 10, 2014

                and


CITY OF EVERETT,

                       Respondent.


       Becker, J. — Josephine Johnson appeals the summary judgment

dismissal of her lawsuit against the City of Everett for injuries she suffered in a

trip and fall incident on a sidewalk. Because Johnson failed to demonstrate a

genuine issue of material fact for trial, we affirm the trial court's order.

       Around 9:00 p.m. on May 9, 2009, Johnson and a friend, Kristen

Anderson, were walking on the sidewalk in front of 1301 Broadway Avenue in

Everett, Washington, when Johnson tripped and fell, injuring her ankle.

According to Johnson, her foot entered a hole in the sidewalk that was "three
No. 71117-2-1/2




inches deep, I think, and two inches wide." Johnson had never walked in that

area before and did not know how long the hole had been in the sidewalk.

Johnson and Anderson later returned to the scene and took pictures of the

sidewalk, but Johnson could not remember the date they did so.

       On May 1, 2012, Johnson sued the City, contending the City was

negligent in failing to maintain the sidewalk in a safe condition. After parties

engaged in discovery, the City moved for summary judgment on the basis that it

lacked notice the sidewalk was unsafe. In support of its motion, the City

submitted the declaration of the City's street maintenance and operations

manager, James Roy Harris, who explained that whenever the City is notified of

a condition of concern relating to sidewalks, it creates a service request that is

logged into a computer database. Harris reviewed the City's database and found

only one service request relating to the sidewalk adjacent to 1301 Broadway

Avenue. The request stated that "trip hazards" were reported on November 9,

1999, and the City resolved the issue the same day by grinding the sidewalk.

Harris found no evidence the City had conducted any repairs or maintenance that

would have damaged the sidewalk prior to Johnson's fall.

       Johnson filed a response contending that the City had at least constructive

notice of the sidewalk's condition. In support, Johnson provided a sworn

declaration from her attorney, Alicia Kikuchi. Attached to Kikuchi's declaration

were several exhibits, including an unsworn seven page report from Joellen Gill,
No. 71117-2-1/3




a "human factors engineering consultant," addressed to Kikuchi, and records of

16 service requests made between 1999 and 2009. Gill stated that she reviewed

the complaint, Johnson's and Anderson's depositions, the City's motion for

summary judgment, the Everett Municipal Code, and "miscellaneous

photographs." Gill opined that "this hazardous condition was not due to a sudden

onset or acute failure; it would take many years for a sidewalk to degrade to this

condition." Gill concluded that the City therefore had the opportunity to identify

the hazardous condition and make repairs but failed to do so.

       The City moved to strike the Gill report on the grounds that (1) it was

unsworn, (2) it was inadmissible hearsay, (3) Gill was not qualified to provide an
expert opinion on sidewalk conditions, and (4) Gill's conclusions were speculative
and without factual basis. The trial court granted the City's motion for summary

judgment. Johnson appeals.

       We review a grant of summary judgment de novo, viewing the facts and
reasonable inferences in the light most favorable to the nonmoving party. Dowler

v. Clover Park Sen. Dist. No. 400, 172 Wn.2d 471, 484-85, 258 P.3d 676 (2011).

A motion for summary judgment may be granted when there is no genuine issue

of any material fact, and the moving party is entitled to a judgment as a matter of
law. CR 56(c). A material fact is one on which the outcome of the litigation
depends. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d
1082 (1997). A defendant moving for summary judgment may meet the initial
No. 71117-2-1/4




burden by pointing out the absence of evidence to support the nonmoving party's

case. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182(1989).

If the defendant meets this initial showing, then the inquiry shifts to the plaintiff to

set forth evidence to support his case. Young, 112 Wn.2d at 225 n.1. The

evidence set forth must be specific and detailed, not speculative or conclusory.

Sanders v. Woods. 121 Wn. App. 593, 600, 89 P.3d 312 (2004). If the plaintiff

"'fails to make a showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear the burden of
proof at trial,'" summary judgment is proper. Young, 112 Wn.2d at 225, quoting
Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265

(1986).

          In a negligence action, a plaintiff must prove (1) the existence of a duty,
(2) breach of that duty, (3) resulting injury, and (4) proximate cause. Degel v.
Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996).

Municipalities have a duty to exercise reasonable care to keep their sidewalks in
a condition that is reasonably safe for ordinary travel. Keller v. Citv of Spokane,
146 Wn.2d 237, 249, 44 P.3d 845 (2002).

          However, before a municipality 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. Citv of Kennewick, 62 Wn.2d 163, 167, 381 P.2d 620 (1963).
Notice may be actual or constructive. Nibarger v. Citv ofSeattle, 53 Wn.2d 228,
No. 71117-2-1/5




230, 332 P.2d 463 (1958). Constructive notice of an unsafe condition may be

imputed to a municipality "'if the defective condition or danger which caused the

injury has existed for such a period of time that the municipal authorities, by the

exercise of ordinary care and diligence, must have known of its existence, and

could have guarded the public against it and failed to do so.'" Skaggs v. Gen.

Elec. Co., 52 Wn.2d 787, 790, 328 P.2d 871 (1958), quoting 19 Eugene

McQuillin, The Law of Municipal Corporations § 54.110, at 401 (3d ed. 1950).

The period of time that is sufficient to impute constructive notice "is determinable

largely from the circumstances of each particular case." Skaggs, 52 Wn.2d at

789.

       Here, it is undisputed that the City had no actual notice of the hole in the

sidewalk. Nor does Johnson meet her burden to provide specific, detailed

evidence showing the City had constructive notice of the sidewalk's condition.

Johnson had not walked in the area before and did not know how long the hole

had been present. The service requests submitted by Johnson show only that
City employees had occasionally cleaned the streets or patched the roads in the
same general area during the previous 10 years; they do not establish that City
employees specifically observed the sidewalk adjacent to 1301 Broadway

Avenue.

       Johnson contends Gill's letter is admissible and competent evidence

supporting her claim. Because Gill's letterwas called to the attention of the trial
No. 71117-2-1/6




court, see CR 56(h), it is of no moment whether the trial court granted the City's

motion to strike. Our de novo standard of review requires us to examine all

evidence presented to the trial court, including evidence deemed by the trial court

to be unworthy of consideration. Folsom v. Burger King, 135 Wn.2d 658, 663,

958 P.2d 301 (1998).

       Gill's opinion that "it would take many years for a sidewalk to degrade to

this condition" is not supported by any specific facts. Gill admitted that she was

unable to inspect the sidewalk at 1301 Broadway Avenue because it had been

repaired subsequent to Johnson's fall. Gill based her opinion entirely on a review

of two poor-quality photographs of a crack in a sidewalk. However, Gill does not

identify where she got the photos, who took the photos, or when they were taken.
Furthermore, while Gill has a master's degree in environmental engineering and

ample experience consulting in the area of safety and risk management, there is
nothing in Gill's education, background, or training that suggests she is qualified
to opine on the rate of sidewalk degradation.

       Moreover, Johnson may not rely on Gill's statements to create a genuine

issue of material fact because Gill's report was not in the form of a sworn affidavit

or declaration made under penalty of perjury, as required by CR 56(e). Kikuchi's

declaration is sufficient to authenticate Gill's report. See Int'l Ultimate. Inc. v. St.

Paul Fire & Marine Ins. Co.. 122 Wn. App. 736, 87 P.3d 774 (expert report

addressed to counsel properly authenticated by counsel's declaration), review
No. 71117-2-1/7




denied. 153 Wn.2d 1016 (2004). But her attorney's declaration does not make

Gill's report admissible. Courts do not always require strict compliance with CR

56(e)'s express requirements due to the potentially extreme consequences of a

summary judgment motion, particularly with respect to the nonmoving party.

Young Soo Kim v. Choong-Hvun Lee. 174 Wn. App. 319, 326-27, 300 P.3d 431

(2013). "But we are aware of no case . . . that excuses in whole the requirement

that statements purporting to establish a necessary element of a claim or

defense be in the form of sworn affidavits or declarations made under penalty of

perjury." Kim, 174 Wn. App. at 327.

         When all of the evidence, including Gill's report, is considered in the light

most favorable to Johnson, it is insufficient to establish a genuine issue of

material fact that the City had notice of the sidewalk's condition. Accordingly, the

trial court did not err by granting summary judgment and dismissing Johnson's

claim.

         We affirm.




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WE CONCUR:




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