Opinion
No. 56975-9-I.
December 11, 2006.
Appeal from judgments of the Superior Court for Skagit County, No. 04-2-00145-8, Michael E. Rickert, J., entered August 18 and September 2, 2005.
Counsel for Appellant(s), Earl Francis Angevine, Attorney at Law.
Counsel for Defendant(s), Earl Francis Angevine, Attorney at Law.
Counsel for Respondent(s), Steven Lewis Thorsrud, Attorney at Law.
Authored by Ronald Cox Concurring: WILLIAM BAKER STEPHEN J DWYER.
Affirmed by unpublished opinion per Cox, J., concurred in by Baker and Dwyer, JJ.
A municipality may be liable in negligence for an unsafe condition in its streets where it has (a) notice of the condition which it did not create and (b) a reasonable opportunity to correct the condition. Here, there is no genuine issue of material fact showing either constructive notice by the City of Mount Vernon or a reasonable opportunity to correct the condition. Thus, the trial court properly granted summary judgment to the City. We affirm.
Wright v. City of Kennewick, 62 Wn.2d 163, 167, 381 P.2d 620 (1963) (citing Niebarger v. City of Seattle, 53 Wn.2d 228, 332 P.2d 463 (1958)).
Patricia Pienta fractured her ankle when she stepped into a curbside depression and fell while getting into her truck which was legally parked on a city street in Mount Vernon. She sued the City of Mount Vernon for negligence. Mount Vernon moved for summary judgment on the basis that it had no duty to Pienta, that the depression was not an unreasonably dangerous condition, and that it lacked notice of the depression's existence. The court delayed ruling on the motion, pending Pienta obtaining an expert witness to testify to certain matters. Following submission of the expert's testimony, Mount Vernon moved to strike the declaration and deposition of the expert. The trial court granted the motion to strike and Mount Vernon's motion for summary judgment.
Pienta appeals.
EXPERT TESTIMONY
Pienta argues that the trial court erred in striking the testimony of Mark Lawless, her expert witness. We disagree.
A defendant in a civil action is entitled to summary judgment when he or she shows that there is an absence of evidence supporting an element essential to the plaintiff's claim. The defendant may support the motion by challenging the sufficiency of the plaintiff's evidence regarding any material issue. The inquiry then shifts to the plaintiff, who may not rely on the allegations in the pleadings but must set forth specific facts by affidavit or otherwise showing that a genuine issue exists. Such an affidavit must be based on personal knowledge admissible at trial and not merely on conclusory allegations, speculative statements, or argumentative assertions.
Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992); see also Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
Las, 66 Wn. App. at 198.
Id.; Young, 112 Wn.2d at 225-26.
Las, 66 Wn. App. at 198.
We review a summary judgment order de novo, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party. We review de novo a trial court's evidentiary rulings made in conjunction with a summary judgment motion.
Khung Thi Lam v. Global Med. Sys., 127 Wn. App. 657, 661 n. 4, 111 P.3d 1258 (2005).
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
An expert's opinion is admissible if the witness is properly qualified, relies on generally accepted theories, and the testimony is helpful to the trier of fact. An expert's affidavit submitted in opposition to summary judgment must be factually based and must affirmatively show that the affiant is competent to testify to the matters stated therein. An expert's opinion that is only based on a conclusion or that is based on assumptions does not satisfy the summary judgment standard.
Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939 (2004).
Lilly v. Lynch, 88 Wn. App. 306, 320, 945 P.2d 727 (1997).
Id.
Here, the trial court continued the summary judgment hearing to give Pienta an opportunity to procure expert testimony showing that the depression was an unreasonably dangerous condition. At the second hearing, in response to Mount Vernon's summary judgment motion, Pienta submitted the affidavit and deposition testimony of Mark Lawless. Pienta hired Lawless to testify that the depression constituted an unreasonably dangerous condition, and that it had existed long enough for the City to have had constructive notice of its existence. Lawless did not expressly testify whether there was sufficient time for the City to have corrected the condition.
Mount Vernon moved to strike Lawless' testimony on the grounds that Lawless lacked the necessary qualifications to testify on those issues, and that his opinions lacked foundation and were impermissible legal conclusions. The trial court granted the motion.
The first level of our inquiry is whether the trial court properly struck the testimony of Lawless for lack of qualifications as an expert witness. Because this is a review of a summary judgment evidentiary ruling, our review of this question is de novo.
Lawless is president of Construction Systems Management, Inc. and vice-president of Lawless Construction. He is a registered contractor with a master's degree in civil engineering. Lawless' resume lists his areas of expertise as "Construction Claims Analyst; Construction Management and Safety; Professional Estimator; Licensed General Contractor." He testifies frequently in construction defect cases involving buildings and other structures, but has never testified in a case related to the maintenance of city streets. Lawless has never worked for a municipality, except in the role of a consultant concerning the constructability of buildings.
In his declaration, Lawless stated that the depression was a hazardous condition and that "it had . . . existed for a considerable and sufficient period of time so that the City of Mount Vernon had constructive notice of its existence."
He based his opinion on the size of the depression stating:
A hole of this size is sometimes found to be the cause of injuries resulting from someone tripping or falling because of the hole. The fact that [Pienta] fell and seriously injured herself in the hole is evidence of its hazardous condition.
Clerk's Papers at 71.
Lawless based his opinion about constructive notice on his conclusion that the depression was caused by spalling. According to Lawless, spalling is a condition whereby moisture accumulates between the curb and the street. When the moisture freezes during the winter months, it expands, causing a separation of the layers of the street creating potholes. Relying on weather records, Lawless testified:
[T]he last significant freezing weather prior to the date of the accident was . . . approximately three months prior to the date of the accident. This indicates that the defective condition likely existed for a significant period of time prior to [the date of the accident].
Id.
Lawless' experience related to his testimony comes from his work with construction crews that have torn up portions of city streets to put in storm sewers and water taps to buildings, and also have replaced portions of the street. In addition, he has been involved in the construction of parking lots connected with buildings his company has constructed. Pienta argues that Lawless is qualified in part because "[i]t is not difficult to evaluate street paving, since it is a relatively simple concept and there are not that many materials to choose from." Moreover, Pienta argues that Lawless has evaluated street paving before and his business, Lawless Construction, "has actually done street paving."
However, in one of the two instances Pienta points to, Lawless was not actually involved in the paving process, and in the other, he was not actually present. In any event, Lawless' expertise on paving is irrelevant. The issue is not whether street paving techniques were properly employed, or the correct materials were used. The narrow question is whether the pothole had existed for sufficient time for the City to have constructive notice of its existence and a reasonable opportunity to correct the condition. As Mount Vernon correctly points out, "This case is not about how to patch a hole in an asphalt roadway, but [rather,] how to recognize when the need arises to do so."
When asked if he held himself out as an expert in maintenance of city streets, Lawless replied:
A. Conceptually, yes.
Q. What does conceptually mean?
A. That means from a management perspective.
Q. Have you ever worked for a city and worked on patching city streets?
A. No.
Q. Tell me, conceptually, how you're an expert in the management side of patching city streets?
A. Well, the evaluation of defective construction and defects in construction is a major part of my business. As recently as last week, I was in Portland, Oregon, evaluating an entire parking lot and the asphalt conditions associated with that and we routinely get involved — by that I mean once a month at least — in the evaluation of asphalt parking lots associated with condominiums, for purposes of construction defects, whether it's unraveling, spalling, potholes, alligatoring, checking cracks, and we're asked to evaluate those parking — those asphalt conditions to determine the underlying reason for those conditions.
Clerk's Papers at 148.
Lawless was unable to articulate a meaningful basis for his testimony regarding the standard of care the City was required to meet. He stated that it was "[t]o fix potholes on a regular basis, especially in the spring. May and June are typical good months, April sometimes too depending on whether it's eastern or western Washington." He based his knowledge on the fact that he had observed trucks patching the streets during those months.
In addition, when asked in deposition what a typical city looks for in terms of pothole size or location in order to determine if it needs repair, Lawless responded that it depended on the pothole's proximity to either pedestrian or vehicular traffic. He was not able to articulate a basis for that opinion.
In short, Lawless had no basis to offer an opinion on the question of constructive notice of the City. The court properly struck his testimony from the record.
At oral argument in this appeal, Pienta argued that other evidence supports the existence of a genuine issue of material fact regarding notice. Specifically, she suggests that testimony of Darryl Tawes, a former street department supervisor who had worked for the Mount Vernon Public Works Department for more than 30 years, supports her claim.
Tawes testified that maintenance crews performed routine visual inspections of the city streets once a week throughout the rainy season and once a month during the summer. Street sweepers working downtown twice a week also "report to the maintenance crew if there are significant conditions, including potholes, that need attention." Tawes also testified that the City dealt with defects in the streets in three ways: a large pothole would be repaired within 48 hours; smaller cracks or potholes were put on a schedule for repair (usually within two weeks); and other minor depressions were watched until they reached a point where repair was needed.
Pienta argues that because the City performed inspections, this supports her assertion that the City had constructive notice of the pothole. This argument relies on Lawless' inadmissible testimony that the pothole existed for several weeks before the accident occurred. However, there is no other evidence in the record to support this assertion. Also, Tawes testified that the pothole, which he viewed after the accident, was one he would not consider significant, and which would not have been put on the "watch" list. Nothing in the record, outside of Lawless' opinion, raises a genuine issue of fact that Tawes' assessment was inappropriate, or that the City could have, or should have, acted differently.
Furthermore, Lawless presented no factual basis for his opinion that the pothole was one which, under the City's standards, should have been repaired within two weeks of discovery. Lawless testified that the pothole constituted a hazardous condition to pedestrians. He based his opinion on the shape of the pothole stating:
I mentioned the tiered, multi-layered condition [of the pothole], and I don't represent myself to be a human factors expert . . . but just based on practical experience . . . when you encounter even a marginal rise in a level surface, there is a tendency to trip or stumble and I believe that's the condition that occurred here.
Clerk's Papers at 171-72.
Lawless admitted that his opinion was based on his personal belief, not on expert opinion. This is not sufficient to meet the qualifications of expert testimony.
In short, the court properly stuck Lawless' declaration from consideration.
CONSTRUCTIVE NOTICE
Pienta argues that the trial court erred in granting Mount Vernon's motion for summary judgment. We disagree.
To establish liability on the part of a governmental entity for its failure to maintain its roads in a reasonably safe manner, the City must have (1) notice of the dangerous condition which it did not create, and (2) a reasonable opportunity to correct it. Notice may be actual or constructive. To prove constructive notice, the plaintiff must show that the specific unsafe condition existed for such time as to afford the defendant sufficient opportunity, in the exercise of ordinary care, to make a proper inspection and remove the danger.
Wright, 62 Wn.2d at 167.
Iwai v. State, 129 Wn.2d 84, 96, 915 P.2d 1089 (1996).
Id.
Pienta does not argue that Mount Vernon had actual notice of the pothole. Rather, she claims it had constructive notice and was therefore negligent in failing to repair it. However, nothing in the record supports Pienta's assertion that the City had constructive notice of the defect, other than the declaration of Mark Lawless, which was properly stricken. Further, nothing in the record supports the contention that Mount Vernon failed to exercise ordinary care to discover the defect and repair the condition.
There is no genuine issue of material fact regarding constructive notice to the City, and it was entitled to summary judgment as a matter of law.
Because of our resolution of the summary judgment issue on the above bases, we need not reach the arguments of the parties whether or not the City had a duty to Pienta.
We affirm the summary judgment order.
WE CONCUR: