      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                )
NANCI MILLSON,                                  )     No. 67931-7-1
                                                )
                        Appellant,              )     DIVISION ONE
                                                )
                V.                              )
                                                )
CITY OF LYNDEN, a municipal                     )     PUBLISHED
corporation; TIM NEWCOMB and                    )
HELEN NEWCOMB,                                  )     FILED: April1. 2013
                                                )
                        Respondents.            )
                                                )


       Cox, J.- A municipality has a duty to pedestrians using its sidewalks to

keep the sidewalks reasonably safe for their intended use. 1 Generally '"[a]

pedestrian on a sidewalk who has no knowledge to the contrary may proceed on

the assumption that the city has performed its full duty and has kept the sidewalk

in a reasonably safe condition .... "2 Nor is a pedestrian "required to keep his

eyes on the walk immediately in front of him at all times."3 And the fact that there

is an offset that a pedestrian could see if he looked "does not constitute ...




       1
         Johnson v. City of Ilwaco, 38 Wn.2d 408, 414, 229 P.2d 878 (1951) (quoting
Fritsche v. City of Seattle, 10 Wn.2d 357, 360, 116 P.2d 562 (1941)).
       2
         Stone v. City of Seattle, 64 Wn.2d 166, 171,391 P.2d 179 (1964) (quoting
Blasick v. City of Yakima, 45 Wn.2d 309, 313,274 P.2d 122 (1954)).
       3
           l!t. (quoting Blasick, 45 Wn.2d at 313).
No. 67931-7-1/2


negligence as a matter of law unless there is a duty to look for that particular

thing." 4

        Here, the trial court decided, on conflicting evidence in this record, that the

offset in the sidewalk was "open and obvious" to Nanci Millson, who fell after

tripping on the offset and sustained personal injuries. This ruling improperly

relieved the City of its duty to keep its sidewalks reasonably safe for their

intended use. Accordingly, we reverse the summary judgment in favor of the

City.

        Millson cross appeals, arguing that the trial court denied her cross-motion

for partial summary judgment on the City's liability. But material factual issues as

to the causation element of her tort claim remain. Partial summary judgment in

her favor is not appropriate.

        We remand this matter to the trial court for further proceedings.

        In 2007, Millson went for a walk around Lynden, Washington, where she

lives. Millson regularly walked around her neighborhood in Lynden, Greenfield

Village. During her walk, Millson noticed multiple places where the sidewalk had

cracked and lifted. The conditions were so bad in one portion of her walk that

she left the sidewalk and continued on the road.

        Though Millson later acknowledged that as a regular walker she knew that

the sidewalk conditions in her neighborhood were not good, she felt that the

streets closer to her house were in better condition. A block away from her

house, Millson continued onto a section of sidewalk on which she had never

walked before. She picked up speed.
        4
            &,. (quoting Blasick, 45 Wn.2d at 313-14).
                                                 2
No. 67931-7-1/3


       Millson then noticed one of her neighbors returning home and was

momentarily distracted by his arrival. She tripped on an elevated sidewalk lift,

which was approximately 1.5 to 2 inches high. She fell to the ground, injuring her

hands, shoulders, face, and ribs.

       Millson sued the City of Lynden for negligently failing to maintain the

sidewalk in a reasonably safe condition and consequently causing her injuries.

In her First Amended Complaint, Millson joined defendants Tim and Helen

Newcomb and Samuel and Elaine Halbert, based on the City's assertion of an

affirmative defense related to these parties. The Newcombs and the Halberts

owned property abutting the sidewalk offset.

      The City moved for summary judgment, arguing that it did not owe a duty

to Millson because the sidewalk offset was open and obvious and known to

Millson. The Newcombs joined the City's motion.

       In response, Millson opposed this motion and made a cross-motion for

partial summary judgment as to liability against the City. The court granted the

City and the Newcombs' motion for summary judgment.

       Millson appeals.

                       SUMMARY JUDGMENT FOR CITY

       Millson argues that the trial court erred when it granted the City's summary

judgment motion. We agree. There are genuine issues of material fact for trial

as to the City's negligence.

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

issue as to any material fact and the moving party is entitled to a judgment as a



                                             3
No. 67931-7-1/4


matter of law. 5 '"A material fact is one that affects the outcome of the litigation."'6

When a defendant moves for summary judgment, it bears the initial burden of

showing the absence of an issue of material fact. 7 If a defendant makes that

initial showing, then the burden shifts to the plaintiff to establish that there is a

genuine issue for the trier of fact. 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

       The City concedes that the applicable review standard is de novo. 10 In its

briefing, the City argues that an additional, different standard applies in this case

because of "findings" by the trial court. But, at oral argument before this court,

the City properly conceded that the sole governing standard for our review of the
                                                                                 1
summary judgment ruling is de novo. Accordingly, Dolan v. King Counti and                 !n
reMarriage of Rideout, 12 on which the City relied in its briefing, are irrelevant to

our analysis.


          5
              CR 56(c).
       6
         Eleen Constr.. Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965
(2012) (quoting Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780,789, 108 P.3d
1220 (2005)).
          7
              Young v. Key Pharm .. Inc., 112 Wn.2d 216,225,770 P.2d 182 (1989).

          8&
          9
               Lam v. Global Med. Sys .. Inc., 127 Wn. App. 657, 661 n.4, 111 P.3d 1258
(2005).
          10
               Brief of Respondent City of Lynden at 3.
          11
               172 Wn.2d 299, 258 P.3d 20 (2011 ).
          12
               150Wn.2d 337,77 P.3d 1174 (2003).
                                                   4
No. 67931-7-1/5


       To prove negligence, the plaintiff must establish "(1) the existence of a

duty owed to the complaining party; (2) a breach of that duty; (3) a resulting

injury; and (4) that the claimed breach was a proximate cause of the injury." 13

       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. 14 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. 15 While a city is not an insurer of the personal safety of pedestrians, it

has a duty to keep its sidewalks reasonably safe.

       "A test which is sometimes applied to determine whether a city has
       performed its duty is whether a reasonably cautious man, having
       the duty to preserve and repair the sidewalks, would or would not
       consider a particular defect as one where pedestrians might be
       injured ."[161

       The supreme court has made clear that a city is not relieved of its duty to

citizens where an offset is open and obvious. In Blasick v. City of Yakima, the

City urged "that the injured pedestrian 'was not looking where she was walking,'
                                                                                17
and that the 'depression was plainly visible, open, obvious and apparent."'          The




       13
            Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992).
       14
         Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002); 6A
WASHINGTON PRACTICE: WASHINGTON PATIERN JURY INSTRUCTIONS: CIVIL 140.01 (6th
ed. 2012) (WPI).
       15
            Wright v. City of Kennewick, 62 Wn.2d 163, 167, 381 P.2d 620 (1963); WPI
140.02.
       16
        Johnson, 38 Wn.2d at 414 (quoting Fritsche v. City of Seattle, 10 Wn.2d
357,360,116 P.2d 562 (1941)).
       17
            45 Wn.2d 309, 313, 274 P.2d 122 (1954).
                                               5
No. 67931-7-1/6


supreme court rejected this argument as a bar to the City's negligence. 18 In so

doing, the Blasick court reiterated the supreme court's previous holdings as to a

city's duty to pedestrians. "[A] pedestrian is not required to keep his eyes on the

walk immediately in front of him at all times .... "19 Nor does "the fact that there

is something in a pedestrian's path which he could see if he looked and which he

does not see because he does not look, ... constitute ... negligence as a matter

of law .... "20 Instead, a plaintiff's comparative negligence may reduce the

amount of damages she can claim in proportion to the percentage of negligence

attributable to her. 21

        If there is a question as to the open and obvious nature of a sidewalk

offset, the supreme court has held that this is a question of fact that should be

presented to the jury:

               We have decided in other contexts that, although one must
       use his faculties and senses to discover and avoid danger, there is
       not in all instances a positive duty of looking for particular objects in
       one's path which, admittedly, could have been seen if only the
       plaintiff had looked. In such cases, we made it clear that it was for
       the jury to decide whether a reasonable man, in the plaintiff's
       shoes, would, under the circumstances, have failed to perceive the
       obstacle in his pathway. [221




        18
             ~at 313-14.
        19
         ~(citing Kennedy v. City of Everett, 2 Wn.2d 650, 654; 99 P.2d 614
(1940); Clevenger v. City of Seattle, 29 Wn.2d 167, 169-70, 186 P.2d 87 (1947)).

        20
             ~(citing Hines v. Neuner, 42 Wn.2d 116, 121, 253 P.2d 945 (1953)).

        21
        See David K. DeWolf & Keller W. Allen, 16 WASHINGTON PRACTICE: TORT
LAW AND PRACTICE§ 8.2, at 252-53 (3d ed. 2006).

        22
             Hines, 42 Wn.2d at 121 (emphasis added) (citations omitted).

                                                6
No. 67931-7-1/7


This conclusion is consistent with the analysis of McQuillin's treatise on municipal

corporations: "Where comparative negligence is the law, the obvious danger of

the street may be considered by the trier of fact to determine the percentage of

the plaintiff's negligence."23

       Additionally, a plaintiff's knowledge of a dangerous condition in a

sidewalk is typically analyzed as a question of a plaintiff's negligence. In Sutton

v. City of Snohomish, 24 Lorence v. City of Ellensburgh, 25 Shearer v. Town of

Buckley, 26 Austin v. City of Bellingham, 27 Apker v. City of Hoquiam, 28 Kennedy v.
                   29
City of Everett,        and Clevenger v. City of Seattle, 30 the supreme court

considered a municipality's duty to maintain its sidewalks. In all of these cases,
                                                                                      31
the plaintiff was injured while walking along a sidewalk or driving along a street.

And, in all of these cases the municipality argued that the injured party did not

exercise reasonable care or should have known of the danger because of his




       23
         19 EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATION§ 54:156, at
516 (3d ed. 2004).
       24
            11 Wash. 24, 39 P. 273 (1895).
       25
            13 Wash. 341,43 P. 20 (1895).
       26
            31 Wash. 370, 72 P. 76 (1903).
       27
            45 Wash. 460, 88 P. 834 (1907).
       28
            51 Wash. 567, 99 P. 746 (1909).
       29
            2 Wn.2d 650, 99 P.2d 614 (1940).
       30
            29 Wn.2d 167, 186 P.2d 87 (1947).

        !fL. at 167-68; Apker, 51 Wash. at 568; Austin, 45 Wash. at 460; Shearer,
       31

31 Wash. at 372-73; Lorence, 13 Wash. at 342; Sutton, 11 Wash. at 25-26.
                                                   7
No. 67931-7-1/8

                      32
prior knowledge.           But, in none of these cases did the supreme court hold that

knowledge barred the plaintiff's claim entirely. 33 Instead, the court analyzed this

question as one of a plaintiff's comparative negligence. 34 Thus, in these

cases, the plaintiff's previous knowledge of a danger or unreasonable action was

not a barto her negligence claim, nor did it relieve the municipality of its duty.

          "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." 35 The existence

of a legal duty is a question of law which an appellate court reviews de novo. 36

"[W]here duty depends on proof of certain facts that may be disputed, summary

judgment is inappropriate." 37

          Here, the City expressly concedes that it has a duty to maintain its

sidewalks "in a condition that is reasonably safe for pedestrians." Nor does the

City contest that it had actual notice of the sidewalk offset in this case. In 2007,

the City wrote a letter to the Newcombs stating, "It has come to the City's


          32
         See Clevenger, 29 Wn.2d at 170-71; Apker, 51 Wash. at 571; Austin, 45
Wash. at 461; Shearer, 31 Wash. at 375; Lorence, 13 Wash. at 343-44.
          33
         See Clevenger, 29 Wn.2d at 170-71; Apker, 51 Wash. at 571; Austin, 45
Wash. at 461; Shearer, 31 Wash. at 375; Lorence, 13 Wash. at 343-44.
          34
         Clevenger, 29 Wn.2d at 170-71; Apker, 51 Wash. at 571; Austin, 45 Wash.
at 461; Shearer, 31 Wash. at 375; Lorence, 13 Wash. at 343-44.
          35
         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 (1983)).
          36
               Degel v. Majestic Mobile Manor. Inc., 129 Wn.2d 43, 48, 914 P.2d 728
(1996).
          37
               Afoa v. Port of Seattle, 160 Wn. App. 234, 238, 247 P.3d 482 (2011).
                                                  8
No. 67931-7-1/9


attention that the sidewalk abutting the following described property ... presents

a potential hazard, and is in need of repair." But, the City claims that it has "no

duty to warn of conditions that are open and obvious to the user." And, it argues,

this is particularly true when the person claiming injury knew about the

dangerousness of the City's sidewalks. Thus, the City takes the position that it is

relieved of its duty because the sidewalk offset where Millson was injured was

"open and obvious" and because Millson had knowledge of the offset.

       But this is not the law. As our supreme court has held, generally a

pedestrian's knowledge of the dangerousness of a sidewalk will not relieve a city

of its duty. 38 The same is true of a dangerous offset that is open and obvious.

Here, where there is arguably a dispute whether the offset that caused Millson's

injury was "open and obvious" and whether Millson had knowledge of its danger,

reasonable minds could differ as to the City's duty and consequent negligence.

Thus, the trial court could not properly grant summary judgment.

       The City claims that the offset that caused Millson to fall was open and

obvious and that Millson had knowledge of it. But Millson contests these claims.

These are genuine issues of material facts. While the City contends that Millson

knew she "needed to exercise caution in this area ... [and] did so for a while,

and then allowed herself to become distractedr.{ Millson claims otherwise. She

states that she had walked on the street where she fell only a couple of times

before. Further, she claims she had never before walked on the particular

portion of the sidewalk where she fell. Thus, given the factual discrepancies



       38
            See Blasick, 45 Wn.2d at 313-14.
                                               9
No. 67931-7-1/10


whether the sidewalk offset was an open and obvious danger to Millson, the

consequent allocation of fault was a question for a jury to decide.

       Additionally, as the supreme court's holdings in numerous cases make

clear, any prior knowledge that Millson had of the offset would go to her own

negligence. Millson's knowledge of the dangerousness of the particular sidewalk

in question is a genuine issue of material fact. But, even if she did have such

knowledge, that does not relieve the City of its duty to provide reasonably safe

sidewalks.

       The City points to Johnson v. City of llwaco 39 to support its argument, but

it mischaracterizes the language of that case. 40 There, Johnson tripped on a

sidewalk offset on an Ilwaco street. 41 The supreme court held that the evidence

presented by Johnson justified submitting the case to the jury. 42 It then reversed
                                                                   43
the trial court's order of judgment notwithstanding the verdict.        In so holding, it
                                                                                     44
listed a number of issues that are proper questions for the jury to determine.

These issues included: "the extent to which [the sidewalk defect's] presence ...




       39
            38 Wn.2d 408, 229 P.2d 878 (1951).
       40
          Brief of Respondent City of Lynden at 13 (The City incorrectly cites Lewis v.
City of Spokane, 124 Wash. 684, 215 P. 36 (1923), for the quotation on which it
relies).
       41
            Johnson, 38 Wn.2d at 409-10.
       42
            .!.9.:. at 416.
       43
            .!.9.:. at 412-13.
       44
            .!.9.:. at 413.
                                              10
No. 67931-7-1/11


would ordinarily be seen or observed by travelers on the sidewalk .... "45 Thus,

the language on which the City relies was a discussion of issues that are

generally jury questions, not those decided by the court on a grant of summary

judgment.

        The City argues that the Johnson court held that another issue in

determining a City's duty is "whether the user was 'using the sidewalk in the

exercise of ordinary care."'46 While this is an accurate quotation from Johnson,

it does not support the City's contention that it did not owe Millson a duty. Millson

was walking on the sidewalk and became distracted. But, as noted above,
                                                                       47
distraction itself has not been found to bar a plaintiff's recovery.

        The City also cites Hoffstatter v. City of Seattle, 48 but this case is also

unhelpful. There, this court addressed the duty owed by a city with respect to a

parking strip, not a sidewalk. In the Hoffstatter opinion, this court acknowledged

that a different duty would be owed by a municipality in the context of a sidewalk

offset. "It 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."49 Thus, the Hoffstatter opinion is unhelpful.




        45   kL
        46
             Brief of Respondent City of Lynden at 13 (quoting Johnson, 38 Wn.2d at
414).
        47
             Clevenger, 29 Wn.2d at 170-71.
        48
             105 Wn. App. 596, 20 P.3d 1003 (2001).
        49
             !fLat 601 (emphasis added).
                                               11
No. 67931-7-1/12


      Additionally, the City relies on three other cases to support its argument

that it owed no duty to Millson: Barker v. Skagit Speedway, 5° Howard v. Horn, 51

and Seiber v. Poulsbo Marine Center. Inc. 52 But, all of these cases involve

private landowners and their duty to invitees rather than a municipality's duty

to the public. 53 As noted above, a municipality such as the City generally owes a

higher duty of care to those traveling on its sidewalks than do private

landowners. Thus, none of these cases are helpful.

       Finally, the City argues that "[t]o decide a premises liability case like this

one, this court should rely on the legal standard found in Restatement Second of
               54
Torts§ 343."        It then concludes that the Restatement supports its position. It

does not. Restatement § 343 also primarily addresses private landowners, not

municipalities. 55 Moreover, our supreme court has previously rejected reliance

on§ 343 without a party also acknowledging the language of§ 343A. 56




       50
            119 Wn. App. 807, 82 P.3d 244 (2003).
       51
            61 Wn. App. 520, 810 P.2d 1387 (1991).
       52
            136 Wn. App. 731, 150 P.3d 633 (2007).
       53
          Barker, 110 Wn. App. at 809-10 (involving the duty owed by a race track to
an invitee); Howard, 61 Wn. App. at 522-23 (analyzing the duty owed by a landlord
to his tenant); Seiber, 136 Wn. App. at 733, 739 (duty owed by business to
pedestrian injured on public boardwalk outside of the store).
       54
            Brief of Respondent City of Lynden at 10.
       55
            See RESTATEMENT (SECOND) OF TORTS§ 343A (1965).
       56
          Kamla v. Space Needle Corp., 147 Wn.2d 114, 125-26, 52 P.3d 472 (2002)
(noting that Space Needle's argument as regarded § 343 improperly "ignores section
343A").
                                                12
No. 67931-7-1/13


       As § 343A makes clear, municipalities owe a greater duty to the public

than do private landowners. 57 The Restatement states that "[i]n determining

whether the possessor should anticipate harm from a known or obvious danger,

the fact that the invitee is entitled to make use of public land, or of the facilities of

a public utility, is a factor of importance indicating that the harm should be

anticipated. "58

       Additionally, the Comments to § 343A of the Restatement emphasize a

municipality's greater duty of care. "As is stated in Subsection (2), ... a public

utility, government, or government agency may have special reason to anticipate

that one who so enters will proceed to encounter known or obvious dangers; and

such a defendant may therefore be subject to liability in some cases where the

ordinary possessor of land would not." 59 The Comment does include a

caveat: "Even such defendants, however, may reasonably assume that

members of the public will not be harmed by known or obvious dangers which

are not extreme, and which any reasonable person exercising ordinary attention,
                                                              60
perception, and intelligence could be expected to avoid."          But that caveat does

not apply here. Because there was a dispute as to the open and obvious nature

of the sidewalk offset and as to Millson's knowledge of the sidewalk's

dangerousness, the trial court's grant of summary judgment was in error.



       57
            RESTATEMENT (SECOND) OF TORTS§     343A.

       58~


        59~


       ao ~ cmt. g.
                                               13
No. 67931-7-1114


                       PARTIAL SUMMARY JUDGMENT FOR MILLSON

            Millson argues that the trial court erred when it denied her motion for

summary judgment against the City. We disagree.

            As noted above, summary judgment is appropriate if no genuine issue of

material fact exists and the moving party is entitled to a judgment as a matter of
       61
law.        "'A material fact is one that affects the outcome of the litigation."'62

"Where the facts are undisputed and but one reasonable inference can be drawn

from them, the question of negligence is one of law. Only if different results

might be honestly reached by different minds is the question one of fact for the

jury." 63 This court reviews an order on summary judgment de novo, performing

the same inquiry as the trial court. 64

            As we stated above, to make out a prima facie case of negligence, a

plaintiff must establish duty, breach, injury, and causation. 65

            Here, whether Millson's knowledge or the open and obvious nature of the

offset should warrant a conclusion that she is contributorily negligent is a factual

question for the jury to decide. Thus, it would have been inappropriate for the




            61
                 CR 56(c); Hontz v. State, 105 Wn.2d 302,311, 714 P.2d 1176 (1986).
            62
                 Eleen Cant, 174 Wn.2d at 164 (quoting Owen, 153 Wn.2d at 789).
            63
                 Meissner v. City of Seattle, 14 Wn. App. 457, 458-59, 542 P.2d 795 (1975).
            64
        Simpson Tacoma Kraft Co. v. Dep't of Ecology, 119 Wn.2d 640, 646, 835
P.2d 1030 (1992).
            65
                 Schooley v. Pinch's Deli Market. Inc., 134 Wn.2d 468, 474, 951 P.2d 749
1998).
                                                    14
No. 67931-7-1/15


trial court to determine liability of the City in the absence of a determination of

this necessary element of her tort claim.

       We reverse the summary judgment dismissal and remand for further

proceedings.

                                                           C:v-t, J.
WE CONCUR:




                                              15
