Hansen v. Washington Natural Gas Co., 7393-1-I

• Decision Date: 18 August 1980
• Docket Number: No. 7393-1-I,7393-1-I
• Citation: 27 Wn.App. 127,615 P.2d 1351
• Parties: Gudrun Emma HANSEN, Appellant, v. WASHINGTON NATURAL GAS COMPANY and City of Seattle, Respondents.
• Court: Washington Court of Appeals

Page 127

27 Wn.App. 127

615 P.2d 1351

Gudrun Emma HANSEN, Appellant, v. WASHINGTON NATURAL GAS COMPANY and City of Seattle, Respondents.

No. 7393-1-I.

Court of Appeals of Washington, Division 1.

Aug. 18, 1980.

Reconsideration Denied Sept. 17, 1980.

Miracle, Pruzan & Nelson, Steven R. Pruzan, Seattle, for appellant.

Lee, Smart, Cook, Biehl & Martin, John Patrick Cook, Seattle, for respondents.

RINGOLD, Judge.

Plaintiff Gudrun E. Hansen sued defendants Washington Natural Gas Company (W.N.G.) and the City of Seattle for damages. After a jury verdict in favor of Hansen, the trial judge granted a judgment n. o. v. We reverse.

En route to work in the morning, Hansen customarily walked westbound on West Emerson Street, an arterial in the Magnolia section of Seattle. She generally proceeded along the south side of Emerson Street past its intersection with Viewmont Way, then walked diagonally across West Emerson Street approximately midway between Viewmont Way and Magnolia Boulevard to the bus stop on the north side of Emerson Street.

On the morning of October 6, 1977, however, upon reaching the corner of Emerson Street and Viewmont Way, Hansen observed a W.N.G. truck parked on the south side of Emerson Street, excavation being done on the north side of Emerson Street, and two holes in the roadway, each covered by wooden planks to allow vehicular traffic. The work area was surrounded by orange cones and sawhorse-type barricades, except the area of planks. Rather than walking along the sidewalk and crossing at the intersection, Hansen started to diagonally cross Emerson Street to a point just west of the excavation. As she was crossing, she slipped on the plank covering one of the holes in the roadway, resulting in serious injuries which led to this suit. The jury returned a verdict finding total damage to Hansen for $50,000, but that her own negligence was a proximate cause of her injuries to the extent of 60 percent, and awarded her $20,000.

The basic question presented on appeal is whether the trial judge was correct in ruling that as a matter of law the defendants owed no duty to the plaintiff.

In Levy v. North American Co. for Life and Health Ins., 90 Wash.2d 846, 851, 586 P.2d 845 (1978), our Supreme Court stated the test for setting aside a jury verdict:

(The motion admits) the truth of the nonmoving party's evidence and all reasonable inferences drawn therefrom. . . . The trial court has no discretion and may grant the motion only where there is no competent evidence nor reasonable inference which would sustain a jury verdict in favor of the nonmoving party. If there is any justifiable evidence upon which reasonable minds might reach conclusions that sustain the verdict, the question is for the jury.

(Citation omitted.) Applying that test, we hold that the granting of the judgment n.o.v. was improper.

Washington has consistently recognized the general rule that when a party brings an action in tort, regardless of the particular theory of liability relied upon, he or she has the burden of showing that:

(1) there is a statutory or common-law rule that imposes a duty upon defendant to refrain from the complained-of conduct and that is designed to protect the plaintiff against harm of the general type; (2) the defendant's conduct violated the duty; and (3) there was a sufficiently close, actual, causal connection between defendant's conduct and the actual damage suffered by plaintiff.

(Emphasis in original.) Rikstad v. Holmberg, 76 Wash.2d 265, 268, 456 P.2d 355, 357 (1969); Maltman v. Sauer, 84 Wash.2d 975, 530 P.2d 254 (1975); Hojem v. Kelly, 93 Wash.2d 143, 606 P.2d 275 (1980); McLeod v. Grant County School Dist. 128, 42 Wash.2d 316, 255 P.2d 360 (1953). The trial court in its oral ruling concluded that the City and W.N.G. owed no duty to protect Hansen from the risk of harm which befell her. Hansen argues that the trial court erred in granting the judgment n.o.v. because there were sufficient facts alleged to require a jury to consider the specific issues of duty, foreseeability and proximate cause.

The question of duty encompasses the risks foreseeable from the conduct of the alleged tortfeasor. As stated in Rikstad v. Holmberg, supra, 76 Wash.2d at 268, 456 P.2d at 358:

The better considered authorities do not regard foreseeability as the handmaiden of proximate cause. To connect them leads to too many false premises and confusing conclusions. Foreseeability is, rather, one of the elements of negligence; it is more appropriately attached to the issues whether defendant owed plaintiff a duty, and, if so, whether the duty imposed by the risk embraces that conduct which resulted in injury to plaintiff. The hazard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant's conduct was negligent.

Absent public policy to the contrary, a common law duty is measured by the foreseeability of the risk of harm to others. The rule is stated in 2 F. Harper & F. James, The Law of Torts § 18.2, at 1018-19 (1956):

(I)nquiry is made into why the particular act or omission complained of was negligent. This will be because the offending conduct foreseeably involved unreasonably great risk of harm to the interests of someone other than the actor. This view would limit the scope of the duty accordingly: the obligation to refrain from that particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails.

The latter is the prevailing view. It means that in each case plaintiff must bring himself within the class of persons threatened by defendant's conduct. "Proof of negligence in the air, so to speak, will not do." The leading case on this point is Palsgraf v. Long Island Railroad Co., (248 N.Y. 339, 162 N.E. 99 (1928)).

(Emphasis in original. Footnotes omitted.) See also W. Prosser, Handbook of the Law of Torts § 43, at 250 (4th ed. 1971).

The trial court instructed the jury:

Where construction work is being done on a city street, both the city and the company doing the work have a duty to exercise ordinary care to keep the public ways in such a condition that they are reasonably safe for ordinary travel by persons using them in a manner that can be reasonably anticipated.

Instruction No. 10.

Generally, there is a duty to maintain streets in a reasonably safe condition, to reasonably and adequately warn users of any inherently dangerous or deceptive conditions and, in certain instances, to erect and maintain adequate barriers. Bartlett v. Northern Pac. Ry. Co., 74 Wash.2d 881, 447 P.2d 735 (1968); Smith v. Acme Paving Co., 16 Wash.App. 389, 558 P.2d 811 (1976). The question of whether a general field of danger should have been anticipated is generally one of fact. Berg v. General Motors Corp., 87 Wash.2d 584, 555 P.2d 818 (1976). The City had a duty to place a proper barricade on Emerson Street to maintain it in a condition reasonably safe for the ordinary travel of persons using it in a manner that can be reasonably anticipated. Testimony from a W.N.G. employee indicated that it was foreseeable that a pedestrian may walk on the planks within the barricade, and the company was constantly replacing them because they would become slippery, endangering pedestrians walking on them. If the risk is foreseeable, then there is a duty, and a defendant may be negligent. It was thus for the jury, not the court, to determine whether a duty was imposed on the City and W.N.G.

The defendants argue that the duty of the City and W.N.G. here is limited only to those persons using the street in a proper manner and that Hansen was violating the law by "jaywalking." The violation of the statute and ordinance was relevant to the issue of contributory negligence and proximate cause, upon which the jury was properly instructed, but not to the primary negligence of the defendants.

The City and W.N.G. rely on the holding of Nelson v. Tacoma, 19 Wash.App. 807, 577 P.2d 986 (1978) as dispositive of the issue in this case. The court there observed at 811, 577 P.2d at 988:

There was no showing that the street was unsafe for vehicular travel . . . Plaintiff in this case made no showing that the corner crosswalk was unsafe for pedestrian travel. It is irrelevant, because plaintiff didn't slip on the crosswalk or claim he crossed mid-block because of the condition of the crosswalk. Nor did the plaintiff slip on the street parallel to the sidewalk approaching the crosswalk . . ..

Plaintiff was jaywalking. In effect he selected and created his own crosswalk mid-block, and insists the city should have made it safe for him. To permit him to recover on the basis that the city was negligent would require us to hold that the city must maintain the full block of a street safe for pedestrian cross travel when the sidewalk, or even a portion thereof, is blocked. This we will not do. At the maximum, plaintiff would have had to walk no more than one-half block to reach a crosswalk. There is no allegation or suggestion that the area in the street adjacent to the sidewalk was not reasonably safe. Plaintiff did not slip on such adjacent area, but rather in the street normally used only for vehicular traffic as he was crossing it.

Nelson was decided on a motion for summary judgment. The only defect in the street claimed was a natural accumulation of snow on the streets and sidewalk which the plaintiff contended should have been removed for his benefit. Here, both sides of the street were disrupted by the construction work, and there was evidence that although the barricade was in the middle of the block, it was foreseeable that a party may walk there. In Nelson, no evidence was tendered relating to the foreseeability of...