where trial court has weighed the evidence, “[w]e will not substitute our judgment for that of the trial court, even if we might have resolved the factual dispute differently”
How later courts described this case
- where trial court has weighed the evidence, “[w]e will not substitute our judgment for that of the trial court, even if we might have resolved the factual dispute differently”
- “Negligence requires proof of four elements: (1) the existence 13 of a duty to the person alleging negligence, (2) breach of that duty, (3) resulting injury, and (4) 14 proximate cause between the breach and the injury.”
- weight of evidence questions for the trial court
- actual or constructive notice not even applicable if the governmental entity created an 16 unsafe condition or if it was a condition the entity should have anticipated
Written by the judges who cited it.
The opinion
Grosse, J.
¶31 (concurring) I concur in the result and agree that the evidence here is insufficient to establish the city of Seattle’s negligence. But I disagree with the majority’s analytical approach, which incorrectly imposes a notice requirement to establish a negligence claim against a government entity. As the Supreme Court has recently reiterated, “governmental entities . . . are liable for their ‘tortious conduct’ to the ‘same extent’ as ‘a private person or *174 corporation.’ ” 18 “Consequently, a plaintiff claiming that a municipality has acted negligently may recover after proving ‘the existence of a duty, a breach thereof, a resulting injury, and proximate causation between the breach and the resulting injury.’ ” 19 Notice is not an element of such a claim.
¶32 While foreseeability is a component of the duty analysis, 20 “ ‘the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable. Rather, the question is whether the actual harm fell within a general field of danger which should have been anticipated.’ ” 21 Simply put, the focus remains on establishing the government’s duty and a breach thereof, not on whether the governmental entity had notice of the danger. And it may well be that with modern advances and technology, municipalities may more easily anticipate such a general field of danger.
Washburn v. City of Federal Way, 178 Wn.2d 732, 753 , 310 P.3d 1275 (2013) (quoting RCW 4.92.090; ROW 4.96.010).
Washburn, 178 Wn.2d at 753 (internal quotation marks omitted) (quoting Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 605 , 257 P.3d 532 (2011)).
“[T]he existence of a duty turns on the foreseeability of the risk created. If a risk is foreseeable, an individual generally has a duty to exercise reasonable care to prevent it. If a risk is not foreseeable, an actor generally has no duty to prevent it .’’Parrilla v. King County, 138 Wn. App. 427, 436 , 157 P.3d 879 (2007) (citations omitted).
Rikstad v. Holmberg, 76 Wn.2d 265, 269 , 456 P.2d 355 (1969) (quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 321 , 255 P.2d 360 (1953)).