            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



LARRY ALMO, ILYSE ALMO, and                             No. 67723-3-1
ESTHER ALMO,
                                                        DIVISION ONE
                       Appellants,

                v.



CITY OF SEATTLE,                                        UNPUBLISHED


                       Respondent.                      FILED: March 18.2013




       Cox, J. — Municipalities have a duty to exercise reasonable care to keep

their sidewalks in a condition that is reasonably safe for ordinary travel.1 But
before a municipality may be liable for an unsafe condition it did not create, it
                                                                                      I
                                                                                      i



must have either actual or constructive notice of the condition and a reasonable;
                                                                                           a?
opportunity to correct it.2 Here, there is a genuine issue of material fact whether        -n   '
                                                                                      CO


the City of Seattle should be charged with constructive notice of an offset in a
sidewalk where Larry Almo was injured. Accordingly, we reverse the summary ^_
                                                                                      CO

judgment in favor of the City.

          In 2008, Larry Almo tripped and fell on an offset in a Seattle public

sidewalk. Part of the sidewalk was lifted up almost an inch from the surrounding

       1 Keller v. City of Spokane. 146 Wn.2d 237, 249, 44 P.3d 845 (2002); 6A
Washington Practice: Washington Pattern Jury Instructions: Civil 140.01 (6th ed
2012) (WPI).

           Wright v. City of Kennewick, 62 Wn.2d 163, 167, 381 P.2d 620 (1963); WPI
140.02.
No. 67723-3-1/2


area. It appears from the evidence that the roots from one or two nearby trees

likely caused this sidewalk offset.

       The record shows that the City does not routinely inspect sidewalks but

relies on citizens, including property owners with property adjacent to public

places, to report unsafe conditions. According to City policy, the Seattle

Department of Transportation responds to these reports as quickly as possible

given the number of complaints and the City's resources.

       In 2010, Larry, llyse, and Esther Almo (collectively "Almo") sued the City,

claiming that it was negligent in keeping the sidewalk reasonably safe for

pedestrian use. The City moved for summary judgment. It argued that there was

no evidence that it had actual or constructive notice of the sidewalk offset. The

trial court agreed, granted summary judgment, and dismissed all claims.

       Almo moved for reconsideration, based in part on submission of additional

evidence. The court denied this motion.

       Almo appeals.

                                      NOTICE


       Almo argues that the trial court erred in granting summary judgment,

claiming there is a genuine issue of material fact whether the City had

constructive notice of the sidewalk offset. We agree.

       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
No. 67723-3-1/3



matter of law.3 A material fact is one on which the outcome of the litigation

depends.4
          A defendant moving for summary judgment may meet the initial burden by

pointing out the absence of evidence to support the nonmoving party's case.5 If
the defendant meets this initial showing, then the inquiry shifts to the plaintiffto

set forth evidence to support his case.6 The evidence set forth must be specific
and detailed, not speculative or conclusory.7 If, at this point, the plaintiff '"fails to
make a showing sufficient to establish the existence of an element essential to

[his] case, and on which [he] will bear the burden of proof at trial,' then the trial

court should grantthe motion."8
          This court reviews a summary judgment order de novo, viewing the facts

and reasonable inferences in the light most favorable to the nonmoving party.9
          To prevail on a negligence claim, a plaintiff must prove duty, breach,

causation, and injury.10 Generally, negligence is a question of fact for the jury.11


          3CR 56(c).

          4 Greater Harbor 2000 v. City of Seattle, 132Wn.2d 267, 279, 937 P.2d 1082
(1997).

          5Younav.KevPharm..lnc. 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989).

          6ld

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

          8Young, 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)).

          9 Lam v. Global Med. Svs.. Inc.. 127 Wn. App. 657, 661 n.4, 111 P.3d 1258
(2005).
          10 Keller. 146 Wn.2d at 242.

          11 Bodin v. City of Stanwood. 130 Wn.2d 726, 741, 927 P.2d 240 (1996).
No. 67723-3-1/4


Negligence may 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."12

        Municipalities have a duty to exercise reasonable care to keep their public

roadways and sidewalks in a condition that is reasonably safe for ordinary

travel.13 But 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.14 Notice may be actual or constructive.15
        Here, the parties agree that the City did not have actual notice of the

sidewalk offset.16 The issue is whether there is a genuine issue of material fact

as to the City's constructive notice.

        Constructive notice of an unsafe condition may be imputed to a

municipality:

        "[l]f 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




        12 id (quoting Young v. Caravan Corp., 99 Wn.2d 655, 661, 663 P.2d 834, 672
P.2d 1267 (1983)).

        13 Keller. 146 Wn.2d at 249; WPI 140.01.

        14 Wright, 62 Wn.2d at 167; WPI 140.02.
        15
             Nibaroer v. City of Seattle, 53 Wn.2d 228, 230, 332 P.2d 463 (1958).

        16 Brief of Appellants at 10-11 ("Although the City of Seattle states it had no
actual notice of the hazardous condition of the involved sidewalk, fact issues remain with
respect to whether it had constructive notice."); Brief of Respondent City of Seattle at 9
("In this case, it is undisputed that Seattle neither created the sidewalk uplift, nor had
actual notice of it prior to Mr. Almo's accident.").
No. 67723-3-1/5


        existence, and could have guarded the public against it and failed
        to do so, notice will be imputed to the municipality."[17]
Whether a defendant had constructive notice of a condition is generally a

question offact for the jury.18
        The period of time that is sufficient to impute constructive notice "is

determinable largely from the circumstances of each particular case."19 The
supreme court has noted that the location of the condition and the nature of the

condition may affect this period oftime.20
        In Skaqqs v. General Electric Company, the jury considered whether

General Electric had constructive notice of a stop sign that was bent over a

sidewalk.21 General Electric had "the control, operation, and management of

Richland," and there was no argument that its "liability differed] from that of a

municipal corporation."22




      17 Skaoosv. Gen. Elec. Co., 52 Wn.2d 787, 790, 328 P.2d 871 (1958) (quoting
19 Eugene McQuillin, The Law of Municipal Corporations § 54.110 (3d ed.)).
        18
             Morton v. Lee. 75 Wn.2d 393, 397, 450 P.2d 957 (1969).

        19 Skaggs, 52 Wn.2d at 789; see also Hartley v. Tacoma Sch. Dist. No. 10, 56
Wn.2d 600, 602-03, 354 P.2d 897 (1960) (concluding that the jury was justified in finding
that almost one week was sufficient time for the city to have constructive notice of an icy
and snowy sidewalk).

        20 See, e.g.. Elster v. City of Seattle, 18 Wash. 304, 308, 51 P. 394 (1897)
(concluding that the city had constructive notice of an uneven sidewalk because the
testimony showed that the condition "was a matter of public notoriety in the
neighborhood, and was well known by almost every one [sic] who had traveled that
street").

        21 52 Wn.2d 787, 788, 790, 328 P.2d 871 (1958).

        22 Id. at 788.
No. 67723-3-1/6



       In determining whether the trial court properly submitted the notice issue

to the jury, the supreme court looked at the specific circumstances in that case.23
It considered the fact that the stop sign was on "one of the busiest streets in

Richland, which has approximately twenty-seven thousand inhabitants, and that

the obstruction existed from nine o'clock a.m. until four o'clock p.m."24 Given
these circumstances, the supreme court concluded that this question of fact was

properly submitted to the jury.25
       Here, the location of the offset is not in dispute, which was in the 6500

block of 52nd Avenue South in Seattle near a synagogue and mailbox. The

record also shows that the offset that Almo tripped on was almost an inch high.

A City employee testified that a "rule of thumb" is that an offset of half an inch or

higher may create a "trip risk" for pedestrians.

       There was also evidence that the roots from one or two nearby trees most

likely caused the offset. But there is a genuine issue of material fact regarding

how long the offset existed.

       In support of his memorandum opposing the City's motion for summary

judgment, Almo submitted a declaration to prove that the sidewalk was offset for
a number of years. Favero Greenforest, an arborist, testified that the trees that

likely caused the sidewalk offset were 90 to 110 years old and that the process of




       23 Id at 790.

       24 Id.

       25
            Id.
No. 67723-3-1/7


roots causing a sidewalk offset is "a slow process." He concluded that "it is

probable this process of uplift was completed years before Larry Almo fell."

       While the City challenged this declaration below, the court properly

rejected that challenge. The City argues now, as it did below, that the

Greenforest declaration did not comply with CR 56(e). It contends that the

declaration contains a speculative expert opinion that lacks factual support. This

argument is not persuasive.

       CR 56(e) is explicit in its requirements, which serve the purpose of a

summary judgment motion. Affidavits and declaration must be (1) "made on

personal knowledge"; (2) "set forth such facts as would be admissible in

evidence"; and (3) "show affirmatively that the affiant [or declarant] is competent

to testify to the matters" asserted.26 An expert opinion is not admissible if it is a
'"conclusory or speculative'" opinion "'lacking an adequate foundation.'"27
       Here, Greenforest gave his opinion regarding the trees' ages and the

general length of time it would take for tree roots to cause a sidewalk offset. His

opinion is not mere speculation; it is an expert opinion based on his knowledge

as a certified arborist.28 Thus, Greenforest's declaration complies with CR

56(e)'s evidentiary requirements.

       Given the evidence presented in Greenforest's declaration, Almo

presented sufficient evidence to show that there is a genuine issue of material

       26
            CR 56(e).

       27 Miller v. Likins, 109Wn. App. 140, 148, 34 P.3d 835 (2001) (quoting Safeco
Ins. Co. v. McGrath, 63 Wn. App. 170, 177, 817 P.2d 861 (1991)).
       28
            See CR 56(e).
No. 67723-3-1/8


fact whether the City should be charged with constructive notice of the offset.

Whether the amount of time the offset existed is sufficient to impute constructive

notice to the City given the other circumstances in this case is a question of fact

for the jury.29 Reasonable minds could differ whether the City had constructive
notice.30 Thus, the trial court's order granting the City's motion for summary
judgment was error.

       The City argues that Almo "needed to show that... the City didn't

discover the uplift because it was negligent" before constructive notice can be

imputed. But this argument fails to recognize a distinction between the issues of

constructive notice and breach of duty.

       As discussed above, constructive notice is imputed "'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 diiigence,

must have known of its existence, and could have guarded the public against

it and failed to do so.'"31 Thus, Almo does not have to prove that the City was

negligent in failing to discover the offset. Almo must prove that the offset existed

for a sufficient period of time that the City should have known of its existence if it




       29
            See Morton, 75 Wn.2d at 397.

       30 See, e.g., Nibarger, 53 Wn.2d at 230 (explaining that reasonable minds could
not differ in finding that the City of Seattle did not have constructive notice of an icy and
snowy sidewalk 15 hours after a snowfall).

       31 Skaggs, 52 Wn.2d at 790 (emphasis added) (quoting 19 McQuillin, supra, §
54.110).


                                                  8
No. 67723-3-1/9


was exercising ordinary care and diligence.32 Whether the City had notice ofthe
offset is a threshold issue that must be analyzed before turning to breach of duty.

The City's argument is not persuasive because it bypasses this threshold issue.

       The City also contends that "the only way the City could have discovered

the uplift in this case would have been by continuous inspection of its

sidewalks."33 And the City contends that "there is no common law, statutory, or
regulatory requirement that municipalities inspect their sidewalk infrastructure on

an ongoing basis."34
       We need not decide whether there is a duty to inspect sidewalks in a

reasonably careful and frequent manner in order for the City to fulfill its duty. In

our view, how the City goes about fulfilling its duty is more a question of whether

there is a breach of duty. In any event, we have already decided there is a

genuine issue of material fact whether the City was on constructive notice of the

offset. Nothing else is before us.

       The City also argues that Almo failed to present any evidence that its

"sidewalk maintenance regime" is unreasonable or that any other regime would

"better effectuate repairs ofsidewalk uplifts of less than one inch."35 But Almo


         32 See id.; see also Hartley, 56 Wn.2d at 602-03 ("Here, we think the jury was
likewisejustified in finding that sufficient time had elapsed for the [city] to discover the
abutting owner's failure to abide by the ordinance, which requires such owners to
remove snow and ice within twenty-four hours after it has accumulated, and that it had
failed to remedy the situation within a reasonable time thereafter.").

       33 Brief of Respondent City of Seattle at 12.

       34 Jd

       35 Briefof Respondent City of Seattle at 14-15.
No. 67723-3-1/10



has presented evidence of notice, duty, breach, causation, and damages.

Whether this evidence proves that the City was negligent or its sidewalk

maintenance regime is unreasonable is a question a fact for the jury.36
Negligence "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."37 This is not a case where the negligence issue should be taken from the

jury because reasonable minds could differ in determining whether the City's

maintenance regime is reasonable given the circumstances in this case.

      Finally, the City contends that the trial court did not abuse its discretion in

denying Almo's motion for reconsideration. Because we reverse the grant of

summary judgment, we need not address this argument.

      We reverse the order for summary judgment and remand for further

proceedings.

                                                       £m>J,
WE CONCUR:




                                                   \3<^^eN



       36 See Bodin, 130 Wn.2d at 741.

       37 jd (emphasis added) (quoting Caravan Corp., 99 Wn.2d at 661).
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