Bicycle Litigation Strategy

BICYCLE LITIGATION STRATEGY – ROADWAY SAFETY CASES

-- Keith L. Kessler 2014

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I.

INCREASING BICYCLE USE IN AN UNPREPARED URBAN ENVIRONMENT

Bicycle commuting tends to be popular near urban areas due to the “bicycle shed” distance of three miles – “the distance most people are willing to travel before looking to other travel options.”1 On these shorter trips, the bicycle is time-competitive with the car. And, of course, charges for downtown parking, at least in Seattle, make for a costly daily commute by car.

As of September 2010, the City of Seattle counted 3,251 cyclists commuting into downtown, up from 2,273 in 2007.2 A.

Drivers still fail to completely adapt to the invasion of bicycles on city streets.

While a theory exists that, with the increasing appearance of bicycles sharing city streets with cars, drivers are more likely to be aware of the presence of cyclists, bicyclists in fact report that the bicycle icon graphic painted on the asphalt in lanes that are to be shared does little to prevent lane change collisions, nor does it seem to alert motorists to cyclists’ limited conspicuity.3 In attempting to assess the full extent of the bicycle collision problem, an initial observation is warranted: by virtue of bicycles being viewed as merely “quasi-vehicles”, collisions involving cyclists often go unreported in the traditional car vs. car method, and, with records of such collisions surfacing primarily through hospital admission records, it is estimated that as few as 10% are recorded by police.4 Nevertheless, Seattle Department of Transportation data show Puget Sound Regional Council, “Bicycling and Walking in the Central Puget Sound Region”, PUGET SOUND TRENDS (July 2009).

1

Mike Lindblom, “Seattle Bicycle Crashes Holding Steady Even with More Commuters”, THE SEATTLE TIMES (February 18, 2012). See also Scott Gutierrez, “More People Biking to Work in Seattle”, SEATTLE P-I (December 15, 2009).

2

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Police have yet to solve the July hit-and-run death of bike commuter Mike Wang, a 44-year-old photographer. He was heading home to Shoreline when he was struck by a brown SUV that turned left across Dexter Avenue North. The case remains an open investigation, said police spokesman Jeff Kappel.

That tragedy helped discredit the fashionable idea in the 2000s that bikes, provided with lane stripes and icons, can coexist happily with arterial traffic.

Lindblom, supra n.2 (emphasis added).

Pedestrian and Bicycle Information Center, “Pedestrian and Bicyclist Crash Statistics”, www.pedbikeinfo.org/data/factsheet_crash.cfm. WSDOT’s Transportation Data Office points to earlier studies that estimated that up to 50% of bicycle crashes that are eligible to be reported are not. R. Wessels, “Bicycle Collisions in Washington State: A Six-Year Perspective, 1988-1993”, TRANSPORTATION RESEARCH RECORD 1538, at 82.

4

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1,847 bicycle crashes from 2007 to 2011, ten of which were fatal. 5 Among those crashes, a crossing car hit a cyclist 863 times, a cyclist ran into a crossing car 506 times, and there were 159 sideswipes.6 Car-bicycle crashes frequently occur where the driver of a car turning right doesn’t anticipate or see the bicycle on the right. The most common bicycle collisions have historically occurred at intersections where, again, the cyclist is not conspicuous.7 These events can be triggered by the multiple personalities of the bicyclist, who could well be called an ambiguous two-wheeled chameleon – recognized by law as both a “pedestrian”8 and a “vehicle”9. As discussed below, the action of a cyclist riding down the sidewalk with other pedestrians. . .

5

Lindblom, supra n.2. Nationally, 4,834 bicyclists were killed by motor vehicles in the U.S. between 1999 and 2009. http://www.nytimes.com/2012/06/16/us.

Ibid. “In bicycle-vehicle crashes, about 35 percent were caused by the driver failing to yield.” Scott Gutierrez, “Deadly Car vs. Bike Accidents: Should They Be a Crime?”, SEATTLE P-I (October 13, 2009).

6

R. Wessels, supra n.4 at 89 (“motorist action at intersections accounted for 30 percent of the total bicycle collisions on city streets).

7

8

Every person riding a bicycle upon a sidewalk or crosswalk must be granted all of the rights and is subject to all of the duties applicable to a pedestrian by this chapter.

RCW 46.61.755(2) (emphasis added). Specifically as to crosswalks, a bicyclist in a crosswalk has the same right of way as a pedestrian. RCW 46.61.235. See also Pudmaroff v. Allen, 138 Wn.2d 55, 60, 977 P.2d 574 (1999); Crawford v. Miller, 18 Wn. App. 151, 566 P.2d 1264 (1977).

9

Washington law expressly includes “bicycles” in its definition of “vehicle”: “Vehicle” includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, including bicycles.

RCW 46.04.670 (emphasis added). See WPI 70.09 (“A person riding a bicycle upon a roadway has all the rights of a driver of a motor vehicle and must obey all statutes governing the operation of vehicle except for those statutes that, by their nature, can have no application.”).

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. . . and then moving into the street with other vehicles . . .

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. . . can be confusing and even aggravating for drivers, who thereafter may become jurors.

Crosswalks only exacerbate the schizophrenia.

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But because car-bicycle collisions are generally fairly straightforward in terms of civil prosecution, they are not within the primary scope of this paper, although the sections on bicyclist rights, venue selection and juror strategies are applicable to any bicycle crash case. Rather, the main focus here is the pervasive unpreparedness of local government for bicycle-car integration on city streets and sidewalks, notwithstanding their selfpromotion as “bicycle-friendly”.

B.

Cities are still unprepared for the increasing use of bicycles on streets designed and maintained for cars, trucks and buses.

1.

Duty to Provide Reasonably Safe Streets and Sidewalks

Since 1895,10 Washington law has imposed a duty upon a municipality to “exercise ordinary care in the [design] [construction] [maintenance] [repair] of its public [roads] [streets] [sidewalks] to keep them in a reasonably safe condition for ordinary travel.” WPI 140.01. This common law duty to provide the traveling public with safe roads has been consistently reaffirmed over the ensuing 119 years.11 Prior to the State Legislature’s 1973 elimination of contributory negligence as an absolute bar to a plaintiff’s recovery, the duty to provide safe roads extended only to persons who were essentially fault-free. Even after the substitution of the comparative negligence standard, a

10

Sutton v. Snohomish, 11 Wash. 24, 39 Pac. 273 (1895).

11

Kirtley v. County of Spokane, 29 Wash. 111, 113, 54 P. 936 (1898): In this state corporations corporations maintenance one injured.

the right to recover for damages sustained by reason of negligence of municipal in failure to repair streets has been uniformly recognized. Such municipal are by law authorized to construct streets, bridges, and sidewalks, and the duty of is imposed upon the corporation, and for a breach of this duty they are liable to any

Following the 1895 Sutton and 1898 Kirtley cases, this duty has steadfastly remained embedded in our common law: see, e.g., Einseidler v. Whitman County, 22 Wash. 388, 60 Pac. 1122 (1900); Larsen v. Sedro-Woolley, 49 Wash.

134, 94 Pac. 938 (1908); Archibald v. Lincoln County, 50 Wash. 55, 96 Pac. 831 (1908); Neel v. King County, 53 Wash. 490, 102 Pac. 396 (1909); Blankenship v. King County, 68 Wash. 84, 122 Pac. 616 (1912); Leber v. King County, 69 Wash. 134, 124 Pac. 397 (1912); Kelly v. Spokane, 83 Wash. 55, 145 Pac. 57 (1914); Swan v. Spokane, 94 Wash. 616, 162 Pac. 991 (1917); Murray v. Spokane, 117 Wash. 401, 201 Pac. 745 (1914); Lewis v. Spokane, 124 Wash. 684, 215 Pac. 36 (1928); Gabrielsen v. Seattle, 150 Wash. 157, 272 Pac. 723 (1928); Boggess v. King County, 150 Wash. 578, 274 Pac. 188 (1929); Slattery v. Seattle, 169 Wash. 144, 13 P.2d 464 (1932); Fritch v. King County, 4 Wn.2d 87, 102 P.2d 249 (1940); Berglund v. Spokane County, 4 Wn.2d 309, 103 P.2d 355 (1940); Parker v. Skagit County, 49 Wn.2d 33, 292 P.2d 620 (1956); Owens v. City of Seattle, 49 Wn.2d 187, 299 P.2d 560 (1956); Boeing Co v. State, 89 Wn.2d 443, 572 P.2d 8 (1978); Stewart v. State, 92 Wn.2d 285, 597 P.2d 101 (1979).

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period of confusion ensued over whether a negligent plaintiff could recover, 12 with the issue ultimately resolved in Keller v. City of Spokane, 146 Wn.2d 237, 44 P.3d 845 (2002). The Washington Supreme Court in Keller held that the duty to provide safe roads extended to all travelers, not merely to those who were using the roads “in a proper manner and exercising due care for their own safety”, as former WPI 140.01 had provided.

Recently, Washington’s appellate courts have made it clear that, to establish a breach of the duty to provide a safe road, a plaintiff need not present evidence of a particular physical defect or violation of a roadway safety measure; rather, a breach of the duty is based upon the “totality of circumstances”,13 meaning that a municipality may be liable for a collision caused in part by an intersection that has become so busy that it is unsafe without a traffic signal, or a pedestrian crossing-area lacks adequate gaps in vehicle traffic to allow for safe passage without a pedestrian refuge island or some other traffic control device.

Finally, the Supreme Court has broadly declared that a city has a duty to “eliminate an inherently dangerous or misleading condition” as part of its “overarching duty to provide reasonably safe roads for the people of this state to drive upon.”14

2.

Safe Streets and Sidewalks for Bicycles

This duty to provide reasonably safe roads extends to bicyclists. See, e.g., Camicia v. Howard S. Wright Construction Co., 179 Wn.2d 684, 317 P.3d 987 (2014).15 The problem for municipalities is their right hand-left hand lack of communication. Welcoming bicycle commuting and daily travel into their “bicycle-friendly” cities, city councils promote the city as a healthy destination, and strive to reduce traffic congestion and motor vehicle pollution.

In doing so, however, they subject the bicyclist to rough street surfaces that much heavier, fourwheeled vehicles readily traverse, but which can put cyclists at risk of severe injury. In Seattle’s downtown core, for example, even lanes designated for bicycles are rife with rutting, deep cracks and potholes, such as this intersection at Seneca Street and 6th Avenue:

12

This confusion was created by Hansen v. Washington Natural Gas, 95 Wn.2d 773, 632 P.2d 504 (1981).

13

Chen v. City of Seattle, 153 Wn. App. 890, 223 P.3d 1230 (2009), review denied 169 Wn.2d 1003, 234 P.3d 1172 (2010).

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Owen v. Burlington Northern and Santa Fe R.R. Co., 153 Wn.2d 780, 787-788, 108 P.3d 1220 (2005).

Pre-Keller cases specifically acknowledged application of WPI 140.01 to bicyclists, but upheld a defense verdict (Wick v. Clark County, 86 Wn. App. 376, 936 P.2d 1201 (1997)) and a defense summary judgment (Gunshows v.

Vancouver Tours, 77 Wn. App. 430, 891 P.2d 46 (1995)) based on the earlier language of the instruction in play at the time, which provided that a municipality’s duty to provide reasonably safe roads extended only to “people exercising care for their own safety”. Gunshows, 77 Wn. App. at 435.

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While cities such as Seattle and Bellevue have worked on bicycle route planning,16 the lag time in developing and implementing these plans has these and other municipalities substantially behind the power curve in terms of meeting current needs for bicycle-car traffic control designs, 16

See, e.g., Seattle Master Bicycle Plan, approved in 2007 (http://www.seattle.gov/Transportation/bikemaster.htm) (“The plan focuses on two major goals: to triple the amount of bicycling in Seattle between 2007 and 2017, and to reduce the rate of bicycle collisions by one third during the same timeframe.�); Bellevue Pedestrian-Bicycle Plan (http://www.ci.bellevue.wa.us/pedbikeplan).

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as well as “bicycle-friendly” street and sidewalk surfaces. The primary problem inheres in the fact that the planning personnel developing bicycle route networking have virtually nothing to do with the maintenance divisions within their various departments of transportation or public works, leaving road repair crews to address pavement conditions based on traditional criteria applicable to cars and trucks.

The consequences: bridge grates that entrap narrow bicycle wheels, abruptly stop the forward movement of the bicycle, and send the cyclist over the handlebars and onto the bridge deck with resulting quadriplegia; a sidewalk panel that has sunk, creating a tripping hazard for a slightly angled front bicycle wheel, with the same abrupt stop and resulting quadriplegia; potholes and rutting in a lane designated for bicycles that cause a cyclist’s loss of control and, again, quadriplegia.

II.

CASE STRATEGIES

Three bicycle injury cases afford a study of strategies in different settings.

A.

Case #1: Gendler v. State of Washington*

Background: The Montlake Bridge in Seattle, built in 1925, underwent a seismic retrofit project in 1999, resulting in the replacement of steel grate panels along the bridge deck. The contract plans for the deck replacement required a .5ʺ width for the two longitudinal seams between the three sets of deck panels.

Although the Washington State Department of Transportation (WSDOT) had inspectors on site to ensure compliance with contract specifications, they likely viewed the deck as a surface for

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motor vehicles, forgetting that bicycles constitute a lawful element of the traffic population crossing the bridge deck. As a result, the seam between grid panels exceeded .5ʺ in places.

The plaintiff was an extremely experienced cyclist, having bicycled in challenging events throughout much of Europe. On October 28, 2007, he rode his bicycle onto the Montlake Bridge, transitioning from the right, outside lane to the inside lane. His intention was to turn left shortly after crossing the bridge. Three-quarters of the way across the bridge, his .8ʺ front wheel dropped down into the seam between two adjoining steel grate panels, and then quickly became wedged as the seam narrowed. With his bicycle stopping so abruptly, he was thrown over the handlebars and onto the bridge deck. Upon striking the hard surface of the deck, his spine sustained severe injuries, leaving him paralyzed and immobile.

1.

Venue

The State of Washington owns the Montlake Bridge and is responsible for maintaining it in a reasonably safe condition. The State can be sued in (a) the county where the plaintiff resides, (b) the county where the cause of action arose, and (c) Thurston County. RCW 4.92.010(1), (2) and (5).

Because King County jurors, particularly in the City of Seattle, are exposed to aggressive bicyclists – with occasional militant bicycle-rights extremists, or even reckless “messenger service” cyclists who disregard traffic signals, and do so at higher speeds – cases involving the State as a defendant are best brought in Thurston County, where cycling is pleasurable and not frenetic, as readily confirmed by focus groups conducted in both Seattle and Olympia.

2.

Streamlining the Case through “Laser Motions”

Motions for partial summary judgment are particularly effective both in eliminating issues for the jury, and in dismantling affirmative defenses. That was done effectively here through six MSJs, referred to by defense counsel as “laser motions” because they systematically sliced away issues.

MSJ #1: The first motion for partial summary judgment sought a declaration by the trial court that bicycles were entitled by law to travel on the bridge roadway, rather than being relegated to the sidewalk. The State did not resist this motion, and summary judgment was entered. It was therefore uncontested that the plaintiff cyclist was lawfully on the bridge deck.

MSJ #2: Plaintiff’s second motion for partial summary judgment asked the trial court to find, as a matter of law, that the cyclist was lawfully in the left (or inside) lane at the time he was injured. The State resisted, claiming that cyclists are to remain on the right unless passing, and that this particular cyclist entered the left lane sooner than was necessary. The trial court granted summary judgment ruling that the plaintiff was entitled by law to be in the left lane.

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MSJ #3: Plaintiff’s third motion for partial summary judgment requested a similar ruling that it was lawful for the cyclist to move from the right lane to the left lane. The trial court so ordered.

MSJ #4: The fourth motion for partial summary judgment was brought to establish (1) that the longitudinal seam was wider than the .5ʺ requirement of the contract plans, and (2) that had the seam width been .5ʺ as required, the cyclist’s front wheel (at just over .8ʺ) would not have slotted in and become entrapped in the longitudinal seam, with this paralyzing incident never occurring. The trial court so ordered.

MSJ #5: The fifth motion for partial summary judgment sought a ruling establishing that the plaintiff-cyclist was fault-free. Because the trial court had already ruled that the cyclist was lawfully on the bridge deck and lawfully in the left lane, that his move from the right lane to the left lane was lawful, and given that it was uncontested that he was traveling within the speed limit (15 mph in a 30-mph zone), the motion focused on the fact that the plaintiff had committed no tortious act that was a proximate cause of the crash or his injuries. The State’s position on contributory fault was that the cyclist should have avoided the admitted “hazard” of the State’s longitudinal seam (the State had in fact referred to the longitudinal seam as a “hazard” on seven occasions in its brief). The motion pointed out that the cyclist had a lawful right to assume that the roadway was reasonably safe, and free of hidden hazards.17 The State was forced to admit that it was arguing that the cyclist should have been able to gauge the difference between a .5ʺ and an .8ʺ seam – 310 of an inch viewed from several feet above the deck. The State’s only evidence in support of its position was the testimony of a cycling expert whose human factors opinions as to hazard perception were stricken by the trial court in response to a separate motion by the plaintiff. This motion for partial summary judgment was not to be heard until after mediation was concluded. Because mediation was successful, the issue never received a ruling.

MSJ #6: Plaintiff’s sixth motion for partial summary judgment asked the trial court to rule that the State had notice of a prior bicycle accident in June of 1999 in which the front wheel of a bicycle became entrapped in a longitudinal seam that was reportedly up to 1ʺ in width due to the apparent misalignment of the bridge grate panels. That motion was denied without prejudice, with the trial court asking for further explanation as to the “materiality” of notice of the prior incident. (As discussed immediately below, notice was indeed material.)

17

A person using a public [road] [street] [sidewalk] has a right to proceed upon the [road] [street] [sidewalk] with the assumption that it is safe for travel until he or she knows, or in the exercise of ordinary care should know, to the contrary.

WPI 140.03.

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3.

Proving Notice Through the Bicycling Community

While the law is clear that a municipality has a duty to provide reasonably safe streets, and a hazardous condition is prima facie evidence of a breach of that duty, notice often plays a critical role in establishing fault.

It is well-settled that notice of the existence of the hazard need not be proved where the unsafe condition was created by or resulting from the action of the governmental entity or its employee.18 Nor is evidence of notice needed where there was a duty to anticipate unsafe conditions.19 An issue, of course, is under what circumstances a municipality or its agent should anticipate the development of an unsafe condition.

In many cases, where a hazardous condition develops over time, the focus is on actual and/or constructive notice.20 As discussed in Case #2 (Remme v. State), infra, constructive notice can be established based on the visibility of the hazard to municipal employees, and/or the passage of time.

To establish actual notice, one needs a thorough investigation into prior bicycle crashes at the site of the hazard. This can best be accomplished through the network of the bicycling 18

Batten v. South Seattle Water Co., 65 Wn.2d 547, 398 P.2d 719 (1965); Palmer v. City of Puyallup, 50 Wn.2d 627, 313 P.2d 1114 (1957); Russell v. City of Grandview, 39 Wn.2d 551, 236 P.2d 1061 (1951).

Argus v. Peter Kiewit Sons’ Co., 49 Wn.2d 853, 307 P.2d 261 (1957). In Argus, Peter Kiewit Sons’ Company (Kiewit) conducted highway maintenance and repair work on US 101 pursuant to a contract with the State of Washington. Kiewit barricaded a portion of the highway, and constructed a 500-foot detour onto a gravel road. A Kiewit employee was assigned to keep the gravel graded. Nevertheless, a motorcyclist encountered a depression or trough in the dark, lost control and was injured. Kiewit contended that its employee had inspected the roadway earlier in the evening and found it to be satisfactory. It argued, in any event, that unless or until a contractor is shown to have had actual or constructive knowledge of the defect a sufficient length of time before the accident to have remedied the condition, there can be no liability.

19

The Supreme Court held that no proof of notice – actual or constructive – was needed where a developing unsafe condition could be anticipated: The duty of the appellant contractor to use ordinary care in keeping the detour in a safe condition for proper travel involved the anticipation of defects that were the natural and ordinary result of use by vehicular traffic. Appellant could not remain passive until the defect or dangerous condition developed and an accident happened, and then avoid liability on the ground that it had no actual or constructive knowledge or notice of the specific defect or the dangerous condition. In the exercise of due care, it had a duty to anticipate the development of a dangerous condition and guard against it. In the proper exercise of due care, the appellant is chargeable with knowing what might reasonably be expected to happen.

Argus, 49 Wn.2d at 856.

20

See WPI 140.02.

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community. By virtue of the camaraderie of cyclists in the Cascade Bicycle Club and other riding groups, word of a bicycle crash spreads far and wide rather quickly.

Here, through the assistance of the cycling community, cyclists were located who were able to establish their own personal encounters with this variable seam in the bridge deck, their loss of control, and their resulting injuries. This established that the subject crash wasn’t isolated. More importantly, one cyclist who was injured much earlier in a minor incident caused by his front wheel wedging in the seam actually took photos of both the bridge deck defect and his injuries, and sent them with a letter of complaint to the City of Seattle, believing that this was a city bridge. The City in turn forwarded the complaint to WSDOT, who assigned an employee to inspect the problem and report back. The employee acknowledged in his diary (obtained in discovery) that he intended to inspect, measure and photograph the deviant seam the next day.

As documented by his diary, he failed to do so. Both the existence of the hazard and the State’s actual knowledge of it were established, and liability was all but sealed.

4.

Plaintiffs’ Mediation Report

As with all serious injury cases, video footage documenting physical challenges, therapies and progress not only enhance the likelihood of maximizing a recovery through mediation, but it provides video segments for use at trial by experts to visually demonstrate therapies and physical challenges.

The video series in this case documented an incomplete quadriplegic’s devotion to therapies and exercise to achieve the ability to stand and, ultimately, to use a walker.

The video contained interviews with his spouse, his friends, some therapists, and the life care planner, and also showed footage of his efforts to walk and, remarkably, even ascend stairs with physical help from others.

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B.

Case #2: Remme v. State of Washington and City of Seattle*

Again, the Montlake Bridge. Whereas in the Gendler case the State had suggested that the cyclist should have been on the sidewalk rather than the bridge grates, here the cyclist was in fact traveling on the bridge sidewalk when he encountered a sunken sidewalk panel that abruptly stopped his bike’s slightly turned front wheel, throwing him over the handlebars and onto the concrete sidewalk, causing quadriplegia.

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(Photo, taken a matter of minutes after the crash, shows hazard hidden by shadow from bridge sidewall)

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1.

Use of Storyboards Rather Than Computer-Generated Animation

Fundamental challenges to the admissibility of computer-generated animation used to reconstruct a collision include deficiencies in the software program used, inapplicability of the program to the conditions of the crash, and/or inputting arguably erroneous data, with each frame or series of frames subject to being discredited for a single discrepancy. The solution is to use a series of selected single frames as storyboards, presented to assist eyewitnesses and the accident reconstruction expert with their trial testimony. Used for illustrative purposes, the storyboards are not subject to the strict scrutiny of frame-by-frame accuracy to meet the criteria for admissibility.

More importantly, the plaintiff’s storyboards are used as stepping stones to allow jurors to piece together the crash themselves, and thereby “own� the analysis.

2.

Venue

Again, Thurston County. Neither the State nor the City of Seattle moved for a change of venue on a forum non conveniens basis, which is waived if not sought promptly. RCW 4.92.010.

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3.

Proving the Municipality’s Constructive Knowledge of the Unsafe Condition

Inherent in the duty to provide reasonably safe streets are regular inspections so that a dangerous condition can be identified and corrected. Against that obvious logic is the claim by SDOT that, due to “limited resources”, it has no regular inspection process, and therefore relies on complaints by the public, frequently after an injury has been caused by the hazard.

This head-in-the-sand approach, while arguably negligent on its face, can present the plaintiff with the challenge of proving constructive knowledge in the absence of prior specific complaints from the public.

Among the sources available to establish knowledge of the defect in the roadway surface is the municipality’s road log video, with traveling footage generally recorded annually.

Other sources include cyclists who commute along the subject route and can approximate the age of the defect or hazardous condition.

Another source can be other governmental entities. Here, although the City was responsible for proper maintenance and repair of the subject sidewalk, WSDOT was required by the Federal Highway Administration to inspect its bridge for structural safety every two years. In April of 2010, its Bridge Inspectors identified the subject section of sidewalk as a “tripping hazard” in their report, ranked it as a “Priority 1”, and assigned Repair No. 12213 to correct the hazard.

Their photo-documentation of the defect was included in their report (see below). Unfortunately, Repair No. 12213 went into WSDOT’s computer and never came out. Nevertheless, the WSDOT report, filed a full year before the April 2011 subject incident, established a substantial period during which the City of Seattle could and should have been aware of the hazard, and should have corrected it.

(Source: WSDOT – April 2010)

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Under Washington law, the existence of a hazardous condition on a public sidewalk for as little as three months has been held adequate to constitute constructive notice as a matter of law.21 4.

Duty to See What is There to Be Seen

While the municipality is apt to blame the bicyclist for failing to avoid the defect in the sidewalk or street, arguing that the hazard was there to be seen, it is reversible error to give a WPI 12.06 instruction in the ordinary negligence case where there is no recognized positive duty to look for a particular danger.

The WPI 12.06 Duty of Seeing jury instruction (“Every person has a duty to see what would be seen by a person exercising ordinary care”) is to be given only “where there is a positive duty to look”. Smith v. Manning’s, Inc., 13 Wn.2d 573, 578, 126 P.2d 44 (1942); Comment, WPI 12.06, 6 WASHINGTON PRACTICE 158 (2012). While there is a positive duty to look “in the case of a disfavored driver entering a street intersection”, there is otherwise no duty to look for a hazard under normal driving, bicycling or walking conditions. Smith, 13 Wn.2d at 578. Accord: Smith v. B&I Sales Company, 74 Wn.2d 151, 153, 443 P.2d 819 (1968) (“Where there is no reason to anticipate a hazard, reasonable care does not require one who is walking in a place provided for the purpose, to keep his eye riveted to the floor immediately in front of his feet”). For example, in Simpson v. Doe, 39 Wn.2d 934, 239 P.2d 1051 (1952), where a theatre patron returning from the ladies’ lounge to the main floor of the auditorium fell when stepping onto a slightly lower level of the floor, the Washington Supreme Court held that there was no duty to look directly down at her feet to notice the difference in the floor levels between the two rooms: The evidence shows affirmatively that Ms. Simpson did not walk out into the lounge without looking where she was going. She hesitated momentarily and 21

In Stone v. City of Seattle, 64 Wn.2d 166, 391 P.2d 179 (1964), the Washington Supreme Court held that the existence of a sidewalk defect for three months was a long enough period of time to constitute constructive notice, as a matter of law. In that case, Mr. Stone was injured when he encountered a hole in the sidewalk at 13th and Denny in Seattle. Although several witnesses testified that they hadn’t seen the hole, others had, and one witness testified that the sidewalk defect was there in September, three months before Mr. Stone’s December incident.

Affirming the trial court’s directed verdict for the plaintiff, the Supreme Court held: The defect did exist, and it was present for a sufficient period of time to constitute constructive notice against the city.

Stone, 64 Wn.2d at 170-171.

In Holland v. City of Auburn, 161 Wash. 594, 297 P.769 (1931), as little as six to seven days’ existence of a 2-4ʺ ice mound on a sidewalk between city hall and the post office was held sufficient for constructive notice to be imputed to the city. In Skaggs v. General Electric Company, 52 Wn.2d 787, 328 P.2d 871 (1958), Mr. Skaggs was injured at 4:00PM on October 27, 1956 when he tripped and fell over a sign post that had been bent across the sidewalk at 9:00AM, earlier that same day. The Washington Supreme Court upheld the jury’s verdict charging the entity responsible for the sidewalk with constructive notice of the hazard. In Trojan v. City of Blue Island, 10 Ill. App. 2d 47, 134 NE 2d 29 (1956), a defect in the sidewalk that had existed for a period of one to two months was held to have been present for a sufficient time to constitute constructive notice to the city of its existence.

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looked at a place on the floor about three feet ahead of her. We need not speculate as to whether she would have noted the step had she looked directly at her feet as she passed through the doorway. Where there is no reason to anticipate a hazard, reasonable care does not require one who is walking in a place provided for that purpose to keep his eyes riveted to the floor immediately in front of his feet.

Simpson, 39 Wn.2d at 937. Whether walking or riding a bicycle, the law recognizes no positive duty to look for cracks or uneven sidewalk. To give a WPI 12.06 instruction in a bicycling case would erroneously imply that an ordinary person who is bicycling has an affirmative duty to look for cracks and uneven sidewalk. Under these circumstances, as in Smith v. Manning’s, Inc., supra, it is reversible error to instruct the jury that there is such a “duty to see”.

Further, such an instruction would unfairly emphasize one party’s theory of the case, constituting reversible error on this basis as well: For example, in Cornejo v. State, 57 Wn. App. 314, 788 P.2d 554 (1990), the court held that it was reversible error to give this instruction because it unfairly emphasized one party’s theory of the case. The Cornejo court found the instruction “palpably unfair” because it turned the jury’s attention away from the clear evidence of the defendant’s negligence, toward the question of the plaintiffs’ contributory negligence on which there was minimal evidence.

Comment, WPI 12.06, 6 WASHINGTON PRACTICE 157 (2012). In that case, Ms. Cornejo fell to her death between two parallel spans of an overpass structure approximately 40 feet above the ground. Her car had spun out on the icy road surface, and had come to a stop. She exited her car and was later found below the bridge, apparently having fallen through the opening between the two overpass spans, not having seen the gap in the darkness. The State’s theory was that “the opening was clearly visible to drivers, and because Ms. Cornejo crossed the bridges regularly as she drove to and from work she should have noticed the gap.” Cornejo, 57 Wn. App. at 318.

The Court of Appeals reversed a jury finding of contributory negligence, holding that, because there was no positive duty to see the hazard, the trial judge committed reversible error in giving the “duty of seeing” instruction (WPI 12.06), particularly where the “instruction unfairly turned the jury’s attention away from the clear evidence of the State’s negligence, toward the question of Ms. Cornejo’s contributory negligence.” Cornejo, 57 Wn. App. at 321. The court went on to hold that, by emphatically favoring the State’s theory, the instruction overstated the State’s minimal evidence to such a degree as to make it “palpably unfair”, requiring reversal. Cornejo, 57 Wn. App. at 321.

In any event, there is no duty under Washington law to affirmatively look for cracks or uneven sidewalk panels when either walking or bicycling.

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5.

Avoiding Recreational Immunity

While the Montlake Bridge is a popular route for commuting, it is also used to access Lake Washington, where cyclists may be using the street and sidewalk to get to work or to shop, or just to ride for health or pleasure. Knowing that the City of Seattle had designated the Montlake Bridge as part of a “bicycle route”, a full-out effort was made to treat the bridge throughout litigation as simply a sidewalk used to transport pedestrians and bicycles, much as the bridge deck served to convey cars, trucks and bicycles to whatever their destination happened to be.

Aware that the issue of recreational immunity was awaiting Supreme Court resolution as it pertained to bicycle travel, and further aware that a look-out point at the Deception Pass Bridge had earlier received immunity under the Recreational Use Statute, 22 the prudent approach was to eschew the City’s bicycle route designation, and treat the sidewalk as a sidewalk.

The issue has now been well-resolved very favorably in Camicia v. Howard S. Wright Construction Co., 179 Wn.2d 684, 317 P.3d 987 (2014). Simply put, a sidewalk or street that was initially created and opened as a sidewalk or street for broad public use does not become a recreational facility merely because a cyclist uses it for a recreational bike ride. The mental intent of the cyclist is irrelevant: Extending the reach of RCW 4.24.210 to land that is open to the public for purposes other than recreation simply because some recreational use occurs not only undermines the statute’s plain language and the legislature’s intent but would also unjustly relieve the government of its common-law duty to maintain roadways in a condition reasonably safe for ordinary travel. See Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002); See generally Berglund v.

Spokane County, 4 Wn.2d 309, 313-14, 103 P.2d 355 (1940) (collecting cases).

Recreational immunity would conceivably extend to every street and sidewalk in downtown Seattle, as these are open to the public without charge. Indeed, many streets and roads present some opportunity for “viewing or enjoying historical… sites”, another recreational purpose under the statute. RCW 4.24.210(1). It would be absurd if Seattle could assert recreational use immunity for injury to a visitor to Pioneer Square simply because tourists are permitted to enter it without charge to view “scenic… sites.” See id. We avoid any reading of the statute that would result in unlikely, absurd, or strained consequences….

Camicia.23 Given that virtually every state highway, county road, city street and public sidewalk was opened for public transportation, and not expressly for the purposes of outdoor recreation, it will now be the extremely rare case that Washington’s Recreational Use Immunity statute will

22 23

Chamberlain v. Department of Transportation, 79 Wn. App. 212, 901 P.2d 344 (1995).

Classification of the Burke-Gilman Trail in Seattle may still be unresolved under this analysis. As the Camicia court observed, the plaintiff in Riksem v. City of Seattle, 47 Wn. App. 506, 508, 736 P.2d 275 (1987), did not dispute that the trail was open to the public for the purposes of outdoor recreation or that he was a recreational user.

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have any relevance in cases brought to hold a municipality accountable for injuries to a bicyclist resulting from an unsafe roadway or sidewalk.

C.

Case #3: Doe v. City of Seattle

Background: A Chief Financial Officer is commuting by bicycle to his place of work in downtown Seattle. He is heading westbound along Seneca Street, traveling on a downward incline between 7th and 6th Avenues. He is using the lane containing the bicycle icon graphic.

He is traveling at approximately 17 miles per hour. His lane devolves into potholes and severe cracking. He avoids these hazards by steering around them until he reaches the base of the slope at the intersection of Seneca and 6th, at which point he encounters rutting that sharply re-directs his front wheel, and he is thrown over his bicycle handlebars and onto the pavement.

Although wearing a full protective helmet, his spine is compressed and he is left quadriplegic.

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1.

Public Records Act Requests for Complaints and Maintenance History

One of the earliest projects in any case involving an unsafe roadway – bicycle or otherwise – is to secure all available information about the street or sidewalk in question, particularly accident history, maintenance activities, prior complaints, and photo- or video-documentation of the subject location collected and retained by the responsible public entity.

The collision history is sought from the Washington State Patrol as the statutory custodian of Police Traffic Collision Reports.24 Beginning in the mid-1980s, the State (and a number of municipalities) refused to produce accident reports unless (1) the requestor signed a sworn statement that the records were not being sought for litigation against a governmental entity, or (2) a trial court ordered production. The uncooperative governmental entities, led by the State (WSDOT), claimed that 23 U.S.C. §409 placed these and other internal records beyond the reach of plaintiffs in actions against governmental entities. While the federal statute, read overly broadly, appeared to place restrictions on the admissibility and even discovery of documents that could potentially be used by a governmental entity in an application for federal funding for a roadway project, the U.S. Supreme Court ruled in Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed. 2d 610 (2003) that if the records were being sought from a governmental department other than a public works or transportation unit, they were in fact discoverable and could be relied upon by experts and used at trial.

Thereafter, in Gendler v. Batiste, 174 Wn.2d 244, 274 P.3d 346 (2012), the Washington Supreme Court clearly held that police reports sought from the Washington State Patrol under the Public Records Act25 were exempt from the so-called non-disclosure provisions of 23 U.S.C. §409.

Today, one need merely direct a request for a 10-year collision history (actual accident reports) for a given location (generally including a half-mile in both directions away from the roadway milepost or city block where the subject crash occurred). This will provide not only the identity of witnesses to roadway or sidewalk conditions (assuming that the names and addresses aren’t redacted), but the documents can also show the municipality’s constructive notice of the unsafe condition, and potentially even actual notice. The documents tend to come with a written caveat on the front page warning that 23 U.S.C. §409 prohibits the use of the document in any litigation against a governmental entity, but this is directly contrary to Guillen and Gendler. It is likely little more than an effort to preserve the government’s position should a future court reverse these Supreme Court rulings.

As for the balance of the documents and information needed to fully evaluate the roadway safety case, a simple Public Records Act request to the governmental entity before ever filing suit – made as specific as possible – should produce the internal documents sought.26 24

RCW 46.52.060.

25

Chapter 42.56 RCW.

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III.

THE JUROR’S STATE OF MIND

Bicycle litigation should be approached from the standpoint that the bicycle is a non-polluting alternative to exhaust-spewing cars, trucks and buses. As children, it was the “companion” whom we rode to school or to a friend’s house.

26

Example:

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More and more, people are turning to bicycles for inexpensive, quiet, healthy pleasure. The bicyclists on the jury are law abiding citizens who can readily relate to the plaintiff. With some prompting, they will agree that bicycling is a clean, lawful activity, and they will endorse the principle that bicyclists have the same rights as others to a safe street or sidewalk.

Whether or not jurors currently bicycle, their children and grandchildren should not be subjected to hazardous traps while learning to ride or developing their bicycling skills.

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****** It has been lawful to ride bikes on sidewalks for the past century. As cities invite more and more citizens to abandon their cars and commute by bicycle, they must be mindful that city streets have to be designed and maintained with these invited cyclists in mind. As city and state employees responsible for bicycle safety programs will readily admit, the rough streets and deep potholes that cars have been subjected to are no long acceptable, given that bicycles comprise more and more of the traffic population on our streets – with the blessing of our cities.

It is largely a matter of directing the bicycle safety program personnel to communicate with the maintenance division superintendent. Until then, the left hand and the right hand will not provide the reasonably safe roads that the law requires. Until then, it will be the jury’s responsibility to hold the municipality accountable for injuries caused by its unsafe street or sidewalk. It’s not just accountability – it’s a matter of public safety. klk

* Special thanks to Seattle Attorney John P. Duggan, co-counsel in both Case #1 and Case #2 above.