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Garabedian v. Youngren12/26/2000
UNPUBLISHED
Absent a genuine issue of material fact that the owner of property abutting a sidewalk where an injury occurred had notice of the existence of a hole that caused the injury, summary judgment is proper. Because there was no such issue here, and the word 'appurtenances' in the building plans did not impose a duty on the property owner abutting the sidewalk to maintain it, we affirm the summary dismissal of this personal injury action.
Veronica Garabedian sustained injuries when she tripped on a hole in the asphalt walkway abutting property owned by James and Kathleen Youngren d/b/a Bakun Associates (Bakun). The walkway runs parallel to Alaskan Way, and is located on property the City of Seattle owns. Portions of the walkway are adjacent to two sets of stairs. The stairs lead up to a brick and concrete plaza situated in front of the Chicken and Egg Furniture Store located in the Bakun Building. Bakun owns the Bakun building and the furniture store.
In 1990, Bakun obtained a special use permit from the City to build the concrete plaza and stairs and repave the walkway. Garabedian fell on this walkway.
Garabedian sued Bakun, the Youngrens, and Chicken & Egg Productions, Inc. d/b/a Chicken & Egg Furniture Store. The trial court granted Bakun's motion for summary judgment, and denied Garabedian's motion for reconsideration.
Garabedian appeals.
Duty
Garabedian argues that Bakun had a duty to maintain the walkway because it created the hole in the walkway. The record does not support this assertion.
We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We consider all facts and reasonable inferences in the light most favorable to the nonmoving party. We review questions of law de novo.
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Once that burden is met, the burden shifts to the party with the burden of proof at trial to make a showing sufficient to establish the existence of an element essential to that party's case. If the claimant fails to meet that burden, the trial court should grant the motion because there can be no genuine issue of material fact given that a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
To prove negligence, a plaintiff must establish the existence of a duty, a breach of that duty, resulting injury , and proximate causation between the breach of the duty and the resulting injury. The existence of a legal duty is a question of law.
The City of Seattle has the primary duty to maintain sidewalks in a safe condition. The duty to maintain and repair sidewalks remains with the City even if private parties built the sidewalks. Where an abutting property owner causes or contributes to a defect in the city sidewalk, he or she is liable for injuries that are proximately caused by the defect.
Here, Garabedian claims that Bakun caused the hole in the walkway. This theory is based, in turn, on the argument that Bakun's independent contractor, Reed Construction, caused the soil beneath the sidewalk to subside. To support this claim, Garabedian uses the following deposition testimony of John Hunter, Reed's president:
{Counsel:} All right. So seeing the color photographs that you see there now, how is it from a contracting or engineering standpoint would it be that these, that this depression occurred?
{Hunter:} It would have been a settlement of the ea
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