Keller v. City of Spokane

Decision Date25 April 2002
Docket NumberNo. 70866-5.,70866-5.
Citation146 Wn.2d 237,44 P.3d 845,146 Wash.2d 237
CourtWashington Supreme Court
PartiesJean KELLER, as general guardian of Casey Keller, an incompetent, Respondent, v. CITY OF SPOKANE, a municipal corporation, Petitioner, Walter Balinski and Hazel Balinski, husband and wife, Defendants.

Bryan Harnetiaux, Harbaugh & Bloom, Gary Neil Bloom, Debra Stephens, Spokane, Amicus Curiae on Behalf of Washington State Trial Lawyers Association.

Keating, Bucklin & McCormack, Andrew George Cooley, Seattle, Amicus Curiae on Behalf of Washington Defense Trial Lawyers.

Alexander, Bierman, I. Richard Lassman, Seattle, for Defendant.

Milton G. Rowland, James Anthony Richman, Asst. Spokane City Attorneys, Spokane, for Petitioner.

Roger A. Felice, Dawson & Meade, Edward A. Dawson, Spokane, for Respondent.


In this negligence action, the City of Spokane (City) seeks reversal of a Court of Appeals decision in favor of Jean Keller, as general guardian for Casey Keller. We hold that the trial court's instruction to the jury as to the City's duty to maintain its roadways was misleading and legally erroneous because it allowed the jury to conclude that the City owed Keller no duty if it found that Keller had acted negligently.


The accident at issue in this case occurred at the intersection of Freya and Wellesley Avenue in Spokane. Traffic on Freya runs north/south and has a stop sign at the intersection with Wellesley, which runs east/west. However, there was no stop sign on Wellesley at the time of the accident. The speed limit on Wellesley is 30 miles per hour.

On Monday, June 19, 1989, Walter Balinski, who was driving his automobile southbound on Freya, stopped at the stop sign at the Freya/Wellesley intersection. Casey Keller drove his motorcycle westbound on Wellesley. Testimony indicated that Keller approached the intersection at speeds which may have been as low as 30 miles per hour or as high as 80 miles per hour. Balinski looked briefly to the left, but then focused his attention to his right and straight ahead before driving through the intersection. Balinski testified that his view to the left, the direction from which Keller was approaching, was unobscured for at least 300 feet.1 As Balinski drove through the intersection, Keller crashed into his car. Keller suffered severe injuries.

Keller sued both Balinski and the City for negligence. Specifically, Keller alleged that the Freya/Wellesley intersection was dangerous, that the City was aware of the danger and had acted negligently in not adding stop signs to Wellesley, so as to render the intersection a four-way stop. The City denied the allegations. At trial, Keller presented evidence that the intersection was dangerous and that many accidents had occurred there. City traffic engineers testified that the intersection was dangerous and that a four-way stop was necessary. Keller also presented evidence that citizens complained to the City about the intersection and had petitioned the City for a stop light or four-way stop sign prior to the accident. Keller also established that both the national guidelines found in the Manual on Uniform Traffic Control Devices (MUTCD) and the City's own internal standards suggested the need for a four-way stop at the intersection. Finally Keller showed that the average speed through the intersection was 40 to 50 miles per hour and argued that that in itself suggested the need for a four-way stop.

The City conceded that the intersection had problems and that the traffic engineers had watched it for some time. The City argued, however, that the MUTCD guidelines were permissive, that the intersection was safe for ordinary travel, that it had adequate to excellent visibility, and that traffic was light at the time of the accident. The City also presented evidence that Keller was not wearing eye protection, his headlights were not on, and that his speed was excessive. The City invited the jury to find that the collision was avoidable but for Keller's speed.

The trial court instructed the jury that:

A city has a duty to exercise ordinary care in the signing and maintaining of its public streets to keep them in a condition that is reasonably safe for ordinary travel by persons using them in a proper manner and exercising ordinary care for their own safety.[2]
It is the duty of the city to eliminate an inherently dangerous condition, if one exists, and its existence is known, or should have been known to the city in the exercise of reasonable care.
Inherently dangerous, as used herein, means a danger existing at all times so as to require special precautions to prevent injury.

Instruction 13.3

Keller took exception to this instruction and asked the court to instruct the jury that the City's duty and breach are to be determined independent of the plaintiff's negligence. The court refused, stating that that was not the law. The jury returned a special verdict finding that both Keller and Balinski had acted negligently, but that the City had not. It further found that Keller was 60 percent at fault and that Balinski was 40 percent at fault. Keller appealed the jury verdict as to the finding that the City was not negligent.

The Court of Appeals, Division Three, reversed and remanded for a new trial.4 The court held that instruction 13 erroneously allowed the jury to determine that the City had no duty at all if it found that Keller was negligent and that it failed to instruct the jury as to the City's duty of ordinary care to provide safe streets.5 The court rejected the City's contention that it owed no duty unless the plaintiff is fault-free, holding that the City had a duty of ordinary care to maintain reasonably safe streets for the traveling public.6 This court granted the City's petition for review.7

II Elements of Negligence Generally

The elements of negligence are duty, breach, causation, and injury. Hartley v. State, 103 Wash.2d 768, 777, 698 P.2d 77 (1985). Since the Washington State Legislature waived sovereign immunity for municipalities in 1967, Laws of 1967, ch. 164, § 1, amended by Laws of 2001, ch. 119, § 1 (codified at RCW 4.96.010),8 municipalities are generally held to the same negligence standards as private parties. Bodin v. City of Stanwood, 130 Wash.2d 726, 731, 927 P.2d 240 (1996).9

A party may maintain an action against a municipality if a duty can be shown. Meaney v. Dodd, 111 Wash.2d 174, 179, 759 P.2d 455 (1988). The municipality, as an individual, is held to a general duty of care, that of a "reasonable person under the circumstances." DAN B. DOBBS, THE LAW OF TORTS § 228, at 580 (2000). Whether a municipality owes a duty in a particular situation is a question of law, Hansen v. Friend, 118 Wash.2d 476, 479, 824 P.2d 483 (1992), and generally includes a determination of whether the incident that occurred was foreseeable. DOBBS, supra, § 229, at 582-83; King v. City of Seattle, 84 Wash.2d 239, 248, 525 P.2d 228 (1974) (holding that "foreseeability of the risk of harm to the plaintiff is an element of the duty question"); Berglund v. Spokane County, 4 Wash.2d 309, 321, 103 P.2d 355 (1940) (stating that whether county owed duty to negligent driver was one of foreseeability).

In a negligence action, in determining whether a duty is owed to the plaintiff, a court must not only decide who owes the duty, but also to whom the duty is owed, and what is the nature of the duty owed. Wick v. Clark County, 86 Wash.App. 376, 385, 936 P.2d 1201 (1997) (Morgan, J., concurring). The answer to the second question defines the class protected by the duty and the answer to the third question defines the standard of care. Id. at 386, 936 P.2d 1201. The class protected generally includes anyone foreseeably harmed by the defendant's conduct regardless of that person's own fault. Friend, 118 Wash.2d at 484, 824 P.2d 483.

Finally, the Legislature adopted the doctrine of comparative fault in 1981. Laws of 1981, ch. 27, § 8 (codified at RCW 4.22.005). RCW 4.22.005 states in part:

In an action based on fault seeking to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery.

We have previously held that the adoption of comparative fault did not create or enhance a defendant's prior common law duty. Hansen v. Wash. Natural Gas Co., 95 Wash.2d 773, 778, 632 P.2d 504 (1981). "Rather, recovery is now permitted where it was previously denied after liability has been established." Id.

Common Law Scope of Municipal Duty

Keller and the amicus curiae Washington State Trial Lawyers Association Foundation (WSTLA Foundation) argue that the language in instruction 13, "by persons using them in a proper manner and exercising ordinary care for their own safety," improperly limits a municipality's duty to only fault-free plaintiffs. The City and the amicus curiae Washington Defense Trial Lawyers (WDTL) assert that the instruction is a correct statement of a municipality's duty under Washington law and that prior decisions make it clear that this duty is limited. Pet. for Review at 10-15; Br. of Amicus WDTL at 3-5. Keller and WSTLA Foundation respond that Washington's common law on municipal duty is confusing and erratic. Suppl. Br. of Resp't at 5; Br. of Amicus Curiae WSTLA Foundation at 9. Therefore, as a threshold matter, we must first determine the proper scope of a municipality's duty in building and maintaining its roadways before reaching the ultimate question of whether instruction 13 was proper.

The City relies on Hansen to support its position that instruction 13 provided a correct statement of a municipality's duty. Pet. for Review at 11. In Hansen, this court evaluated whether the trial court had erred in granting judgment notwithstanding...

To continue reading

Request your trial
277 cases
  • City of Seattle v. Monsanto Co.
    • United States
    • U.S. District Court — Western District of Washington
    • May 3, 2019
    ...situation ... generally includes a determination of whether the incident that occurred was foreseeable." Keller v. City of Spokane, 146 Wash. 2d 237, 243, 44 P.3d 845 (2002) (internal citations omitted). The individuals to whom the duty is owed "generally include[ ] anyone foreseeably harme......
  • Pointe at Westport Harbor Homeowners' Ass'n v. Eng'rs Nw., Inc.
    • United States
    • Washington Court of Appeals
    • May 3, 2016
    ...Giving an improper instruction is grounds for reversal, unless the instruction did not prejudice a party. Keller v. City of Spokane, 146 Wash.2d 237, 249, 44 P.3d 845 (2002). Prejudice is presumed if an instruction clearly misstates the applicable law. Id. at 249–50, 44 P.3d 845. We review ......
  • Thompson v. King Feed & Nutrition Service, Inc.
    • United States
    • Washington Supreme Court
    • January 20, 2005
    ...jury of the law to be applied. Id. A clear misstatement of the law, however, is presumed to be prejudicial. Keller v. City of Spokane, 146 Wash.2d 237, 249-50, 44 P.3d 845 (2002). King Feed contends that the Court of Appeals' affirmation of instruction 8 is "an erroneous statement of the ap......
  • Fergen v. Sestero
    • United States
    • Washington Supreme Court
    • March 12, 2015
    ...and when read as a whole, properly inform the trier of fact of the applicable law. Id. at 758, 172 P.3d 712 ; Keller v. City of Spokane, 146 Wash.2d 237, 249, 44 P.3d 845 (2002) ; Anfinson v. FedEx Ground Package Sys., Inc., 174 Wash.2d 851, 860, 281 P.3d 289 (2012). ¶ 15 Legal errors in ju......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT