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                                                          20/3NOV2S AH 9:j,|




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



JERMAINE DOSS,                                      NO. 68706-9-1


                       Appellant,                   DIVISION ONE


                       v.



CITY OF SEATTLE, WASHINGTON,                        UNPUBLISHED OPINION
a governmental entity,
                                                    FILED: November 25, 2013
                       Respondent.



       Lau, J. — Jermaine Doss sued the City of Seattle for injuries he sustained when

he fell while walking in downtown Seattle. The trial court granted summary judgment in

favor of the City. Because Doss failed to demonstrate a genuine issue of material fact

for trial, we affirm the trial court's order.

                                                FACTS

       Jermaine Doss fractured his arm when he tripped and fell while walking in the

Belltown neighborhood of Seattle in September 2007. In 2008, Doss filed an action for

personal injuries against the City of Seattle and the owners of an adjacent private

business.
68706-9-1/2



       The City moved for summary judgment, arguing that it had no notice of any

dangerous condition that existed on the city sidewalk where Doss fell and because the

sidewalk was not, in fact, unreasonably dangerous. In support of its motion, the City

submitted the declaration of a Department of Transportation engineer who visually

inspected the sidewalk and also searched City records and determined that no one had

complained about the condition of the sidewalk before Doss's accident. The trial court

granted the City's motion and dismissed Doss's claims against the City without

prejudice.1

       Doss filed a second lawsuit based on the same incident in 2010. The City again

moved for summary judgment, arguing that Doss failed to identify a dangerous condition

and, because he could not explain the mechanism of his injury, could not prove

causation.2

       The City pointed out that when an investigator interviewed Doss in 2008, he

indicated that he tripped on an uplifted sidewalk panel on the building side of the

sidewalk. However, when he was deposed in 2011, Doss denied tripping on the raised

portion of the sidewalk he previously identified. Doss maintained that he could not have

tripped on the building side of the sidewalk because he ended up lying some distance




       1The claims against the adjacent business owners were dismissed with
prejudice.

       2Although the City raised the affirmative defense of res judicata, it did not rely on
this theory as a basis for summary judgment. While dismissal of an action "with
prejudice!' is a final judgment on the merits of a controversy for purposes of res judicata,
Berschauer Philips Constr. Co. v. Mutual of Enumclaw Ins. Co., 175 Wn. App. 222, 228
n.11, 308 P.3d 681 (2013), a dismissal without prejudice is arguably not. See Pederson
v. Potter, 103 Wn. App. 62, 70, 11 P.3d 833 (2000).
68706-9-1/3



away in the street. He still insisted that he tripped on the sidewalk, but could not say

exactly how or where.

       In response to the City's motion, Doss submitted a declaration stating that he had

recently become aware of an eyewitness statement that described him staggering on

the sidewalk by the curb, and his "memory came back." Doss said he actually tripped,

not on the sidewalk, but on a protruding tree root while he was "moving between the

curb and the planter trees." Doss argued that summary judgment should be denied

because the partially exposed tree root was a dangerous condition for which the City

was liable.


       The trial court granted the City's motion and dismissed Doss's lawsuit. Doss

appeals.

                                         ANALYSIS

       Doss contends there is a genuine issue of material fact that precludes summary

judgment. Specifically, Doss claims there is an issue of fact as to whether the City

fulfilled its duty to maintain the sidewalk and ensure that trees planted in unpaved

squares between the curb and the sidewalk do not pose an unreasonable risk of harm

to pedestrians using the sidewalk.

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

trial court. Heath v. Uraaa, 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 for trial 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

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68706-9-1/4



nonmoving party. Michak v. Transnation Title Ins. Co.. 148 Wn.2d 788, 795, 64 P.3d 22

(2003).

       Doss initially alleged that he tripped on the sidewalk, but he failed to identify any

condition that made the sidewalk unsafe for ordinary travel. Doss expressly repudiated

his 2008 statement that he tripped on the lip of a raised sidewalk panel depicted in a

photograph of the area. He remembered walking in the middle of the sidewalk, then

"the only thing in my recollection is, I remember ending up in the street with a fractured

arm." He could not say exactly what caused him to trip or where it happened.

       [M]yfeet got caught on that sidewalk. And at the time, I know if you look at the
       sidewalk, it could be ... numerous places, but I remember hitting my—hitting my
       big toe on the concrete, catching ... the lip on that side of my right toe. I
       remember that. And I remember my arms extending out and me ending up with
       a fractured arm.

But the fact that an accident and injury occurred does not, by itself, necessarily give rise

to an inference of negligence. Marshall v. Ballv's Pacwest. Inc.. 94 Wn. App. 372, 377,

972 P.2d 475 (1999). As a plaintiff alleging negligence, Doss was required to establish

the existence of a duty, a breach thereof, a resulting injury, and proximate causation

between the breach of duty and the resulting injury. Wilson v. City of Seattle. 146 Wn.

App. 737, 741, 194 P.3d 997 (2008). Doss's testimony about falling on the sidewalk

failed to establish a factual basis to support the elements of breach and causation.

       Doss's later declaration opposing summary judgment provides a different

account of the accidence and identifies a protruding tree root as the unreasonably

dangerous and injury-causing condition. But Doss cannot rely on a self-serving

declaration contradicting his earlier unambiguous deposition testimony that he tripped

on the sidewalk to create a genuine issue of fact for trial. Klontz v. Puqet Sound Power

                                           -4-
68706-9-1/5



& Light Co.. 90 Wn. App. 186, 192, 951 P.2d 280 (1998) (self-serving affidavits

contradicting prior depositions cannot be used to create an issue of material fact);

McCormick v. Lake Washington Sch. Dist.. 99 Wn. App. 107, 111, 992 P.2d 511 (1999)

(accord). Doss explained that he did not independently remember how he fell until

years after the incident when an eyewitness's testimony "brought back a memory [he]

had wiped out." He remembered that when he fell, he was crossing the planted area to

avoid oncoming foot traffic. This declaration testimony flatly contradicts Doss's earlier

testimony that he tripped on concrete while on the sidewalk. Doss offers no adequate

or plausible explanation for why he accurately remembers the accident more than four

years after it occurred.

       Moreover, the declaration does not create a genuine issue of material fact for

trial. Doss's new iteration of his claim involves a condition on a "[Ijandscaped area

between the sidewalk and street curb ...," known as a parking strip or a planting strip.

Hoffstatter v. City of Seattle. 105 Wn. App. 596, 598 n.1, 20 P.3d 1003 (2001). Tree

roots in this type of area are not unreasonably dangerous. As this court stated in

Hoffstatter, in contrast to pedestrians on sidewalks, it is reasonable to assume that

pedestrians will take greater care when crossing landscaped parking strips:

       [A] reasonably safe condition is not the same for a parking strip as it is for a
       sidewalk because their purposes are different. In contrast to a sidewalk, which is
       devoted almost exclusively to pedestrian use, parking strips frequently contain
       such objects as power and communication poles, utility meters and fire hydrants.
       As in this case, parking strips frequently are used for beautification, such as
       grass, shrubbery, trees or other ornamentation. It is certainly true that pedestrian
       use of parking strips must be anticipated. But they are not sidewalks and cannot
       be expected to be maintained in the same condition.

Hoffstatter. 105 Wn. App. at 600 (footnotes omitted).


                                          -5-
68706-9-1/6



       In Hoffstatter. a pedestrian sued the City and adjacent property owners after she

tripped over uneven bricks surrounding a tree 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 as a matter of law because the

condition was open and obvious. 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." Hoffstatter. 105 Wn.

App. at 601. Similarly, in Wilson, this court affirmed summary judgment because the

injury-causing condition—a manhole cover on parking strip—was not unreasonably

dangerous. Wilson. 146 Wn. App. at 742. Like tree roots, manholes are common in

that location, the cover was open and obvious and specifically known to the plaintiff, and

pedestrians are expected to pay attention while crossing a parking strip. Wilson. 146

Wn. App. at 742. Doss relies on Rosenaren v. City of Seattle. 149 Wn. App. 565, 205

P.3d 909 (2009), to no avail. The plaintiff in Rosenqren fell on a raised portion of a city

sidewalk caused by roots of trees that were planted by the owners of adjacent private

property. Rosenoren involved the duty owed by the private property owners with

respect to a sidewalk, when trees they planted created an arguably dangerous condition

on the sidewalk. Rosenqren. 149 Wn. App. at 575. But unlike that of the plaintiff in

Rosenoren, Doss's claim does not involve a hazardous sidewalk. While he initially

reported falling on the sidewalk, he failed to identify a specific tripping hazard. He now

claims that he fell on an unobscured protruding tree root in the parking strip. But as we

observed in Hoffstetter. protruding tree roots are common in such areas and do not



                                          -6-
68706-9-1/7



constitute an unreasonably dangerous condition, given that pedestrian travel is not the

primary purpose of these areas.

      We affirm the trial court's order of summary judgment.




WE CONCUR:




  Afl6g/VWg-N HA^vJ.,




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