Grimsrud v. State

• Decision Date: 20 December 1991
• Docket Number: No. 27508-9-I,27508-9-I
• Citation: 63 Wn.App. 546,821 P.2d 513
• Court: Washington Court of Appeals
• Parties: David John GRIMSRUD, Appellant, v. STATE of Washington and Watson Asphalt Co., Inc., Respondents, William Carroll and Jane Doe Carroll, his wife, and the marital community composed thereof, Defendants.

Page 546

63 Wn.App. 546

821 P.2d 513

David John GRIMSRUD, Appellant, v. STATE of Washington and Watson Asphalt Co., Inc., Respondents William Carroll and Jane Doe Carroll, his wife, and the marital community composed thereof, Defendants.

No. 27508-9-I.

Court of Appeals of Washington Division 1.

Dec. 20, 1991.

Philip Mahoney, Seattle, for appellant.

Richard C. Robinson, Seattle, for respondents.

KENNEDY, Judge.

Appellant David Grimsrud (Grimsrud) appeals the trial court's grant of summary judgment to respondents State of Washington and Watson Asphalt Co. (respondents). Grimsrud contends that respondents were negligent in failingto warn motorists adequately of dangers existing in a road construction project and that the failure to warn proximately caused his accident. We reverse the summary dismissal and remand for trial.

I

On August 9, 1985, at approximately 8:55 p.m., appellant David Grimsrud was riding a motorcycle and pulling a trailer northbound on State Route 97. The northbound lane in which Grimsrud was travelling recently had been paved, leaving a 4 inch drop from the northbound lane to the southbound lane. A car driven by Mr. Carroll pulled onto the roadway in front of Grimsrud. Grimsrud moved into the southbound lane to pass Mr. Carroll. In attempting to return to the raised northbound lane, Grimsrud's motorcycle and trailer flipped.

Grimsrud brought an action against respondents, State of Washington and Watson Asphalt Co. and against Mr. Carroll, seeking to recover for his injuries. Grimsrud asserted that respondents had inadequately warned motorists of the dangerous condition of the road. Grimsrud claimed that he did not see any signs warning of the abrupt lane edge and that if he had seen such signs, he would not have attempted to pass the Carroll vehicle.

Respondents moved for summary judgment arguing that the site of Grimsrud's accident was well marked with signs warning of the abrupt lane edge and that the signs were in accordance with the Manual of Uniform Traffic Control Devices (MUTCD). Respondents asserted that as a matter of law their signs provided adequate warning to Grimsrud as to the condition of the road. The court granted respondents' motion for summary judgment.

Grimsrud timely appealed to this court.

II

In determining whether an order of summary judgment has been properly entered, this court must engage in the same inquiry as the trial court. Rhea v. Grandview Sch. Dist. JT 116-200, 39 Wash.App. 557, 559, 694 P.2d 666 (1985). Generally, issues of negligence are not susceptible tosummary judgment. Wojcik v. Chrysler Corp., 50 Wash.App. 849, 854, 751 P.2d 854 (1988); Mejia v. Erwin, 45 Wash.App 700, 704, 726 P.2d 1032 (1986). However, after viewing the evidence in the light most favorable to the non-moving party, a motion for summary judgment should be granted if there is no genuine issue of material fact or if reasonable minds could reach only one conclusion on that issue. Sea-Pac Co. v. United Food & Comm'l Workers Local Union 44, 103 Wash.2d 800, 802, 699 P.2d 217 (1985). In the instant case, we must determine whether reasonable minds could only conclude that, at the time of the accident, the signs warning of the abrupt lane change sufficiently apprised a motorist using reasonable care that the roadway was not in safe condition for ordinary travel.

Respondents first assert that they have not breached any duty owed to Grimsrud, thus, they cannot be found negligent as a matter of law.

Actionable negligence occurs when a party breaches a duty owed to another. Wojcik, 50 Wash.App. at 854, 751 P.2d 854. Respondents have a duty to ensure that:

streets be maintained in a reasonably safe condition and that users be reasonably and adequately warned of any inherently dangerous or deceptive conditions and, in certain instances, that adequate barriers be placed and maintained. We think the rule is particularly applicable where the conditions complained of arise out of the actual construction, repair, and maintenance of the roadway.

(Citations omitted.) Smith v. Acme Paving Co., 16 Wash.App. 389, 393-94, 558 P.2d 811 (1976); see also Bulette v. City of Bremerton, 34 Wash.2d 834, 837, 210 P.2d 408 (1949) (stating that "it is the duty of a municipal corporation to exercise ordinary care to keep its streets in a reasonably safe condition for ordinary travel for persons using them in a proper manner and exercising due care for their own safety."). Respondents owed Grimsrud a duty to maintain the roadway in a reasonably safe condition for travel and to adequately warn Grimsrud of any dangerous conditions resulting from the construction. Whether respondents breached this duty is a question of fact unless reasonable minds could only conclude that respondents maintained the roadway in a reasonably safe condition and that they adequately warned motorists of the inherently dangerous condition of the roadway.

Respondents assert that the roadway was signed in accordance with the Manual of Uniform Traffic Control Devices (MUTCD), thus, respondents assert as a matter of law they were not negligent. In support of their motion for summary judgment, respondents presented an affidavit by Trooper George Lane. Trooper Lane arrived on the accident scene at 9:30 p.m. Trooper Lane investigated the accident and stated that signs warning of the abrupt lane edge were in place.

Respondents also presented an affidavit by John Sloss, a construction inspector for the Department of Transportation who inspected the site of the accident on the day of the accident and the next day. Sloss stated that on August 9, 1985, he inspected the project location and that "temporary construction signs, including abrupt lane edge signs, were properly placed in accordance with the MUTCD throughout the project."

In addition, Sloss attached to his affidavit a map of the project, excerpts from the construction project diary, and copies of photographs depicting permanent signs and temporary construction signs and their locations. A diary entry for August 9, 1985, notes that at 7:00 p.m. the abrupt lane edge signs were in order throughout the project. Photographs reveal that the abrupt lane edge signs were placed on stand up easels that are lower than permanent signs. Photographs and maps also reveal that at the site of the accident there was a permanent "pass with care" sign and before the accident site there were "do not pass" signs.

Contrary to respondents' arguments, the MUTCD does not resolve the factual issue of whether the signs stating "abrupt lane edge" provided an adequate warning to motorists as a matter of law. The MUTCD does not specify what is an adequate warning to motorcyclists or drivers of cars for an abrupt lane edge; the MUTCD provides that "[f]requent and abrupt changes in geometrics, such as ... dropped lanes ... should be avoided." § 6A-5-2b. The MUTCD also states that Adequate warning, delineation, and channelization by means of proper pavement marking, signing, and use of other devices which are effective under varying conditions of light and weather should be provided to assure the motorist of positive guidance in advance of and through the work area.

§ 6A-5-3a.

Moreover, the section covering regulatory signs mandates that "[s]igns shall be placed in positions where they will convey their messages most effectively ..." § 6B-3. The messages of warning...