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WPI 135.01 Duty of Owner or Occupier of Property Adjacent to a Public Way

6 WAPRAC WPI 135.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 135.01 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part X. Owners and Occupiers of Land

Chapter 135. Abutting Property Owner

WPI 135.01 Duty of Owner or Occupier of Property Adjacent to a Public Way

An [owner] [occupier] of property adjacent to a public [road] [street] [sidewalk] has a duty to exercise ordinary care in connection with the use of the property so as not to make, or create conditions that make, the adjacent way unsafe for ordinary travel or to cause injury to persons using the public [road] [street] [sidewalk].

NOTE ON USE

Use bracketed material as applicable.

COMMENT

An owner or occupier of land abutting a highway “must exercise reasonable care to maintain his property so as not to injure those using the adjacent highway.” Mills v. Orcas Power and Light, 56 Wn.2d 807, 818–19, 355 P.2d 781 (1960). However, Washington has adopted the position of the Restatement (Second) of Torts § 368 (1965) that the unsafe condition must be artificial and not natural in order for a duty to be created. Rosengren v. City of Seattle, 149 Wn.App. 565, 205 P.3d 909 (2009) (planting of trees by adjacent property owner, which caused buckling of sidewalk, is an artificial condition). The Rosengren court also approved of comment (b), § 363 of the Restatement (Second) of Torts (1965), which provides:

“Natural condition of the land” is used to indicate that the condition of land has not been changed by any act of a human being, whether the possessor or any of his predecessors in possession, or a third person dealing with the land either with or without the consent of the then possessor. It is also used to include the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them. On the other hand, a structure erected upon land is a non-natural or artificial condition, as are trees or plants planted or preserved, and changes in the surface by excavation or filling, irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces.

Rosengren v. City of Seattle, 149 Wn.App. 565, 574, 205 P.3d 909 (2009).

Albin v. National Bank of Commerce, 60 Wn.2d 745, 375 P.2d 487 (1962), is a pre-Restatement (Second) of Torts case adopting a distinction between artificial and natural conditions. It also contains a discussion of the potential possible distinction between rural and urban settings.

An abutting property owner or occupier is generally not responsible for injuries to a motorist using a public highway directly adjacent to a parking strip owned by the city, even when landscaping is maintained by the property owner. Unless the abutting owner or occupier makes special use of the parking strip, he or she is not a possessor of the parking strip and, therefore, has no liability. Coulson v. Huntsman Packaging Products, 121 Wn.App. 941, 92 P.3d 278 (2004). However, if the abutting owner or occupier makes “special use” of the parking strip, such as a shopkeeper displaying wares, the shopkeeper owes a duty of care to someone injured in the area “immediately surrounding” the area of the special use. Hoffstatter v. City of Seattle, 105 Wn.App. 596, 602, 20 P.3d 1003 (2001).

The duty is imposed only when correction of the unsafe condition is within the owner's or occupier's control or responsibility. Re v. Tenney, 56 Wn.App. 394, 396–97, 783 P.2d 632 (1989).

[Current as of September 2018.]

End of Document