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Case law update: City of Seattle potentially liable for slip and fall on metal plate on sidewalk.

Posted Thursday, April 26, 2018 by Christopher L. Thayer

In Sluys v. City of Seattle et al**, No. 76131-5-1 (April 9, 2018), in an unpublished decision the Court of Appeals, Division 1, recently ruled the City of Seattle was potentially liable for injuries suffered by a pedestrian who slipped and fell on a metal utility vault cover (a metal plate) located on the sidewalk.

On January 6, 2012, during a rainy afternoon, Sluys slipped and fell on a wet metal utility vault cover while walking downhill on the 3rd Avenue South sidewalk between Yesler Way and South Washington Street in downtown Seattle. Sluys suffered injuries to both knees requiring surgery and a lengthy recovery. The vault cover is not owned by the City. It was installed by a utility company in the early 1990s. The City issued the permit under the City's Street Use Ordinance and the installation was completed by Summit in 1992. The vault cover encompasses at least a third of the sidewalk.

Sluys filed suit against the city and the utility company, but initially failed to name the correct utility company entity. In response to a motion to dismiss by the city and the utility company, Sluys offered the sworn testimony of Dr. Gary Sloan, PhD, a psychologist specializing in ergonomics and human factors. Dr. Sloan had conducted a friction analysis of the vault cover and determined it presented an “unsafe condition”. In his opinion, “when wet, it could be anticipated that a metal hatch cover placed in a steeply sloped walkway would pose a potential slip hazard.” The trial court dismissed Sluys’ lawsuit against both the city and the utility company and Sluys appealed.

The Court of Appeals noted government entities in Washington are "liable for damages arising out of tortious conduct ... to the same extent as if they were a private person or corporation. RCW 4.96.010(1); Washburn v. City of Federal Way, 178 Wn.2d 732(2013). To succeed on a negligence claim, the plaintiff must prove: the existence of a duty, breach of that duty, a resulting injury, and proximate cause between the breach of duty and resulting injury. The only issue before the court was whether the City owed a duty to Sluys. "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." Bodin v. City of Stanwood, 130 Wn.2d 726 (1996).

The Court of Appeals summarized municipal liability for streets and sidewalks as follows:

It is well settled that a city has a duty to maintain and repair its streets and sidewalks in order to keep them reasonably safe for ordinary travel. Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002) . . . Generally, actual or constructive notice of the unsafe condition is required before liability arises under a city's duty to maintain streets and sidewalks. . . Notice is not required, however, if the government entity either created the unsafe condition or should have anticipated the condition would develop. . . "In sum, if the government entity created the unsafe condition either directly through its negligence or if it was a condition that the governmental entity should have anticipated, the plaintiff need not prove notice." Nguyen v. City of Seattle, 179 Wn. App. 155 (2014).

The Court of Appeals points out that, while the vault cover was not owned by the City, the City conceded the utility company had applied for a permit to install the utility vault and vault cover within the City sidewalk. The City further concedes that it approved the requested permit subject to Summit complying with guidelines and parameters set by the City as to where within the public right-of-way the facilities could be located. Thus, the only question is whether when approving the permit, the City should have anticipated whether the utility vault could lead to an unsafe condition.

Sluys presented Dr. Sloan's declaration to support his assertion the vault cover was unsafe. Sloan investigated the site of Sluys's fall, took various measurements, and then applied a human factors analysis to the pertinent facts. He described his evaluation in a 15-page written declaration accompanied by multiple photographs, charts, and research papers. The City concedes, ·"the declaration of Dr. Gary Sloan ... raised a genuine issue of material fact that the vault cover currently presents an unsafe condition. But more than just concluding that the utility vault was slippery, Sloan also opined:

When wet, it could be anticipated that a metal hatch cover placed in a steeply sloped walkway would pose a potential slip hazard. In the safety disciplines, if a hazard can be identified, then reasonable attempts should be made to eliminate the hazard. If the hazard cannot be eliminated, then people should be guarded from exposure to the hazard. Lastly, if residual risk remains following reasonable attempts at elimination and guarding, people should be warned about the hazard and provided direction for how to avoid harm. In the present matter, the hatch cover should not have been placed in a predictable pedestrian travel path having high density pedestrian traffic.

(Emphasis in original).

The Court of Appeals held this evidence was sufficient to raise an issue of material fact, and reversed the trial court’s dismissal of Sluys’ claims against the city.

Although this is an “unpublished” decision, and therefore has no direct precedential value, the Court of Appeals decision in the Sluys’ case is noteworthy in that it found the City could potentially be liable for a condition it did not create or construct – but merely permitted. This is likely because the metal plate was located in the middle of the sidewalk and the City has an independent duty to ensure the sidewalks are reasonably safe for users.

Anyone who lives in the City of Seattle knows the metal plates and grills in the sidewalks can be treacherous, especially on rainy days. If you or someone you know has been injured due to an unsafe condition on a city sidewalk, please contact managing member Chris Thayer for more information: (206) 805-1494 or CThayer@PivotalLawGroup.com.