Appeal fro King County Superior Court. Docket No: 11-2-02990-5. Date filed: 08/03/2012. Judge signing: Honorable Carol A. Schapira.
Edward J. Hemingway (of Buckley & Associates ), for appellant.
Peter S. Holmes, City Attorney, and Jeffrey Cowan and Tara Gillespie, Assistants, for respondent.
AUTHOR: Linda Lau, J. Stephen J. Dwyer, J., C. Kenneth Grosse, J. concurred.
[179 Wn.App. 158] Lau,
¶ 1 The-Anh Nguyen sued the city of Seattle (City) for personal injuries and damages he sustained when the rented U-Haul truck he was driving struck a portion of a tree in a planting strip adjacent to Olson Place Southwest in Seattle. Nguyen appeals the trial court's decision after a bench trial finding the City breached no duty to maintain the roadway in reasonably safe condition and no act or omission by the City proximately caused the accident. Because substantial evidence supports the court's findings of fact and the findings support its conclusions of law, we affirm the judgment in the City's favor.
[179 Wn.App. 159] FACTS
¶ 2 On August 25, 2008, The-Anh Nguyen was driving a rented U-Haul truck on Olson Place Southwest in Seattle, traveling 25 to 30 miles per hour. The truck was a 1997 Ford with a box-like cargo compartment extending over the passenger cab. It measures 11 feet tall, 8 feet wide, and 22 ½ feet long, with a 161 inch wheel base. Two of Nguyen's friends rode with him in the cab. The weather was clear and the roadway dry and unobstructed.
¶ 3 Olson Place Southwest is an arterial street with two northbound lanes, two southbound lanes, and a center turn lane. Nguyen was driving northbound downhill in the curbside lane. Around 2:25 pm, " the top right front corner of the truck's cargo box struck an overhanging tree branch ... where the large branch of the tree connects to the trunk." The tree was planted in the planting strip running along Olson Place Southwest. The force of the impact damaged the cargo box's upper corner and uprooted the tree, cleaving it in such a way that the branch and part of the trunk fell onto the roadway behind the truck. The court found:
Because of the impact, the truck drove up onto the curb, as Mr. Nguyen and the passenger next to him struggled with the steering wheel to control the truck. The
truck travelled about [179 Wn.App. 160] 40 feet on the planting strip, its right rear bumper nicking another tree before returning to the roadway. The court did not fault Mr. Nguyen's driving; he did not leave the roadway before impact.
¶ 4 The same day, a Seattle Department of Transportation (SDOT) crew cut up and removed the debris and damaged tree. The SDOT crew also put the uprooted root ball back into the ground to fill the open hole in the planting strip.
¶ 5 The tree was one of many planted along Olson Place Southwest by SDOT, which maintains all city-owned street trees. To report unsafe or defective trees, SDOT provides an e-mail address and telephone number on its website. Each year SDOT receives 3,500 to 5,000 complaints regarding its trees. The complaints come from citizens, public utilities, police, and street users, including King County Metro, whose buses occasionally strike tree branches overhanging streets on its transit routes. A photograph of the tree Nguyen struck, taken one year before the accident, " shows the tree trunk leaning toward the roadway, but neither low-hanging branches nor damage to the tree that might have been caused by passing vehicles. (Ex. 50)."
¶ 6 Photos showed Metro buses using routes on Olson Place Southwest at the location of the accident. Nguyen's expert agreed that buses are 11 feet or taller. King County Metro never complained to SDOT about the tree at issue impacting its buses, although it has complained about other trees in the area. SDOT received no complaints about this specific tree before the accident.
¶ 7 Nguyen filed a personal injury lawsuit against the City in June 2012. He alleged the City was negligent because it failed to properly maintain the tree branch that struck the U-Haul. The City denied the allegations and asserted affirmative defenses, including contributory negligence and failure to mitigate damages.
[179 Wn.App. 161] ¶ 8 After the court denied Nguyen's partial summary judgment motion as to the City's liability, the parties proceeded to a bench trial. In its trial brief, the City argued in part that Nguyen offered no evidence that the City had actual or constructive notice that the tree at issue posed a hazard to street users. In response, Nguyen moved in limine to preclude the City from arguing lack of notice. Nguyen claimed that lack of notice was an affirmative defense that the City waived by failing to plead it. The City responded that notice is not an affirmative defense but an element of the plaintiff's case in chief. The court denied this motion.
¶ 9 The relevant trial testimony established that the City planted the trees along Olson Place Southwest in 1976, including the tree Nguyen struck. That tree is a " [r]easonably fast growing" species. Report of Proceedings (RP) (July 5, 2012) at 476. The City had no formal inspection program for tree branch clearance over roadways. Instead, it relied on citizen complaints. The tree at issue here was larger and closer to the roadway than many of the other trees planted along Olson Place Southwest. Nguyen's exhibit 45, admitted at trial, consists of service requests the City received regarding other trees along Olson Place Southwest from 1999 to 2008.
¶ 10 After a three-day bench trial, the court entered extensive findings of fact and conclusions of law. It also expressly incorporated its oral rulings made after trial and during the hearing to present the findings and conclusions. The trial court made the unchallenged findings summarized above regarding the accident's cause. The court also made the following challenged findings:
6. Prior to August 24, 2008, SDOT had received no complaints regarding the tree struck by Mr. Nguyen's rental truck.
[179 Wn.App. 162] 8. There is no evidence on the condition of the tree in question that would have conferred constructive notice of a danger to vehicles using Olson Pl. SW.