From the desk of Kyle Riley: When an owner of adjacent property uses a public right of way for its own purposes, what duty do they owe to pedestrians? When a landowner denies having actual knowledge about a dangerous condition, but argues the plaintiff had notice because the condition was “open and obvious” can they still prevail on summary judgment? Read on to find out what the Washington Court of Appeals recently had to say about these issues.
Claims Pointer: Negligence, or the absence of negligence, is ordinarily a question for the jury unless reasonable jurors could not differ in their interpretation of the facts. When an owner of adjacent property uses a public right of way for its own purposes, they have a duty to keep the area safe. If a landowner and/or owner of adjacent property has constructive knowledge about a dangerous condition and if a jury could find it was foreseeable that the condition could cause harm despite the fact that the condition is “open and obvious,” summary judgment is inappropriate.
Hatch v. King County, in the Court of Appeals of the State of Washington (2012 WL 255853, January 30, 2012).
Karen Hatch went to pick up her son from kindergarten. Because the school’s parking lot was full, Hatch parked on the road in front of the school. She walked towards the school with the two five-year old children she had with her that day, crossing a sidewalk. She turned around to make sure one of the children was following her and she hit her shin against a concrete curb adjacent to the sidewalk, snapping a bone and falling to the ground. Hatch sued King County (the County) and the Snoqualmie Valley School District (the District) for negligence. The County and the District successfully moved for summary judgment and Hatch appealed.
On appeal, the Court of Appeals reiterated the rule that a governmental entity may be liable for an unsafe condition they did not create only if they had actual or constructive notice of the condition and the opportunity to correct it. Because the concrete curb had potentially been in that location for seventy years, the Court held that a trier of fact could conclude both the County and the District had constructive notice of the unsafe condition. The District argued that they were merely an adjacent property owner and had no responsibility to prevent harm caused by the curb. The Court disagreed, finding that when an owner of adjacent property uses a public right of way for its own special purposes, they have a duty to keep the area reasonably safe.
Both Defendants then argued that even if they had constructive notice, the unsafe condition was “open and obvious” so there was no duty to warn anyone or fix the condition as a matter of law. The Court dismissed this argument because Hatch presented evidence the curb was camouflaged with moss and also because a jury could find that it was foreseeable to both Defendants that the curb could cause harm even if it was open and obvious. Finding issues of fact precluded granting summary judgment in favor of Defendants, the Court reversed the trial court’s decision and remanded for further proceedings.
NOTE: This opinion has not been published. It is provided to demonstrate how the court approaches the issues involved in the case. It cannot be cited as authority to a court of law.
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