       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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                                                                                             coo
TWYLA KILL and TERRY KILL,
individually and the marital community                  No. 70767-1-1
comprised thereof,
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                                                        DIVISION ONE                 O'l
                                                                                             -,>
                     Appellants,                                                     -£~~»
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                                                        UNPUBLISHED OPINION
              v.                                                                     o       Sv"^
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                                                                                     CO
CITY OF SEATTLE, a Washington
municipal corporation,

                      Respondent.                       FILED: August 25, 2014


        Appelwick, J. — Kill slipped and fell on a wet, smooth metal rim of a utility cover

in a downtown Seattle sidewalk. She sued the City, alleging that the utility cover rim

was unreasonably dangerous. Kill relied on expert testimony about the slip-resistance

of the rim measured by a tribometer. However, the tribometer calibrations fell outside

the confidence interval specified by the manufacturer.        As a result, the trial court

excluded the slip-resistance testimony as unreliable and unhelpful to the jury under ER

702.    The trial court held that the expert's remaining testimony was essentially that

metal is slippery when wet, which is common knowledge and did not create a genuine

issue of fact. The trial court accordingly dismissed on the City's motion for summary

judgment. We affirm.
No. 70767-1-1/2




                                           FACTS


       On November 13, 2009, Twyla Kill was walking along a sidewalk in downtown

Seattle around 1:30 p.m. She recalled that it was raining at the time.1 At the corner of

Fifth Avenue and Pike Street, Kill slipped on the outer rim of a metal utility cover and

fell. Kill was injured as a result. She and her husband sued the city of Seattle (City),

alleging that the rim was unreasonably dangerous.

       The utility cover—also known as a handhole—is diamond plated and is

surrounded by a smooth, two-inch metal rim. The City owns the utility cover and it is in

the City right of way. The City did not know when the utility cover was installed, but it

was likely "in 1989 (when the Bank Centre building was completed) or before." There
were no prior complaints about the specific utility cover or other similar utility cover rims.

       Kill hired Joellen Gill as an expert to conduct tests and testify about the condition

of the metal rim. To do so, Gill used an English XL Variable Incidence Tribometer, an

instrument that measures the coefficient of friction, or "slip-resistance" of a surface. Gill

used the tribometer to conduct two slip-resistance tests of the utility cover rim: the first

in February 2011 and the second in June 2013.

       Different standards for tribometer validation and calibration were in effect at the

time of each of Gill's field tests. Prior to September 2006, the American Society for


       1 Kill submitted a weather report stating that it rained 0.33 inches on November
13, 2009. However, the hourly precipitation column is cut off in the record. In its order
denying Kill's motion for reconsideration, the trial court noted that the same weather
report can be found online. The online weather report showed that the last measurable
rain fell at 11:53 a.m. (0.06 of an inch) and no rain fell for the rest of the day. This
contradicts Kill's statement that it was raining at the time she slipped and fell. But, for
the purposes of summary judgment, the trial court accepted Kill's contention that it was
raining when she slipped.
No. 70767-1-1/3




Testing and Material (ASTM) F1679 standard provided instructions for how to use a

tribometer. However, the ASTM withdrew the F1679 standard in September 2006 and

did not adopt a new standard for five years.

       In March 2011, the current standard for tribometer validation and calibration,

ASTM F2508, went into effect. ASTM F2508 states that "[vjalidation shall be performed

by walkway tribometer suppliers or independent testing facilities]." It defines "supplier"

as "any individual, agent, company, manufacturer, or organization responsible for the

walkway tribometer prior to receipt by the user."        Thus, an individual user cannot

validate a tribometer.


       Under ASTM F2508, a tribometer must satisfy two criteria to be validated: (1) it

must rank the coefficient of friction for each of four reference surface tiles in the correct

order; and (2) it must produce statistically significant results, using the mean and

standard deviation, for all adjacently ranked surface tiles. ASTM F2508 at § 9. If the

tribometer does not satisfy these criteria, then it fails validation, |d. at § 9.3. The

manufacturer must then create a validation report specifying the 95th percentile

confidence interval for each reference surface tile. kL at § 10.1.

       ASTM F2508 also requires individual users to perform calibration of their

tribometer to ensure valid test results. Id at § 4.5, 13.2. The tribometrist must measure

each of the four reference surface tiles and compare the results to the 95th percentile

confidence interval specified in the manufacturer's validation report, jd. at § 13.2. If the

results for each tile do not fall within the confidence interval, then the tribometer fails

calibration. idat§ 13.3.
No. 70767-1-1/4




       Therefore, ASTM F2508 ensures tribometer reliability with two safeguards. First,

manufacturers or independent testers must validate the tribometer. Second, individual

users must calibrate their tribometer to ensure their measurements fall within the

confidence interval set forth in the validation report.       If the tribometer fails either

calibration or validation, then it fails to comply with ASTM F2508.

       On February 24, 2011, just before the adoption of ASTM F2508, Gill tested the

metal rim of the utility cover.     She explained that the manufacturer calibrated her

tribometer in January 2011. Gill found that the rim's coefficient of friction when wet was

0.35 (± 0.02).      Gill opined that 0.35 is very slippery and not reasonably safe for

pedestrian use.     She stated that the "generally accepted standard is that 0.5 is the

established minimum value for the coefficient of friction for a reasonably safe horizontal

walking surface."

       The coefficient of friction scale ranges from 0.0 to 1.0. In 2011, the City adopted

a 0.5 coefficient of friction standard for new utility covers. Prior to that, the City did not

have a standard in place.

       On June 2, 2013, Gill conducted a second test of the metal rim.         In an effort to

recreate the wet conditions when Kill slipped, Gill poured water on the rim. Gill found

that the coefficient of friction was 0.21 (± 0.02). Explaining the different results (0.35

versus 0.21), Kill stated that Gill explained "there must be some surface contaminant of

some kind that was on the rim as tested that resulted in the lower figure the second time

around."
No. 70767-1-1/5



       The day before Gill's second test, she calibrated her tribometer and created what

she called a "Report of ASTM F2508 Validation" of the English XL tribometer. She used

the four reference tiles—granite, porcelain, vinyl, and ceramic—sent from ASTM. Her

test results showed the coefficient of friction for each tile as: 0.0700 for granite, 0.1013

for porcelain, 0.1727 for vinyl, and 0.8505 for ceramic. However, the manufacturer's

validation report for Gill's tribometer specifies the 95th percentile confidence intervals

as: 0.078-0.082 for granite, 0.132-0.137 for porcelain, 0.173-0.180 for vinyl, and 0.605-

0.616 for ceramic. None of Gill's calibration results fall within these intervals.

       On the parties' cross motions for summary judgment, the trial court held Gill's

methodology for slip-resistance testing to be unreliable and therefore unhelpful to the

jury under ER 702. The court believed Gill was qualified as an expert. However, the

court explained that Gill's tribometer was not properly calibrated when she tested the

utility cover rim. Furthermore, the court reasoned, Gill's two tests of the rim produced

different results. It concluded that Gill did not provide an adequate explanation for this

difference. "Either Ms. Gill's tribometer is inherently unreliable or the way she used it

was inherently unreliable." And, the court held that Gill failed to account for how the

presence or absence of surface contaminants may have affected her test results.

       As a result, the court excluded Gill's test results and her opinion that the rim was

unreasonably slippery. Without Gill's testimony,

       [T]he Court does not believe that plaintiff has any evidence to support her
       contention that that rim, that two-inch rim, was so inherently dangerous
       that the City does not need to be on notice of its dangerous condition, and
       because there's no other evidence that the City was on notice of its
       dangerous condition.
No. 70767-1-1/6



The court therefore held that Kill failed to demonstrate an issue of fact.    It granted the

City's motion for summary judgment and dismissed all claims against the City with

prejudice.

      After the trial court's ruling, Gill sent her tribometer to the manufacturer (Excel

Tribometers LLC) for additional testing. Using Gill's tribometer and its own reference

tiles, Excel produced the following calibration results: 0.066 for granite, 0.116 for

porcelain, 0.165 for vinyl, and 0.576 for ceramic. Like Gill's original calibration, these

results are outside the 95th percentile confidence interval in the validation report.

       Excel also conducted a calibration test using its own tribometer and Gill's

reference tiles. These results were: 0.080 for granite, 0.100 for porcelain, 0.149 for

vinyl, and 0.641 for ceramic. Except for the granite tile, these results are also outside

the 95th percentile confidence interval and all substantially different than Gill's

calibration results for the same tiles.    Excel also determined that the coefficient of

friction for Gill's ceramic reference tile varied widely from quadrant to quadrant, ranging

from 0.645 in the southeast quadrant to 0.840 in the southwest quadrant. Based its

testing, Excel asserted an additional margin of error of ± 0.03 for slip resistance values

equal to or less than 0.50 and ± 0.05 for slip resistance values greater than 0.50.

Therefore, Excel believed that Gill's tribometer satisfied the ASTM F2508 calibration

requirements.

       In a motion for reconsideration, Kill stated:

                The differences in the results which concerned the Court are not
       caused by an uncalibrated tribometer, but individual and internal variations
       in the ceramic references tiles ASTM sells to manufacturers like Excel
       (and individual tribometrists) for ASTM F2508 validation/calibration and
No. 70767-1-1/7



        the fact that ASTM F2508's testing protocols do not at this time account
        for such variations.

Kill explained that ASTM F2508 assumes the tiles' surfaces are not variable, even

though different tiles are used for validation and calibration.      She argued that the

difference between the validation report and Gill's calibration was attributable to this

variation in tiles.


        Kill also requested a Frve hearing on the applicability of ASTM F2508. Frve v.

United States. 293 F. 1013, 1014 (D.C. Cir. 1923). Kill asserted that based on Excel's

testing, there is "a real question whether ASTM F2508 is capable of producing accurate

results."   She argued that there is an "apparent lack of consensus in the scientific

community about how validation and calibration results are supposed to be interpreted."

        The trial court denied Kill's request for a Frve hearing. The court concluded that

Gill's methodology for measuring slip-resistance was not novel under Frve. The court

also denied Kill's motion for reconsideration and excluded Kill's testimony under ER 702

and ER 403. The court did not believe that tribometers are inherently unreliable, only

that Gill's tests results were unreliable, because her tribometer was not properly

calibrated and her two test results varied greatly. The court therefore left in place its

order granting the City's motion for summary judgment and dismissing with prejudice.

Kill appeals.

                                       DISCUSSION

  I.    Gill's Expert Testimony

        Kill argues that the trial court erred in excluding Gill's testimony, because Gill's

opinions and methodology regarding slip-resistance testing are helpful and reliable. Kill

makes several related arguments.        She asserts that any minor margin of error or
No. 70767-1-1/8




variance in Gill's test results goes to the weight and credibility of Gill's testimony, not its

admissibility.    She likewise argues that the trial court improperly overlooked the

additional margin of error asserted by the tribometer manufacturer. Kill also contends

that, because Gill's individual tribometer was successfully validated, there was no need

for the additional ASTM F2508 calibration protocol.

   A. Standard of Review

       We review an order granting summary judgment de novo. Moore v. Haqqe. 158

Wn. App. 137, 146, 241 P.3d 787 (2010).           Summary judgment is appropriate when

there is no genuine issue of material fact and the moving party is entitled to judgment as

a matter of law. Id In determining whether a genuine issue of material fact exists, we

construe the facts and reasonable inferences in the light most favorable to the

nonmoving party. jd at 146-47.

       We generally review evidentiary rulings for abuse of discretion. Hensrude v.

Sloss, 150 Wn. App. 853, 860, 209 P.3d 543 (2009). However, the "de novo standard

of review is used by an appellate court when reviewing all trial court rulings made in

conjunction with a summary judgment motion." Folsom v. Burger King, 135 Wn.2d 658,

663, 958 P.2d 301 (1998). Therefore, we conduct the same inquiry as the trial court in

considering Gill's testimony. Id

        The trial court must exclude expert testimony involving scientific evidence that

does not satisfy both Frve and ER 702. Lakev v. Puaet Sound Energy, Inc., 176 Wn.2d
909, 918, 296 P.3d 860 (2013). Under Frve, the court must find that the underlying

scientific theory and the "'techniques, experiments, or studies utilizing that theory'" are
generally accepted in the relevant scientific community and are capable of producing

                                                   8
No. 70767-1-1/9




reliable results. ]d (quoting Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593,

603, 260 P.3d 857 (2011)).

      Evidence that is admissible under Frve must still pass the two-part test under ER

702: (1) the witness must be qualified as an expert and (2) the expert's testimony must

be helpful to the trier of fact. State v. King County Dist. Court W. Div., 175 Wn. App.

630, 637, 307 P.3d 765, review denied 179 Wn.2d 1006, 315 P.3d 530 (2013). Courts

interpret possible helpfulness to the trier of fact broadly and favor admissibility in

doubtful cases.    Id at 638.    Evidence is helpful if it concerns matters beyond the

common knowledge of a layperson and does not mislead the jury.                ]d    Unreliable

testimony does not assist the trier of fact. Lakev, 176 Wn.2d at 918.

       In sum, Frye and ER 702 work together to regulate expert testimony. Id Frve

excludes testimony based on novel scientific methodology until there is consensus in

the relevant scientific community that the methodology is reliable. Id. at 918-19. ER

702 excludes testimony where the expert fails to adhere to that reliable methodology.

Id at 919.


   B. Gill's Methodology and Test Results Were Unreliable

       Kill is correct that "[wjhen a scientific theory has protocols for assuring reliability,

an expert's errors in applying proper procedures go to the weight, not the admissibility,

of the evidence." Id at 920. For instance, this court held that an inherent margin of

error of 0.01 percent in the Breathalyzer machine went to the weight of the breath test

results, not their admissibility. State v. Keller, 36 Wn. App. 110, 111-14, 672 P.2d 412

(1983). However, this rule does not apply if "the error renders the evidence unreliable."
No. 70767-1-1/10



Lakev, 176 Wn.2d at 920. In such cases, the trial court may exclude the unreliable

evidence under ER 702. Id

       Similarly, variance in test conditions and original conditions do not necessarily

preclude admissibility, as variations may merely go to the weight of the evidence. Bichl

v. Poinier, 71 Wn.2d 492, 497, 429 P.2d 228 (1967).           Identical conditions are not

required. Breimon v. Gen. Motors Corp., 8 Wn. App. 747, 756, 509 P.2d 398 (1973).

However, there must be substantial similarity in the test conditions and the conditions at

the time of the accident. Id Furthermore, variable test results may be excluded where

the original conditions are not accounted for in a subsequent test. Quinn v. McPherson,

73 Wn.2d 194, 201-02, 437 P.2d 393 (1968).

       Here, Gill's test results varied so significantly as to render them unreliable. Her

first test showed a coefficient of friction of 0.35 (± 0.02). Her second test showed 0.21

(± 0.02).   This is a difference of 0.14, almost 15 percent of the entire coefficient of

friction scale, which ranges from 0.0 to 1.0. This is not a minor variance.

       Furthermore, there is no documentation in the record of the rim's condition on the

day Kill slipped, other than it was wet. Gill poured water on the rim for her second test,

but was able only to speculate that some type of surface contaminant must have

caused the variation in test results.   Without more evidence, Gill could not establish

substantial similarity between her two tests, nor between the test conditions and the

condition of the rim when Kill fell. As Gill's test results and explanation demonstrate,

surface contamination can have a dramatic impact on the slipperiness of the metal rim.




                                                10
No. 70767-1-1/11




        Furthermore, Gill's tribometer was not properly calibrated under the ASTM F2508

standard at the time of her second field test. The following table shows the various

calibration results:


                          Granite         Porcelain          Vinyl          Ceramic

95th Percentile
                        0.078-0.082     0.132-0.137      0.173-0.180      0.605-0.616
Confidence Interval

Gill's calibration
using her                 0.0700           0.1013           0.1727           0.8505
tribometer and tiles

Excel's calibration
using Gill's
                           0.066            0.116           0.165            0.576
tribometer and its
own tiles

Excel's calibration
using its own                                                                 0.641
                           0.080            0.100            0.149
tribometer and
Gill's tiles


        The confidence interval represents a margin of uncertainty. Every measurement

is uncertain, in that no instrument is infinitely precise or accurate. King County Dist.

Court, 175 Wn. App. at 638. The concept of measurement uncertainty is similar to the

concept of margin of error. ]d It expresses the idea that a true value of a measurement

can never be known. ]d Even the best instruments yield only an estimate of the true

value. Id Uncertainty indicates a range in which a true value of a measurement is

likely to occur. ]d A confidence interval is one way of expressing uncertainty, |d

Here, for instance, the manufacturer is 95 percent confident that the true value of the

coefficient of friction for granite measured by the English XL tribometer lies between

0.078 and 0.082.




                                              11
No. 70767-1-1/12



       The table demonstrates that Gill's tribometer measurements for each of the four

surface reference tiles fell outside the manufacturer's 95th percentile confidence

interval.2   The same was true when Excel tested Gill's tribometer using its own
reference tiles. And, with the exception of the granite tile, Excel's measurements using

its own tribometer and Gill's tiles fell outside the confidence interval. Moreover, all three

calibration tests for all four reference tiles vary significantly.

       Both Kill and the City put forth evidence that ASTM F2508 is the industry

standard. The standard specifies that if calibration results for each tile do not fall within

the specified confidence interval, the tribometer fails calibration. ASTM F2508 § 13. A

tribometer that fails calibration does not comply with ASTM F2508 and does not

produce valid test results.     ]d   Gill's tribometer failed calibration.   As the trial court

explained, either Gill's tribometer is unreliable or the way she used it is unreliable.

Expert testimony that does not adhere to reliable methodology is properly excluded

under ER 702. Lakev, 176 Wn.2d at 918-19.

       And, lastly, as the trial court held, Gill's statement that a 0.5 coefficient of friction

is an absolute threshold for safety would mislead the jury. The City provided copious

evidence that tribometers are effective to measure only relative slipperiness, not

absolute slipperiness. Different tribometers, both across models and within models, can

give significantly different readings for the same surface.          Thus, a tribometer can



       2 Excel asserted an additional margin of error of ± 0.03 for slip-resistance
measurements under 0.50 and ± 0.05 for measurements above 0.50 to account for the
variations in reference tiles. However, the greater the margin of error, the less precise
the measurement and the less helpful the measurement is to the jury. Moreover, even
with Excel's purported additional margin of error, Gill's calibration results for porcelain
and ceramic still fall outside the 95th percentile confidence interval.


                                                   12
No. 70767-1-1/13



accurately determine whether one surface is more or less slippery than other surfaces

measured by that same tribometer, but it cannot give an objective measurement of a

surface.


       For all these reasons, we conclude that Gill's expert testimony on slip-resistance

is unreliable and misleading. It would therefore be unhelpful to the jury under ER 702.

As such, we hold that the trial court properly excluded the evidence.

   C. The Trial Court Did Not Need to Hold a Frve Hearing

       In the alternative, Kill argues that the trial court should have held a Frve hearing

to assess whether the ASTM F2508 calibration method is generally accepted and

reliable—before deciding whether Gill properly adhered to that methodology.            We

review de novo a trial court's decision not to conduct a Frve hearing. State v. Gregory,

158 Wn.2d 759, 830, 147 P.3d 1201 (2006). Frve is implicated only where '"either the

theory and technique or method of arriving at the data relied upon is so novel that it is

not generally accepted by the relevant scientific community.'" Lakey, 176 Wn.2d at 919

(quoting Anderson, 172 Wn.2d at 611).         While the admissibility of novel scientific

testimony raises Frve concerns, the application of accepted techniques to reach novel

conclusions does not. ]d

      Gill stated in her declaration that the English XL tribometer is generally accepted

in the scientific community.   The manufacturer stated that this particular tribometer

"conforms to all requirements of ASTM F2508-11 Standard Practice for Validation and

Calibration of Walkway Tribometers Using Reference Surfaces." The City submitted

several scholarly articles explaining that slip-resistance measurements are tribometer

specific. "The introduction of [ASTM F2508]. . . has produced a method which allows


                                                13
No. 70767-1-1/14




validation of each type of tribometer and the values generated during testing." This

evidence demonstrates that the ASTM F2508 is generally accepted in the relevant

scientific community and capable of producing reliable results. Without it, the literature

indicates that tribometer results are not reliable. The fact that Gill could not conform her

tribometer measurements to ASTM F2508 does not mean that ASTM F2508 is

unreliable.


 II.   Genuine Issue of Material Fact

       We must still decide whether there is a genuine issue of material fact in Kill's

remaining evidence. Municipalities have a duty to exercise reasonable care to keep

their sidewalks in a condition that is reasonably safe for ordinary travel. Keller v. City of

Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). Whether a sidewalk is reasonably

safe is generally a question of fact. See Owen v. Burlington N. & Santa Fe R.R., 153

Wn.2d 780, 788, 108 P.3d 1220 (2005). Questions of fact may be determined as a

matter of law when reasonable minds could reach but one conclusion. ]d

       The fact that the plaintiff slipped and fell does not, by itself, mean that there is an

unreasonably dangerous condition. Knopp v. Kemp & Hebert, 193 Wash. 160, 164-165,

74 P.2d 924 (1938). "It is common knowledge that people fall on the best of sidewalks

and floors. A fall, therefore, does not, of itself, tend to prove that the surface over which

one is walking is dangerously unfit for the purpose." jd Furthermore, the nonmoving

party may not rely on speculation or argumentative assertions that unresolved factual

issues remain. Marshall v. Ballv's Pacwest, Inc., 94 Wn. App. 372, 377, 972 P.2d 475

(1999).




                                                 14
No. 70767-1-1/15




       Taking all reasonable inferences in Kill's favor, there is evidence that the utility

cover rim was (1) wet from rain, (2) smooth metal, and (3) two inches wide. Kill also

stated in her declaration that she was wearing work boots at the time of her fall. It is

common knowledge that smooth, wet metal is slippery.          See Michaels v. Taco Bell

Corp., Civ. No. 10-1051-AC, 2012 WL 4507953, at *6 (D. Or. Sept. 27, 2012). This

evidence establishes that the utility cover rim was slippery when wet. However, there is

no evidence to establish that the rim was unreasonably slippery. The fact of Kill's fall is

not enough.      Therefore, without expert testimony establishing that the rim was

unreasonably dangerous, the jury would be left to speculate. There is no genuine issue

of fact to resolve.3

       Kill nevertheless argues that the City did not comply with its own standards and

practices, which she asserts is admissible to show the rim was not reasonably safe. In



       3 Kill cites two old Washington slip and fall cases that involved wet metal on
sidewalks. In Smith v. City of Tacoma, the plaintiff slipped on a wet, smooth sheet of
metal covering a coal hole on an inclined sidewalk. 51 Wash. 101, 102-03, 98 P. 91
(1908). The metal sheet was worn by years of foot traffic and several people had
previously slipped on it. ]d at 102-03. The court concluded that this evidence was
sufficient to go to the jury on the issues of negligence and constructive notice. ]d at
103. In Smith v. City of Spokane, the plaintiff slipped on a manhole cover in the
sidewalk. 103 Wash. 314, 315, 174 P. 2 (1918). The manhole was wet and partially
covered with snow and ice.     Id   Like in City of Tacoma, the manhole had been worn
smooth and other pedestrians had fallen on it. ]d at 316. On these facts, the court
refused to hold "as a matter of law, that the cover is not such a menace as to make the
city liable to answer in damages to one who is injured by falling thereon." Id at 315.
        These cases are distinguishable from Kill's case. City of Tacoma involved a
sheet of metal on an inclined sidewalk. 51 Wash. At 102-03. The manhole cover in City
of Spokane was partially covered by snow and ice. 103 Wash. At 315. Both of these
conditions increased the dangerousness of the smooth metal coverings. Furthermore,
in both cases, several previous slips indicated that the metal covers were unreasonably
slippery. By contrast, there were no prior complaints about the utility cover where Kill
slipped and fell, nor about others like it. We therefore conclude that City of Tacoma and
City of Spokane are distinguishable and do not control here.


                                               15
No. 70767-1-1/16



determining whether the defendant acted with reasonable care, the trier of fact may be

informed of the standard industry practice. Restatement (Second) of Torts § 295A

(1965); Helling v. Carey. 83 Wn.2d 514, 518-19, 519 P.2d 981 (1974).            Likewise, a

statute, regulation, or other positive enactment may help define the scope of a duty or

the standard of care.    Owen, 153 Wn.2d at 787.         However, industry custom is not

conclusive on the issue of negligence. See Helling, 83 Wn.2d 514, 518-19.

       Kill is correct that since at least 2003, the City has required all new utility cover

frames to have a nonskid surface.4 City of Seattle, Standard Plans for Municipal

Construction, Standard Plan No. 550 (2003). The City's expert, Seattle Public Utilities

Civil Engineer Steven Read, agreed that diamond plating or SlipNOT rims provide

greater traction than smooth metal. Read explained that "[y]ou definitely want a nonskid

surface" for in-sidewalk utility covers. However, the City also submitted a declaration

from Jeffrey Baker, an operations manager at WS Molnar Company, the manufacturer

of SlipNOT products.      Baker explained that he was familiar with general industry

practices. He believed that most, if not all, utilities would not require SlipNOT on a one

to two inch metal frame surrounding a SlipNOT cover. He stated, "the industry standard




       4 The record states that the utility cover in question "was likely installed in
1989 ... or before." Kill argues that, based on this date, the utility cover rim violated the
City's own 1986 standard requiring a slip-resistant rim. The 1986 standard included
not-to-scale diagram of a utility cover. City of Seattle, Standard Plans for Municipal
Public Works construction, Standard Plan No. 560 (11th Ed. 1986). It shows a
partially shaded utility cover and rim. Kill asserts that this required the utility cover rim
to be diamond plated. However, nothing in the diagram so states. Rather, the diagram
specifies only: "Steel Frame(Galv) Anchored to top unit." "Galv" presumably means
galvanized, which is a coating to prevent rust. Webster's Third International
Dictionary 932 (2002).


                                                 16
No. 70767-1-1/17




is to install flat metal frames in some installations and use SlipNOT or comparable

covers."

       The City's current requirement of nonskid utility cover rims, by itself, does not

establish that smooth metal rims are unreasonably dangerous. See Ruff v. County of

King, 125 Wn.2d 697, 705, 887 P.2d 886 (1995) (recognizing that municipalities are not

required "to update every road and roadway structure to present-day standards").

Likewise, the existence of a safer alternative does not mean that the metal rim is

unreasonably slippery. Baker's declaration also suggests that nonskid utility cover rims

are not industry custom. We therefore conclude that this evidence does not create a

genuine issue of material fact.

       We affirm.




WE CONCUR:




                                              17
