Kill v. City of Seattle

• Decision Date: 25 August 2014
• Docket Number: 70767-1-I
• Court: Washington Court of Appeals
• Parties: TWYLA KILL and TERRY KILL, individually and the marital community comprised thereof, Appellants, v. CITY OF SEATTLE, a Washington municipal corporation, Respondent.

TWYLA KILL and TERRY KILL, individually and the marital community comprised thereof, Appellants,
v.
CITY OF SEATTLE, a Washington municipal corporation, Respondent.

No. 70767-1-I

Court of Appeals of Washington, Division 1

August 25, 2014

UNPUBLISHED OPINION

APPELWICK, J.

Kill slipped and fell on a wet, smooth metal rim of a utility cover in a downtown Seattle sidewalk. She sued the City, alleging that the utility cover rim was unreasonably dangerous. Kill relied on expert testimony about the slip-resistance of the rim measured by a tribometer. However, the tribometer calibrations fell outside the confidence interval specified by the manufacturer. As a result, the trial court excluded the slip-resistance testimony as unreliable and unhelpful to the jury under ER 702. The trial court held that the expert's remaining testimony was essentially that metal is slippery when wet, which is common knowledge and did not create a genuine issue of fact. The trial court accordingly dismissed on the City's motion for summary judgment. We affirm.

FACTS

On November 13, 2009, Twyla Kill was walking along a sidewalk in downtown Seattle around 1:30 p.m. She recalled that it was raining at the time.^[1] At the corner of Fifth Avenue and Pike Street, Kill slipped on the outer rim of a metal utility cover and fell. Kill was injured as a result. She and her husband sued the city of Seattle (City), alleging that the rim was unreasonably dangerous.

The utility cover—also known as a handhole—is diamond plated and is surrounded by a smooth, two-inch metal rim. The City owns the utility cover and it is in the City right of way. The City did not know when the utility cover was installed, but it was likely "in 1989 (when the Bank Centre building was completed) or before." There were no prior complaints about the specific utility cover or other similar utility cover rims.

Kill hired Joellen Gill as an expert to conduct tests and testify about the condition of the metal rim. To do so, Gill used an English XL Variable Incidence Tribometer, an instrument that measures the coefficient of friction, or "slip-resistance" of a surface. Gill used the tribometer to conduct two slip-resistance tests of the utility cover rim: the first in February 2011 and the second in June 2013.

Different standards for tribometer validation and calibration were in effect at the time of each of Gill's field tests. Prior to September 2006, the American Society for Testing and Material (ASTM) F1679 standard provided instructions for how to use a tribometer. However, the ASTM withdrew the F1679 standard in September 2006 and did not adopt a new standard for five years.

In March 2011, the current standard for tribometer validation and calibration, ASTM F2508, went into effect. ASTM F2508 states that "[v]alidation shall be performed by walkway tribometer suppliers or independent testing facilities]." It defines "supplier" as "any individual, agent, company, manufacturer, or organization responsible for the walkway tribometer prior to receipt by the user." Thus, an individual user cannot validate a tribometer.

Under ASTM F2508, a tribometer must satisfy two criteria to be validated: (1) it must rank the coefficient of friction for each of four reference surface tiles in the correct order; and (2) it must produce statistically significant results, using the mean and standard deviation, for all adjacently ranked surface tiles. ASTM F2508 at § 9. If the tribometer does not satisfy these criteria, then it fails validation. Id. at § 9.3. The manufacturer must then create a validation report specifying the 95th percentile confidence interval for each reference surface tile. Id at § 10.1.

ASTM F2508 also requires individual users to perform calibration of their tribometer to ensure valid test results. Id. at § 4.5, 13.2. The tribometrist must measure each of the four reference surface tiles and compare the results to the 95th percentile confidence interval specified in the manufacturer's validation report, id at § 13.2. If the results for each tile do not fall within the confidence interval, then the tribometer fails calibration, Id at § 13.3.

Therefore, ASTM F2508 ensures tribometer reliability with two safeguards. First, manufacturers or independent testers must validate the tribometer. Second, individual users must calibrate their tribometer to ensure their measurements fall within the confidence interval set forth in the validation report. If the tribometer fails either calibration or validation, then it fails to comply with ASTM F2508.

On February 24, 2011, just before the adoption of ASTM F2508, Gill tested the metal rim of the utility cover. She explained that the manufacturer calibrated her tribometer in January 2011. Gill found that the rim's coefficient of friction when wet was 0.35 (± 0.02). Gill opined that 0.35 is very slippery and not reasonably safe for pedestrian use. She stated that the "generally accepted standard is that 0.5 is the established minimum value for the coefficient of friction for a reasonably safe horizontal walking surface."

The coefficient of friction scale ranges from 0.0 to 1.0. In 2011, the City adopted a 0.5 coefficient of friction standard for new utility covers. Prior to that, the City did not have a standard in place.

On June 2, 2013, Gill conducted a second test of the metal rim. In an effort to recreate the wet conditions when Kill slipped, Gill poured water on the rim. Gill found that the coefficient of friction was 0.21 (± 0.02). Explaining the different results (0.35 versus 0.21), Kill stated that Gill explained "there must be some surface contaminant of some kind that was on the rim as tested that resulted in the lower figure the second time around."

The day before Gill's second test, she calibrated her tribometer and created what she called a "Report of ASTM F2508 Validation" of the English XL tribometer. She used the four reference tiles—granite, porcelain, vinyl, and ceramic—sent from ASTM. Her test results showed the coefficient of friction for each tile as: 0.0700 for granite, 0.1013 for porcelain, 0.1727 for vinyl, and 0.8505 for ceramic. However, the manufacturer's validation report for Gill's tribometer specifies the 95th percentile confidence intervals as: 0.078-0.082 for granite, 0.132-0.137 for porcelain, 0.173-0.180 for vinyl, and 0.605-0.616 for ceramic. None of Gill's calibration results fall within these intervals.

On the parties' cross motions for summary judgment, the trial court held Gill's methodology for slip-resistance testing to be unreliable and therefore unhelpful to the jury under ER 702. The court believed Gill was qualified as an expert. However, the court explained that Gill's tribometer was not properly calibrated when she tested the utility cover rim. Furthermore, the court reasoned, Gill's two tests of the rim produced different results. It concluded that Gill did not provide an adequate explanation for this difference. "Either Ms. Gill's tribometer is inherently unreliable or the way she used it was inherently unreliable." And, the court held that Gill failed to account for how the presence or absence of surface contaminants may have affected her test results.

As a result, the court excluded Gill's test results and her opinion that the rim was unreasonably slippery. Without Gill's testimony,

[T]he Court does not believe that plaintiff has any evidence to support her contention that that rim, that two-inch rim was so inherently dangerous that the City does not need to be on notice of its dangerous condition, and because there's no other evidence that the City was on notice of its dangerous condition

The court therefore held that Kill failed to demonstrate an issue of fact. It granted the City's motion for summary judgment and dismissed all claims against the City with prejudice.

After the trial court's ruling, Gill sent her tribometer to the manufacturer (Excel Tribometers LLC) for additional testing. Using Gill's tribometer and its own reference tiles, Excel produced the following calibration results: 0.066 for granite, 0.116 for porcelain, 0.165 for vinyl, and 0.576 for ceramic. Like Gill's original calibration, these results are outside the 95th percentile confidence interval in the validation report.

Excel also conducted a calibration test using its own tribometer and Gill's reference tiles. These results were: 0.080 for granite, 0.100 for porcelain, 0.149 for vinyl, and 0.641 for ceramic. Except for the granite tile, these results are also outside the 95th percentile confidence interval and all substantially different than Gill's calibration results for the same tiles. Excel also determined that the coefficient of friction for Gill's ceramic reference tile varied widely from quadrant to quadrant, ranging from 0.645 in the southeast quadrant to 0.840 in the southwest quadrant. Based its testing, Excel asserted an additional margin of error of ± 0.03 for slip resistance values equal to or less than 0.50 and ± 0.05 for slip resistance values greater than 0.50. Therefore, Excel believed that Gill's tribometer satisfied the ASTM F2508 calibration requirements.

In a motion for reconsideration, Kill stated:

The differences in the results which concerned the Court are not caused by an uncalibrated tribometer, but individual and internal variations in the ceramic references tiles ASTM sells to manufacturers like Excel (and individual tribometrists) for ASTM F2508 validation/calibration and the fact that ASTM F2508's testing protocols do not at this time account for such variations

Kill explained that ASTM F2508 assumes the tiles' surfaces are not variable, even though different tiles are used for validation and calibration. She argued that the difference between the validation report and Gill's calibration was attributable to this variation in tiles.

Kill also requested a Frye hearing on the...