Xiao Ping Chen v. City of Seattle

• Decision Date: 28 December 2009
• Docket Number: No. 62838-1-I.,62838-1-I.
• Citation: 153 Wn. App. 890,223 P.3d 1230
• Court: Washington Court of Appeals
• Parties: XIAO PING CHEN, individually and as Personal Representative for the estate of Run Sen Liu, and Yu Ting Liu, a single person, Appellants, v. The CITY OF SEATTLE, Respondent, and Peter Walton Brown and Jane Doe Brown; and John and Jane Does 1-10, jointly and individually, Defendants.

223 P.3d 1230

153 Wn. App. 890

XIAO PING CHEN, individually and as Personal Representative for the estate of Run Sen Liu, and Yu Ting Liu, a single person, Appellants, v. The CITY OF SEATTLE, Respondent, and Peter Walton Brown and Jane Doe Brown; and John and Jane Does 1-10, jointly and individually, Defendants.

No. 62838-1-I.

Court of Appeals of Washington, Division 1.

December 28, 2009.

James C. Buckley, Ronald Lewis Unger, Buckley & Associates, PS, Inc., Seattle, WA, Philip Albert Talmadge, Peter Lohnes, Talmadge/Fitzpatrick, Tukwila, WA, for Appellants.

Rebecca Boatright, Stephanie P. Dikeakos, Thomas Aquinas Carr, Seattle City Attorney's Office, City of Seattle/Tort Division, Seattle, WA, for Respondent.

Keith Leon Kessler, Garth L. Jones, Stritmatter Kessler Whelan Coluccio, Hoquiam, WA, for Amicus Curiae on behalf of Stritmatter Kessler Whelan Coluccio.

DWYER, A.C.J.

¶ 1 A municipality has a duty to all travelers to maintain its roadways in conditions that are safe for ordinary travel. Whether roadway conditions are reasonably safe for ordinary travel depends on the circumstances surrounding a particular roadway. Although relevant to the determination of whether a municipality has breached its duty, evidence that a particular physical defect in a roadway rendered the roadway dangerous or misleading or evidence that a municipality was in violation of a law concerning roadway safety measures are not essential to a claim that a municipality breached the duty of care owed to travelers on its roadways. A trier of fact may conclude that a municipality breached its duty of care based on the totality of the circumstances established by the evidence. Xiao Ping Chen adduced several pieces of evidence raising a genuine issue as to whether the city of Seattle failed to maintain in a reasonably safe condition the crosswalk in which her now-deceased husband, Run Sen Liu, was struck by an oncoming car. Therefore, the city was not entitled to summary judgment on Chen's negligence claim. Accordingly, we reverse.

I

¶ 2 On a rainy evening in February 2007, Liu was struck by a car driven by Peter Brown at the intersection of South Jackson Street and 10th Avenue South in Seattle's International District. Liu was crossing from the north side of South Jackson Street to its south side through a marked crosswalk. South Jackson Street is a five-lane arterial. At the time of the incident, there were no stoplights, stop signs, or pedestrian signals at the intersection. There were, however, stoplights and pedestrian signals on South Jackson Street at the intersections both preceding and following 10th Avenue South (8th Avenue South and 12th Avenue South). The 10th Avenue South intersection contained only pole-mounted signs at the curbs warning that there was a crosswalk and an overhead "Crosswalk" sign with a flashing light suspended above the street. Liu almost crossed the street safely; Brown's car collided with him in the curbside lane heading eastbound—the fifth and final lane Liu had to cross in order to walk from one side of the street to the other. He suffered a severe brain injury, among other trauma, and spent two years in a coma before dying. Chen brought a claim of negligence against Brown. She also brought a negligence action against the city, claiming that it failed to maintain the crosswalk in a reasonably safe condition for ordinary travel.

¶ 3 Evidence produced during discovery showed that Liu's accident was not the first serious accident that occurred in the crosswalk. Records produced by the city revealed that, as early as 1992, numerous residents from the surrounding neighborhood had petitioned the city to install stoplights at the intersection because of difficulties they had experienced while trying to cross the street. The city received requests throughout the next decade. In 1999, the city installed a pedestrian island in the center turn lane to provide a refuge at the midway point for pedestrians as they made their way across all five lanes. The city has no record of pedestrian —motor vehicle accidents reported during the time the island was in place. However, at the request of a nearby business, the city removed the island in 2002 in order to facilitate easier left turns through the intersection. Records prepared by city employees indicate that in the five-year period after the island was removed and before Liu was hit, there were at least eight other pedestrian-motor vehicle accidents at this intersection. One of these accidents, which occurred in the same crosswalk in which Liu was hit, resulted in the pedestrian's death.

¶ 4 Studies of the volume of traffic—or average daily traffic count (ADT)—passing through the intersection conducted before and after the incident show that approximately 16,000 motor vehicles traveled through the intersection every day. These studies also show that every day hundreds of pedestrians crossed the intersection, which is roughly 56 feet wide and takes the average pedestrian 19 seconds to cross. According to both parties' experts, this amount of time constituted the necessary crossing "gap" for the intersection at South Jackson Street and 10th Avenue South. A "gap" is a break in the flow of traffic sufficiently long to allow a pedestrian to cross from one side of the street to the other without having to stop for oncoming cars. Gap studies conducted by the city showed that, before Liu was hit, there were only 6 to 10 gaps per hour; post-accident studies showed that the number of gaps per hour ranged from 3 to 29.

¶ 5 Chen also submitted a 2005 study conducted by Charles Zegeer for the Federal Highway Administration ("the Zegeer study"). The city took part in this study as it was being prepared, and the director of the city's Department of Transportation later incorporated some of the findings of the Zegeer study into an administrative rule concerning safety measures for marked crosswalks in Seattle ("the director's rule"). The Zegeer study concluded that "[m]arked crosswalks alone are insufficient (i.e., without traffic-calming treatments, traffic signals and pedestrian signals when warranted, or other substantial crossing improvement) and should not be used ... [o]n a roadway with four or more lanes without a raised median or crossing island that has ... an ADT of 15,000 or greater." The director's rule incorporated this recommendation and characterized a roadway with these conditions as "[u]sually not a good candidate for a marked crosswalk."

¶ 6 In addition, Chen submitted the declarations of two engineering expert witnesses. Each of these witnesses concluded that the crosswalk did not adhere to sound engineering principles and posed a danger to pedestrians because it did not provide for adequate crossing "gaps." One of these witnesses, Edward Stevens, had analyzed the crosswalk following the fatal 2002 pedestrian—motor vehicle collision that occurred in the crosswalk. He had apprised the city of his opinion that the crosswalk was unsafe as early as 2005 in litigation arising out of the prior accident. Stevens also opined that the intersection was more dangerous at night because of drivers' diminished ability to see pedestrians in the crosswalk. Stevens testified at his deposition, however, that nothing at the intersection obstructed a pedestrian's view of oncoming traffic and that nothing was particularly confusing about the intersection for a motorist. He also agreed that, while "traffic conditions on the roadway may be confusing or misleading to a pedestrian, ... the configuration of the roadway itself is not." William Haro, Chen's other engineering expert witness, opined that the city created an unsafe condition when it removed the pedestrian island.

¶ 7 Chen also submitted the declaration of Gerson Alexander, an expert on ergonomics and human factors.¹ Alexander opined that the crosswalk presented a dangerous condition because pedestrians often have trouble accurately gauging the speed and distance of vehicles that are approaching from several hundred feet away and therefore might overestimate the margin of safety they have to cross an intersection. Specifically, he declared that "it is extremely difficult for pedestrians waiting to cross South Jackson to ascertain the distance, speed and time they have to get the necessary 56.3 feet across the intersection without being struck." In his deposition, Alexander acknowledged that there was nothing about the crosswalk or the configuration of the intersection that was dangerous or misleading "per se," but he testified consistently with his declaration that the combination of the crosswalk distance, problems of human perception, and the volume and speed of vehicular traffic passing through the intersection combined to create a dangerous condition at the crosswalk.

¶ 8 The city moved for summary judgment of dismissal. Pointing to the deposition testimony of Chen's experts that the crosswalk did not contain any physical defect rendering the crosswalk inherently dangerous or misleading, the city argued that Chen had failed to produce any evidence establishing that the crosswalk presented an unsafe condition. The city also argued that it was not in violation of any law requiring safety measures different from those installed at the crosswalk. On this point, the city noted that the Manual on Uniform Traffic Control Devices (MUTCD), which Washington has adopted, see RCW 47.36.020; WAC 468-95-010, did not require the city to remove, move, or further regulate the marked crosswalk at issue. Further, the city argued that the Zegeer study and the director's rule applied only to the installation of future crosswalks, not to preexisting crosswalks such as the one in which Liu was fatally injured.

¶ 9 The trial court granted the city's motion. Chen appeals.

II

¶ 10 We review de novo a trial court's order granting summary judgment. Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wash.2d 489, 497, 210 P.3d 308 (...