WPI 140.01 Sidewalks, Streets, Bridges and Roads—Duty of Governmental Entity

Use bracketed material as applicable.

A revised or separate instruction may be needed to address the standards that apply to particular types of cases, such as cases involving warning signs or guardrails. See the Comment below.

If the facts of a case involve an issue of whether a governmental entity took reasonable steps to correct or eliminate a hazardous roadway condition, use WPI 140.01.01 (Duty of Governmental Entity to Remove or Correct a Hazardous Roadway Condition) with this instruction. See the Comment below.

Background. This instruction was approved in substantially this form in Keller v. City of Spokane, 146 Wn.2d 237, 44 P.3d 845 (2002).

The WPI Committee has revised the instruction set forth in Keller in two ways. First, the WPI Committee has included the bracketed word “design” in this instruction to reflect case law that focuses on highway design issues. See Owen v. Burlington Northern and Santa Fe R.R. Co., 153 Wn.2d 780, 108 P.3d 1220 (2005); Xiao Ping Chen v. City of Seattle, 153 Wn.App, 890, 223 P.3d 1230 (2009). Second, the WPI Committee has revised the instruction set forth in Keller to include bridges and sidewalks in addition to roads, streets and highways. See Berglund v. Spokane County, 4 Wn.2d 309, 103 P.2d 355 (1940) (bridges); Millson v. City of Lynden, 174 Wn.App. 303, 306, 298 P.3d 141 (2013) (sidewalks).

Scope of duty. In adopting this instruction, the Keller court rejected the argument that a municipality's duty is limited to only non-negligent users of its roadways. Instead, the court held that a municipality's duty to keep its roadways in a reasonably safe condition extends to all persons regardless of whether or not the person is negligent or fault-free: “We therefore hold that a municipality owes a duty to all persons, whether negligent or fault-free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.” Keller v. City of Spokane, 146 Wn.2d at 249.

In Owen v. Burlington Northern and Santa Fe R.R. Co., 153 Wn.2d 780, 787–88, 108 P.3d 1220 (2005), the Washington Supreme Court described a municipality's duty as follows:

A governmental entity's duty may include designing, constructing or maintaining reasonably safe roadways or keeping them in proper repair so that they are reasonably safe for ordinary travel. This duty may also include a duty to eliminate or warn of hazards, the removal of snow and ice from public roadways, or the removal of roadside hazards. See Wuthrich v. King County; 185 Wn.2d 19, 27, 366 P.3d 926, 930 (2016) (overgrown roadside vegetation); Owen v. Burlington N. & Santa Fe R.R., 153 Wn.2d 780, 108 P.3d 1220 (2005) (eliminating hazards); McCluskey v. Handorff-Sherman, 125 Wn.2d 1, 6, 882 P.2d 157 (1994) (warning signs); Boeing Co. v. State, 89 Wn.2d 443, 572 P.2d 8 (1978) (low bridge); Wright v. City of Kennewick, 62 Wn.2d 163, 381 P.2d 620 (1963) (removal of snow and ice); Nelson v. City of Tacoma, 19 Wn.App. 807, 577 P.2d 986 (1978) (snow and ice on sidewalk).

Although relevant to a determination of whether a duty has been breached, evidence of a particular physical defect or violation of a roadway safety measure is not essential to a claim that a governmental entity breached a duty of care owed to travelers. Owen v. Burlington N. & Santa Fe R.R., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005) (“[l]iability for negligence does not require a direct statutory violation, though a statute, regulation, or other positive enactment may help define the scope of a duty or the standard of care.”) See also Xiao Ping Chen v. Seattle of City, 153 Wn.App. 890, 908, 223 P.3d 1230 (2009).

As recently reaffirmed in Wuthrich v. King Cty., 185 Wn.2d 19, 27, 366 P.3d 926, 930 (2016), “[w]hether the roadway was reasonably safe and whether it was reasonable for the County to take (or not take) any corrective actions are questions of fact that must be answered in light of the totality of the circumstances.” See also Xiao Ping Chen v. City of Seattle, 153 Wn. App. 890, 908, 223 P.3d 1230 (2009).

Under Owen, a governmental entity's duty to eliminate an inherently dangerous or misleading condition is part of the overarching duty to provide reasonably safe roads for the people of this state to drive upon. Owen v. Burlington N. & Santa Fe R.R, 153 Wn.2d 780, 787–88, 108 P.3d 1220 (2005). A separate instruction may be needed if there is an issue of whether a governmental entity took reasonable steps to correct or eliminate a hazardous roadway condition. This is particularly true if a hazardous roadside condition may make a road, street, sidewalk or bridge unsafe for ordinary travel. In such cases, this instruction should be supplemented with WPI 140.01.01 (Duty of Governmental Entity to Remove or Correct a Hazardous Roadway Condition).

For some cases, the pattern instruction may also need to be revised or supplemented with a separate instruction. For example, case law analysis of issues relating to warning signs or guardrails sometimes differs from the traditional analysis. See below with regard to warning sign cases. The bracketed options in the pattern instruction may need to be expanded, and other revisions may be needed, to account for any more particularized analysis in the case law.

Limits on duty. Although a governmental entity is not required to make its public streets, roads, and sidewalks absolutely safe, a governmental entity must use ordinary care to provide against such dangers to the traveling public as may reasonably be anticipated having due regard to the character of travel, the incidental purposes for which the street, highway, or sidewalk may be lawfully used, and the nature of possible dangers at the point in question. Berglund v. Spokane County, 4 Wn.2d 309, 358–59, 103 P.2d 355 (1940). “[T]he duty [to maintain a roadway in a reasonably safe condition does not] require a [county] to ‘anticipate and protect against all imaginable acts of negligent drivers’ for to do so would make a [county] an insurer against all such acts.” Ruff v. King County, 125 Wn.2d 697, 705, 887 P.2d 886 (1995) (holding that this duty of care does not require a governmental entity to update every road and roadway structure to present-day standards; that is, “there is no duty to make a safe road safer”).

Ordinary travel. Modes of ordinary travel include not only vehicular travel, but also bicyclists, as well as pedestrians in crosswalks and on sidewalks. See O'Neill v. City of Port Orchard, 194 Wn.App. 759, 772, 375 P.3d 709 (2016), review denied 187 Wn.2d 1003 (2017) (“We hold that cycling is a mode of “ordinary travel,” and therefore, the City has a duty to maintain its roads for bicycle travel”); Millson v. City of Lynden, 174 Wn.App. 303, 306, 298 P.3d 141 (2013) (sidewalks); Xiao Ping Chen v. City of Seattle, 153 Wn.App. 890, 223 P.3d 1230 (2009) (crosswalks).

Warning signs. If there is an inherently dangerous or deceptive condition in the roadway itself, the duty of ordinary care may include the duty of erecting and maintaining proper warning signs where necessary: “This obligation includes posting warning signs when required by law or when the State has actual or constructive knowledge that the highway is inherently dangerous or of such a character as to mislead a traveler exercising reasonable care.” McCluskey v. Handorff-Sherman, 125 Wn.2d 1, 6, 882 P.2d 157 (1994); see also Provins v. Bevis, 70 Wn.2d 131, 138, 422 P.2d 505 (1967); Meabon v. State, 1 Wn.App. 824, 827–828, 463 P.2d 789 (1970).

Federal manual. RCW 47.36.020 requires that the State adopt specifications for a uniform system of traffic control devices for public highways that so far as possible conform to the system current as approved by the American Association of State Highway Officials (AASHTO) and as set out in the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) (http://mutcd.fhwa.dot.gov/index.htm), published by the Federal Highway Administration for compliance by the states as a condition of federal funding. The Washington state secretary of transportation adopted the MUTCD with certain revisions. See WAC Chapter 468-95.

RCW 36.86.040 requires each county legislative authority to erect signs that conform with this standard. The MUTCD in many cases is deemed to have the force of law. Kitt v. Yakima County, 93 Wn.2d 670, 673–74, 611 P.2d 1234 (1980); Schneider v. Yakima County, 65 Wn.2d 352, 357, 397 P.2d 411 (1964). Failure to comply with uniform state traffic control standards may be evidence of negligence. Wojcik v. Chrysler Corp., 50 Wn.App. 849, 751 P.2d 854 (1988). If a case involves a violation of the MUTCD, it may be appropriate to draft an instruction consistent with WPI 60.01 (Statute, Ordinance, or Administrative Rule) and with WPI 60.03 (Violation of Statute, Ordinance, Administrative Rule, or Internal Governmental Policy—Evidence of Negligence).