Hansen v. Washington Natural Gas Co.

• Decision Date: 09 July 1981
• Docket Number: No. 47325-1,47325-1
• Citation: 632 P.2d 504,95 Wn.2d 773
• Parties: Gudrun Emma HANSEN, Respondent, v. WASHINGTON NATURAL GAS COMPANY and the City of Seattle, Petitioners.
• Court: Washington Supreme Court

Page 773

95 Wn.2d 773

632 P.2d 504

Gudrun Emma HANSEN, Respondent, v. WASHINGTON NATURAL GAS COMPANY and the City of Seattle, Petitioners.

No. 47325-1.

Supreme Court of Washington, En Banc.

July 9, 1981.

Lee, Smart, Cook & Martin, P.S., John P. Cook, Seattle, for petitioners.

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

DOLLIVER, Justice.

Enroute to work in Seattle on the morning of October 6, 1977, plaintiff Gudrun E. Hansen, heading west on Emerson Street, jaywalked diagonally across Emerson Street to catch her bus. The south side of Emerson from which Mrs. Hansen embarked on her jaywalking is paralleled by a sidewalk. This sidewalk goes to the next intersection, Magnolia Boulevard. The bus stop is on the north side of Emerson Street, very near to the intersection of Magnolia at Emerson. While in the street plaintiff slipped on a plank placed there by defendant Washington Natural Gas Company to cover an excavation. The covered excavation was located toward the middle of Emerson Street between West Viewmont Way and Magnolia Boulevard. There is a grassy path but no sidewalk on the north side of Emerson. A pile of earth from the excavation, directly to the north, blocked the path.

Barricades had been placed in various locations surrounding the area. Additionally, a truck of defendant Gas Company was parked on Emerson Street with the appropriate warning devices. As a result of this accident, plaintiff sustained serious injuries. The jury found total damages for plaintiff of $50,000 but reduced the award to $20,000, finding plaintiff was contributorially negligent. The trial court granted a judgment notwithstanding the verdict. The Court of Appeals reversed and remanded for the reinstatement of the jury verdict. Hansen v. Washington Natural Gas Co., 27 Wash.App. 127, 615 P.2d 1351 (1980).

Plaintiff's theory was that the defendants had both a common law duty to protect her from harm suffered in this manner, and a statutory duty (based on City ordinances) to provide adequate warnings of the allegedly dangerous condition.

Negligence in common law consists of (1) the existence of a duty owed to the complaining party; (2) a breach thereof; (3) a resulting injury; and (4) a proximate cause between the claimed breach and resulting injury. LaPlante v. State, 85 Wash.2d 154, 531 P.2d 299 (1975). In Berglund v. Spokane County, 4 Wash.2d 309, 103 P.2d 355 (1940), the court held that a "municipality ... (is) obligated to exercise ordinary care to keep its public ways in a reasonably safe condition for persons using such ways in a proper manner and exercising due care for their own safety."

The scope of this duty is illustrated in Nelson v. Tacoma, 19 Wash.App. 807, 577 P.2d 986 (1978). There a pedestrian crossed a street in mid-block to reach his parked car. It had been snowing that day and the sidewalks were blocked with snow. As the plaintiff crossed the street, he slipped and fell on the ice. The court refused recovery stating:

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. In reaching this disposition, we need not consider whether a foot of snow on the sidewalk, with no allegation that it was rough, uneven, or icy, rendered the sidewalk impassable, forcing pedestrians into the street.

Nelson, at 811, 577 P.2d 986.

In this case, the defendant Gas Company had covered an excavation located toward the middle of an arterial away from any intersection. Barricades were visible on both sides of the street warning traveling automobiles and pedestrians of construction work. The means of warning utilized by the defendant were reasonable and evinced the exercise of ordinary care. In fact, there was little else the Gas Company could have done except to have placed barricades on or around the covered excavation. This action, however, itself would have created an unsafe road condition for the traveling automobiles or have prevented the use of the street for motor vehicles altogether. There was no reason for the Gas Company to believe that portion of the street would be utilized by pedestrians.

Plaintiff urges us to broaden the scope of common law by extending it to all foreseeable travelers. To support this contention, the plaintiff cites language found in 40 Am.Jur.2d Highways, Streets, and Bridges, § 568 (1968), which reads:

A person desiring to cross a street, either in the nighttime or in the daytime, is not confined to a crosswalk, but may assume that all parts of the street which are intended for travel are reasonably safe, and may therefore cross it at any point without being guilty of negligence as a matter of law.

The cited section, however, refers to the contributory negligence of the person crossing the street. That is not the question here. Rather, it is the negligence of the City of Seattle or the Gas Company. There is, to use the language of instruction 10, simply no evidence of any failure by defendants 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." The Court of Appeals relies on Bartlett v. Northern Pac. Ry. Co., 74 Wash.2d 881, 447 P.2d 735 (1968) (citing Barton v. King County, 18 Wash.2d 573, 576 139 P.2d 1019 (1943)), as establishing a duty to warn. There the court said:

(A) municipality may be chargeable with negligence for failure to maintain warning sings or barriers if the situation along the highway is inherently dangerous or of such character as to mislead a traveler exercising reasonable care.

Bartlett, 74 Wash.2d at 882, 447 P.2d 735.

There is no evidence here either of inherent danger or of the plaintiff being misled. The fact of injury is not, of course, sufficient to prove a dangerous condition. Brant v. Market Basket Stores, Inc., 72 Wash.2d 446, 443 P.2d 863 (1967).

The Court of Appeals further held that the rule expressed in Berglund and Nelson is no longer applicable since the adoption of comparative negligence in this state. This holding is erroneous. The adoption of comparative negligence does not create a new liability where none previously existed. Rather, recovery is now permitted where it was previously denied after liability has been established. Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630 (1975). The doctrine of comparative negligence does not enhance duty. It merely removes the bar to recovery when the plaintiff has been negligent. Prybysz v. Spokane, 24 Wash.App. 452, 601 P.2d 1297 (1979).

In granting the judgment notwithstanding the verdict, the trial court observed:

There is no duty on the part of defendants to make the middle of the street, mid-block, safe for pedestrians who might elect to leave the sidewalk in the middle of the block and angle illegally across the street through a construction area that is open and apparent and is safe for cars.

We agree.

Plaintiff's alternative ground of recovery is that defendants owed her a statutory duty of care which was subsequently breached. We are urged to find a statutory violation by defendants resulting in negligence per se. In particular, plaintiff cites two Seattle ordinances which were allegedly violated. They read in part as follows:

Obstructions in public places during daylight hours shall have sufficient barricades posted in such a manner as to indicate plainly the danger involved.

Seattle City Code 15.40.010.

The City Engineer is authorized to place barricades and warning lights at unguarded or inadequately guarded excavations, obstructions, or other dangerous conditions...

Seattle City Code 15.40.030.

The trial court instructed the jury with regard to these ordinances and told them that the violation of one or both of them was negligence per se. It is plaintiff's theory that the jury could have reasoned that additional signs and barricades at the corner intersection of West Emerson and West Viewmont Way could have been erected. Since they were not, a statutory violation was present and plaintiff should, therefore, recover. The purpose of such a barricade, according to the theory of plaintiff, would be to warn pedestrians not to use the intersection because the grassy path on the north side of Emerson Street was blocked by a pile of earth from the excavation.

Where there is an alleged charge of negligence per se due to a statutory violation, there also must be a causal connection between the negligence arising from the violation of the ordinance and the accident itself before a cause of action arises. France v. Peck, 71 Wash.2d 592, 430 P.2d 513 (1967); Moyer v. Clark, 75 Wash.2d 800, 454 P.2d 374 (1969). " 'Proof of negligence in the air, so to speak, will not do.' " F. Harper & F. James Torts § 18.2 at 1019 (1956). The determination of the causal connection is usually one for the jury. However, when, as here, the facts are undisputed and the inferences therefrom are plain and incapable of reasonable doubt or difference of opinion, it is a question of law for the court. France v. Peck, supra.

From the testimony of plaintiff, it is plain that any additional barricades would have had no effect on the action plaintiff was determined to take. Plaintiff saw what she was getting herself into, yet totally disregarded all visible warnings. Fro...