May, 2009
Homeowner potentially liable for artificial condition that causes defect in adjacent sidewalk
by Andrew Bergh

When James and Annabel Hughes planted three white birch trees near the sidewalk fronting their house, they undoubtedly had no clue they would someday contribute to Washington state tort law. But thanks to Rosengren v. Hughes, __ Wn.App. __ (2009), recently decided by the Washington Court of Appeals (Division One), that’s exactly what happened.

The Hughes bought their long-time home in West Seattle in 1953. Decades later (but prior to 1990), they planted the birch seedlings only a yard away from the sidewalk abutting their property. By all accounts, the sidewalk has always been owned and maintained by the city of Seattle.

Fast forward to July 28, 2003, which is when Joyce Rosengren tripped and fell while walking over a raised portion of the sidewalk in front of the Hugheses’ residence. As a result, she fractured her right wrist.

Exactly three years later, Rosengren filed a tort action in King County Superior Court against, among others, the Hugheses and the city of Seattle. The defendants were liable for damages, she claimed, because they owned or otherwise controlled the property and had negligently breached their duty to provide for her safety while walking on the sidewalk. To support this theory, Rosengren hired a human factors expert who determined that the uneven sidewalk rose as much as 1.12 inches above the surface, thus constituting a tripping hazard.

The Hugheses later moved for summary judgment on the lone ground that they owed no legal duty to Rosengren.

In opposition to the motion, the city submitted a declaration from its arborist, Nolan Rundquist, who said that given the three birch trees’ proximity to the sidewalk, the likely cause of the “small sidewalk offset” was the growth of their “larger support roots,” which had spread under the sidewalk and “levered up” the end of one of the concrete panels. The tree expert also opined that the sidewalk damage could’ve been prevented if the homeowners had planted the birch trees farther away from the sidewalk.

Notwithstanding the arborist’s testimony, the trial court granted the Hugheses’ motion and later denied the city’s motion for reconsideration. After Rosengren and the city separately filed motions for discretionary review, the Court of Appeals agreed to hear the case. (It’s not clear why Rosengren apparently sat on the sidelines at the trial court level, letting the city oppose the CR 56 motion and move for reconsideration, but then sought appellate review along with the city.)

Since summary judgment was only granted on the duty issue, Division One said the “singular question” to be resolved was whether the Hugheses, as landowners with property abutting a public sidewalk, owed a duty of care to pedestrians like Rosengren.

At the outset, the Court of Appeals observed that in Washington, the majority of cases involving injuries to pedestrians on sidewalks have been decided under the so-called “special use” doctrine. For example, in the earliest case cited by the court (Edmonds v. Pac. Fruit & Produce Co., 171 Wash. 590 (1933)), our high court recognized a duty where a depression in the sidewalk was created by a landowner who caused its deterioration by repeatedly driving over it. Or, in a much more recent case (Seiber v. Poulsbo Marine Ctr. Inc., 136 Wn. App. 731 (2007)), Division Two found a special use, obligating the landowner to keep the immediate area safe for pedestrians, where the landowner had displayed merchandise on the sidewalk.

In the “special use” cases, a duty of care is imposed because the landowner somehow exercises dominion and control over the sidewalk. This aspect was lacking in their case, the Hugheses argued, because the existence of healthy trees abutting a sidewalk – no more and no less – doesn’t rise to the same level. But although Division One agreed, ruling that the special use doctrine had “no application” to the facts at hand, the court ultimately rejected the defendants’ argument that there was no other possible source of a duty.

The Court of Appeals first hung its hat on Albin v. Nat’l Bank of Commerce, 60 Wn.2d 745 (1962), which it described as the “seminal case” in Washington on landowner liability for injuries to persons occurring outside the land. There, after the defendant landowner had logged all but one tree from his property, the lone remaining tree fell and injured a motorist on the adjacent highway. According to Division One, although the landowner in Albin was eventually vindicated by a jury, the case stands for the proposition that liability for an offsite injury may be imposed if it flows from an artificial condition created on the land by the landowner.

The appeals court next addressed whether the trees planted by the Hugheses constituted a natural or artificial condition on their land. On this issue, Division One looked to Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217 (1991), which sought to impose liability on a landowner for a criminal assault on an abutting sidewalk. Though factually distinguishable, this case was significant, said the court, because our high court approvingly cited §368 of the Restatement (Second) of Torts, which imposes liability on a landowner who creates an artificial condition posing an unreasonable risk of harm to users of an adjacent highway (or sidewalk). Also relevant, said Division One, is comment b to §363 of the Restatement, which says planted trees constitute a “non-natural or artificial condition.”

To cut to the chase, the Court of Appeals said summary judgment should be reversed because the Hugheses owed a duty of care to Rosengren:

We hold that trees planted by a landowner are an artificial condition on the land, and that an abutting landowner has a duty to exercise reasonable care that the trunks, branches, or roots of trees planted by them adjacent to a public sidewalk do not pose an unreasonable risk of harm to a pedestrian using the sidewalk.

As far as the Hugheses are concerned, they probably view this ruling as a setback because their status as defendants has been restored. So in the sense that these defendants lost, I suppose one could say that Rosengren prevailed.

But at risk of being a spoilsport, I think Rosengren v. Hughes presents a mixed bag for plaintiffs. For one thing, while it’s always nice to have another solvent defendant, public sidewalks are owned by municipalities who are eminently capable of paying a settlement or satisfying a judgment. So if a trip-and-fall plaintiff already has a good negligence claim against the municipality, another deep pocket is unnecessary.

Rosengren v. Hughes also means additional defendants may need to be named in a given case so the municipality can’t point the finger at an empty chair. But this, in turn, complicates both discovery and trial because the plaintiff will be double-teamed by two defense lawyers.

So on balance, if I had my druthers, I would probably prefer to pursue a defective sidewalk claim against only a municipality defendant. Given Division One’s recent ruling, however, that won’t be an option for Joyce Rosengren.

Andrew Bergh, WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases, including professional liability and insurance bad faith.