Keller v. City of Spokane, 17744-1-III.

Citation104 Wash.App. 545,17 P.3d 661
Decision Date01 February 2001
Docket NumberNo. 17744-1-III.,17744-1-III.
CourtCourt of Appeals of Washington
PartiesJean KELLER as General Guardian of Casey Keller, an incompetent, Appellant, v. CITY OF SPOKANE, a municipal corporation; Walter Balinski and Hazel Balinski, husband and wife, Respondents.

Roger A. Felice, Roger A. Felice P.S., Edward A. Dawson, Dawson & Meade, Spokane, for Appellant.

Milton G. Rowland, James A. Richman, Asst. City Attys., Spokane, I. Richard Lassman, Seattle, for Respondents.


This is an intersection accident case. Casey Keller's motorcycle collided with Walter Balinski's car when Mr. Balinski failed to cede the right of way at an intersection controlled by two-way stop signs. The trial judge instructed the jury that the City of Spokane had a duty to maintain its streets in a condition reasonably safe for persons using them in a proper manner and exercising ordinary care for their own safety. The instruction accurately recites 6 WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 140.01, at 136 (3d ed. Supp.1994) (WPI). The question presented is whether the trial court erred by limiting the City's obligation to maintain safe streets to "people exercising ordinary care for their own safety." We conclude that it did and reverse and remand for a new trial on liability only.


Casey Keller drove his motorcycle westbound on Wellesley Avenue in Spokane. Walter Balinski drove his automobile south on Freya toward the intersection of Wellesley and Freya. Mr. Balinski stopped at the stop sign at Wellesley and Freya. As the favored driver, Mr. Keller approached the intersection at speeds variously estimated at 30 mph to close to 80 mph. The speed limit on Wellesley is 30 mph. Mr. Balinski looked briefly to his left but then focused his attention to his right and straight ahead before driving into the intersection. Mr. Balinski's view to his left, the direction from which Mr. Keller was approaching, was unobscured for 700 feet. The motorcycle crashed into Mr. Balinski's car from the left. Mr. Keller was not wearing a helmet and suffered severe injuries.

Procedure. Mr. Keller sued both Mr. Balinski and the City of Spokane and alleged negligence. The City generally denied the allegations and affirmatively alleged sovereign immunity. The City moved for summary dismissal on the grounds that its only duty was to the public, not to Mr. Keller. It also argued that the decision not to install a four-way stop was an exercise of its legislative discretion and therefore not subject to judicial review. The trial court agreed and dismissed the case. We reversed and held that neither governmental immunity nor the public duty doctrine relieved the City of liability. Both defendants also alleged that Mr. Keller's injuries were caused by his failure to wear a helmet. The trial court dismissed this defense on Mr. Keller's motion. And we affirmed that part of the judgment. Keller v. City of Spokane, Nos. 14170-5-III, 14353-8-III, 1996 WL 460256 (Wash.Ct.App. Aug.15, 1996), review denied, 131 Wash.2d 1017, 936 P.2d 417 (1997).

Trial. Mr. Keller showed that the intersection was dangerous and caused lots of accidents. City traffic engineers testified the intersection was dangerous, and that a four-way stop was necessary. Citizens complained and petitioned the City for a stoplight or sign. The intersection handled a high traffic volume. And Mr. Keller showed 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. Mr. Keller showed that an average speed of 40 to 50 mph was usual and argued that this in itself suggested the need for a stop.

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

Jury Instructions. The 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.1
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 No. 13, Clerk's Papers at 609.

Mr. Keller asked the court to instruct that the City's duty and breach are determined independently of the plaintiff's negligence. The court refused.

The jury returned a special verdict that the City was not negligent. It found Mr. Keller 60 percent at fault and Mr. Balinski 40 percent at fault.


Mr. Keller takes issue with the language of the first paragraph of Instruction No.13 limiting the City's duty to persons using [the streets] in a proper manner and exercising ordinary care for their own safety. He contends this language limits the City's duty to those who are without fault. And in so doing, the instruction resurrects the discarded doctrine of contributory negligence as an absolute bar to recovery. He says the effect of this instruction is to require plaintiffs alleging municipal negligence to prove their own lack of fault as a prerequisite to establishing that the city owed them a duty of ordinary care.

The City concedes that orthodox principles of duty and breach and comparative negligence apply to municipalities. It nevertheless contends that Mr. Keller's negligence claim fails as a matter of law: it owed Mr. Keller no duty because he was speeding. The City further argues that this limitation on the scope of municipal duty reflects a policy decision articulated by the Supreme Court in Hansen v. Washington Natural Gas Co.2

We reject the City's application of Hansen to these facts and decide (1) that the jury instructions as a whole failed to instruct the jury as to the City's duty of ordinary care to provide safe streets, and (2) that Instruction No. 13 erroneously excludes contributorily negligent drivers from the class of persons to whom cities owe the duty of ordinary care.

Standard of Review. We review jury instructions de novo. Hall v. Sacred Heart Med. Ctr., 100 Wash.App. 53, 61, 995 P.2d 621, review denied, 141 Wash.2d 1022, 10 P.3d 1073 (2000). An erroneous statement of the applicable law is reversible error if it prejudices a party. Robertson v. State Liquor Control Bd., 102 Wash.App. 848, 860, 10 P.3d 1079 (2000) (citing Hue v. Farmboy Spray Co., 127 Wash.2d 67, 92, 896 P.2d 682 (1995)).


We first address the City's contention that no duty is owed unless the plaintiff is fault free.

Ordinary Negligence. It is well established that municipalities are subject to the same fundamental negligence principles as any other citizen. RCW 4.96.010(1); Ruff v. County of King, 72 Wash.App. 289, 294, 865 P.2d 5 (1993), rev'd on other grounds, 125 Wash.2d 697, 887 P.2d 886 (1995). The elements of negligence are (1) the existence of a duty owed by the defendant to the plaintiff, (2) breach of that duty, and (3) injury to plaintiff, (4) proximately caused by the breach. Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999). The law permits a cause of action in tort against a municipality if a duty can be established, just the same as with a private person. RCW 4.96.010; Meaney v. Dodd, 111 Wash.2d 174, 179, 759 P.2d 455 (1988). The plaintiff must establish a breach of duty and resultant damages whether the defendant is a person or a municipality. A municipality's tortious conduct is treated the same as that of a private citizen. Meaney, 111 Wash.2d at 179, 759 P.2d 455.

We have a propensity to confuse our function with that of the jury when setting the limits of a defendant's liability for negligence. Hartley v. State, 103 Wash.2d 768, 781, 698 P.2d 77 (1985). A contributing factor is the fact that duty and proximate cause are often intertwined and linked to policy considerations, an approach that is often helpful. Id. at 779, 698 P.2d 77. However, in cases such as the one before us, meaningful analysis requires a clear distinction between two senses in which the word "duty" is used.

Primary Duty. The threshold determination is primary "duty": Does the defendant owe any duty of care to the plaintiff? This determination includes the existence and the nature of the duty. This is always a question of law. Schooley v. Pinch's Deli Market, Inc., 134 Wash.2d 468, 475, 951 P.2d 749 (1998); McKenna v. Edwards, 65 Wash. App. 905, 912, 830 P.2d 385 (1992). And it is, therefore, determined by the court, not a jury. Hertog, 138 Wash.2d at 275, 979 P.2d 400.

Primary Duty is Owed to the Traveling Public. The legal determination of primary care includes the question of whether the plaintiff is a member of the class of persons to whom that duty is owed. This is also a question of law. Pinch's Deli, 134 Wash.2d at 475 n. 3, 951 P.2d 749 (statutory duty). A city's duty of ordinary care to maintain reasonably safe streets extends as a matter of law to the traveling public. Bradshaw v. City of Seattle, 43 Wash.2d 766, 773, 264 P.2d 265, 42 A.L.R.2d 800 (1953); Wojcik v. Chrysler Corp., 50 Wash.App. 849, 857-58, 751 P.2d 854 (1988); Raybell v. State, 6 Wash.App. 795, 496 P.2d 559 (1972).

Proximate Cause. Once primary duty is established as a matter of law, the remaining elements—breach, proximate...

To continue reading

Request your trial
7 cases
  • Keller v. City of Spokane
    • United States
    • Washington Supreme Court
    • April 25, 2002
    ...430, 891 P.2d 46, Walker, 67 Wash.App. at 617, 837 P.2d 1023 and McKee, 54 Wash.App. at 267-68, 773 P.2d 434, with Keller, 104 Wash.App. at 554-55, 17 P.3d 661, Wojcik v. Chrysler Corp., 50 Wash.App. 849, 854, 751 P.2d 854 (1988) (holding that "[a] county has a duty to maintain its highways......
  • Hough v. Ballard, 25411-5-II.
    • United States
    • Washington Court of Appeals
    • August 31, 2001 error is assigned to the amount of damages, we remand for retrial on the issue of liability only." Keller v. City of Spokane, et al., 104 Wash.App. 545, 17 P.3d 661, 668 (2001). Therefore, we reverse the trial court's grant of partial summary judgment as to liability and remand for findi......
  • Blaney v. International Ass'n of Machinists
    • United States
    • Washington Supreme Court
    • April 1, 2004
    ...was no error or the error was harmless. Alleged errors of law in jury instructions are reviewed de novo. Keller v. City of Spokane, 104 Wash.App. 545, 551, 17 P.3d 661 (2001), aff'd, 146 Wash.2d 237, 44 P.3d 845 (2002). Jury instructions are proper when they permit the parties to argue thei......
  • Hadley v. Maxwell
    • United States
    • Washington Supreme Court
    • July 26, 2001
    ...France v. Peck, 71 Wash.2d 592, 599, 430 P.2d 513 (1967) (ordering new trial on liability but not damages); Keller v. City of Spokane, 104 Wash.App. 545, 17 P.3d 661 (2001) ALEXANDER, C.J., SMITH, JOHNSON, MADSEN, IRELAND, BRIDGE, OWENS, JJ., and HUNT, J.P.T., concur. 1. Respondents argued ......
  • 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