Rivett v. City of Tacoma
| Decision Date | 17 March 1994 |
| Docket Number | No. 60773-7,60773-7 |
| Citation | 870 P.2d 299,123 Wn.2d 573 |
| Court | Washington Supreme Court |
| Parties | Helen RIVETT, Plaintiff, v. The CITY OF TACOMA, Appellant, Joseph GUNDERMANN, Jr. and Jane Doe Gundermann, Respondents. |
William J. Barker, Tacoma City Atty., John C. Kouklis, Chief Asst., Leah L. Clifford, Asst., Tacoma, for appellant.
Burgess, Fitzer, Leighton & Phillips, P.S., Timothy R. Gosselin, Tacoma, for respondents.
The City of Tacoma appeals from orders of the Pierce County Superior Court granting summary judgment to Joseph Gundermann, Jr. and "Jane Doe" Gundermann, which declared Tacoma Municipal Code (TMC) 9.17.010 facially unconstitutional as an unreasonable exercise of the City's police powers and dismissed the cross-claim of the City against the Gundermanns. We accepted certification from the Court of Appeals, Division Two. We affirm the Superior Court.
Plaintiff in the trial court, Ms. Helen Rivett (not a party to this appeal), claimed that on June 24, 1988, she was walking on a sidewalk at 920 South 8th Street in Tacoma and tripped over a 1- to 2-inch rise in the sidewalk when she fell and fractured the humerus in her left arm and sustained other injuries. 1 On that date Mr. and Mrs. Joseph Gundermann, Jr. owned, but did not live in, a house at the 8th Street address. They were residents of New York. There has been no change in this circumstance. 2
On June 7, 1990, Ms. Rivett filed with the Tacoma City Clerk a claim for damages against the City of Tacoma (City) for her injuries. This was the first notice the City received of the accident or of any defect in the sidewalk. 3 The City inspected the sidewalk and confirmed a 1 3/4-inch rise at an expansion joint on the sidewalk at 920 South 8th Street. 4
On December 12, 1990, Ms. Rivett filed in the Pierce County Superior Court a complaint for damages for the injuries she sustained on June 24, 1988 against the City of Tacoma and Joseph Gundermann, Jr. and "Jane Doe" Gundermann (Gundermanns) alleging negligence in maintenance of the sidewalk. She claimed the Gundermanns "had a duty to maintain the sidewalk, upon which their property abutted, in a safe condition, free of hazardous conditions pursuant to Tacoma City Ordinance 9.17.010." 5 The City denied negligence and cross-claimed against the Gundermanns. It claimed the Gundermanns owed the City a duty of maintenance under TMC 9.17.010 and that it was entitled to indemnification from them under TMC 9.17.020 for any compensation Ms. Rivett might obtain from the City as a result of the suit. 6
The Gundermanns' answer to Ms. Rivett is not in the record. However, they moved for summary judgment against her complaint, stating that TMC 9.17.010 does not provide a "private cause of action". On November 21, 1991, all parties stipulated to partial summary judgment in favor of the Gundermanns. The Honorable Arthur W. Verharen, Pierce County Superior Court, granted partial summary judgment dismissing all claims made by Ms. Rivett against the Gundermanns. 7
The Gundermanns answered the City's cross-claim by denying all its allegations and asserting that the cross-claim failed to state a claim upon which relief could be granted. 8 They also filed a motion for summary judgment against the City, claiming TMC 9.17.020 is unconstitutional because (1) it is an unauthorized tax which is not levied equally or uniformly; (2) it is void as an unreasonable exercise of the police power; (3) it is "void for vagueness as it describes the penalty which is without limitation and has no basis for calculation"; and (4) it "does not provide procedural due process to the abutting landowner."
On January 10, 1992 and on January 24, 1992, the trial court granted summary judgment in favor of the Gundermanns against the City and dismissed the City's claims against them with prejudice. 9 However, the orders do not indicate the basis for the court's determination. At the January 10, 1992 hearing the attorney for the City asked the court for clarification. The court observed that if the statute is a tax, then it is unconstitutional; but that if it is not a tax, then it is an unreasonable exercise of the police power. Although the court stated it was "satisfied that there is no issue as to any material fact in this cause that would stand in the way of the court entering judgment," it made no findings of fact in its oral ruling or in the written order. 10
The questions presented by this case are (1) whether a City of Tacoma ordinance, TMC 9.17.010 and .020, which purports to impose liability upon abutting private property owners for the condition of public sidewalks and purports to indemnify the City for any judgments arising out of negligent maintenance of public sidewalks, is constitutional; and (2) whether summary judgment was properly granted in favor of abutting private property owners in this action for personal injuries sustained by a third party from a negligently maintained public sidewalk.
This case is an appeal from an order on summary judgment. In reviewing such an order, this court engages in the same inquiry as the trial court. Since the relevant facts are undisputed and the trial court's decision involved only questions of law, our review is de novo. 11
The parties here do not dispute existence of the 1 3/4-inch "stub-toe" elevation on the sidewalk at 920 South 8th Street in Tacoma. 12 They agree that the Gundermanns are not primarily liable to Ms. Rivett for injuries she suffered because of the defective sidewalk, since the Gundermanns did not directly cause the damage to the sidewalk and because TMC 9.17.010 does not create a private cause of action. 13
It is clear that the City under its police powers may regulate the use of its sidewalks and declare, abate and fine nuisances. 14 It is also clear that cities are legally responsible for the physical condition of public sidewalks, 15 and that an abutting property owner is not legally responsible for the physical condition of a public sidewalk unless that property owner causes or contributes to the condition. 16 The Legislature has also abolished governmental immunity for cities by providing that cities are liable for their tortious conduct to the same extent as private persons or corporations. 17
In 1967 the Tacoma City Council enacted ordinance 18361, which is codified as Tacoma Municipal Code 9.17.010 and .020. The ordinance, including the preamble, states in relevant part:
AN ORDINANCE relating to public ways and amending Title 9 of the Official Code of the City of Tacoma by adding a new Chapter 9.17 consisting of two new Sections, 9.17.010 and 9.17.020.
....
9.17.010 STREET RIGHT OF WAY--ABUTTOR'S DUTY. It shall be unlawful for the owner and/or any person, firm, or corporation occupying or having charge or control of any 1. Defective sidewalk surfaces, including, but not limited to, broken cement or stub-toes and depressions within or between sidewalk joints;
premises abutting upon any street, alley, or other public right of way within the City of Tacoma to construct, place, cause, create, maintain or permit to remain upon any part of said right of way lying between the curb line ... and the abutting property line, any thing, structure or condition dangerous or hazardous to the use of said public right of way by the public, including but not limited to the following:
....
9.17.020 LIABILITY OF ABUTTOR. Whenever any injury or damage to any person or property shall be proximately caused by any of the dangerous, defective, or hazardous conditions prohibited by the provisions of Section 9.17.010 above, the abutting property where the injury or damage occurs, and the owner ... of said abutting property, shall be liable to the City for all damages or injuries, costs and disbursements which the City may be required to pay to the person injured or damaged; provided, however, that where the dangerous, defective or hazardous condition was caused, created or constructed by the City of Tacoma or its employees, no liability shall attach to the abuttor by reason thereof; provided further, that except in those cases where the abutting property owner ... of said abutting property shall have caused, created, or contributed to the dangerous, defective or hazardous condition, the said abutting property owner ... of said abutting property shall not be liable to the City if, prior to the date of injury, a notice in writing was given to the Director of Public Works or his authorized representative setting forth the nature and location of the defect and a statement that the defect was not created by, caused by, or contributed to by the abutting owner ... of said abutting property.
(Italics ours.)
The Gundermanns claim TMC 9.17.020 is unconstitutional because it violates substantive due process as an unreasonable exercise of the police power, constitutes a tax which is not uniform, and violates procedural due process. The same ordinance was challenged on...
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