WPI 140.04 Sidewalks, Streets, Bridges, and Roads—Duty of Governmental Agencies Under Annexatio...

WPI 140.01 (Sidewalks, Streets, Bridges, and Road—Duty of Governmental Entity), must be used with this instruction. In addition, WPI 140.02 (Sidewalks, Streets, Bridges, and Roads—Notice of Unsafe Condition), may be used with this instruction if the plaintiff alleges an unsafe condition that was not created by the governmental entity.

The instruction is drafted for cases involving land that was acquired by annexation. The principles may differ for land acquired in other ways.

Use bracketed phrases depending upon the type of governmental agency.

Washington has a statutory process for creating new cities and annexing county property into an existing city. RCW Chapter 35.02; RCW Chapter 35.13. A statute addresses the status of public right of way during the process and thereafter. RCW 35.02.180. It provides that upon annexation by a city, all county roads “shall revert to the city and become streets” as of the date of incorporation. However, for a period of 60 days, subject to certain conditions, the county shall continue to maintain the roads. RCW 35.02.220(2) (providing that the county shall continue to provide road maintenance for 60 days following incorporation, unless certain road levy taxes are delivered sooner to the city.) The 60-day period is intended to allow time for a new city to create a maintenance department or contract with other agencies.

The Court of Appeals has had occasion to determine “to what extent, if any, does a municipality remain liable for unsafe conditions in [a] roadway after the roadway has been annexed by another municipality?” Olson v. City of Bellevue, 93 Wn.App. 154, 158, 968 P.2d 894 (1998). Even though right of way is transferred at the time of annexation that does not bar the transferring agency's liability as a matter of law. Olson v. City of Bellevue, 93 Wn.App. at 159. Instead, “[w]here a municipality annexes a roadway from another municipality, the annexed municipality's potential liability for any unsafe conditions in the roadway ends after the annexing municipality has been afforded a reasonable opportunity to discover and remedy the unsafe conditions.” Olson v. City of Bellevue, 93 Wn.App. at 163.

In appropriate cases, the issue can be decided on summary judgment. Olson v. City of Bellevue, 93 Wn.App. 154, 163, 968 P.2d 894 (1998). In Olson, the city annexed a county road in 1990. Thereafter, the city performed certain engineering tests on the road, removed one of the county's signs, relocated another sign, installed road delineators, and replaced centerline markers. The plaintiff's car accident occurred in 1992. Olson v. City of Bellevue, 93 Wn.App. at 156–57. The Court of Appeals held that any reasonable fact finder would conclude that the city had a reasonable opportunity to discover and remedy all defects, and that the county's liability was extinguished. Olson v. City of Bellevue, 93 Wn.App. at 164.