WPI 140.02 Sidewalks, Streets, Bridges, and Roads—Notice of Unsafe Condition

WPI 140.01 (Sidewalks, Streets, Bridges, and Road—Duty of Governmental Entity) must be used with this instruction.

Use either or both of the bracketed qualifying phrases relating to causing or anticipating the condition, if applicable, depending on the claims and evidence as to the defendant's direct responsibility for the condition other than actually having created it.

If the claim of negligence includes failure to erect and maintain proper warning signs, and if the circumstances would warrant the correction of the unsafe condition in that manner, use the last bracketed phrase in the first paragraph.

Before a governmental entity may be liable for an unsafe condition it did not create, it must have notice of the condition and a reasonable opportunity to correct it. Wright v. City of Kennewick, 62 Wn.2d 163, 381 P.2d 620 (1963); Nibarger v. City of Seattle, 53 Wn.2d 228, 332 P.2d 463 (1958). The notice required may be actual or constructive. Constructive notice arises if the condition has existed for such a period of time that the governmental entity should have known of its existence by the exercise of ordinary care. Nibarger v. Seattle, 53 Wn.2d 228; Skaggs v. General Elec. Co., 52 Wn.2d 787, 328 P.2d 871 (1958). Rather than attempting to define constructive notice and thereby unduly confuse the jury, this instruction directly sets forth the time requirement and the duty of a governmental entity to inspect its sidewalks, streets, and roads.

The notice requirement does not apply to conditions that are created by the governmental entity or its employees or to conditions that result from their conduct. Batten v. South Seattle Water Co., 65 Wn.2d 547, 398 P.2d 719 (1965); Palmer v. City of Puyallup, 50 Wn.2d 627, 313 P.2d 1114 (1957); Russell v. City of Grandview, 39 Wn.2d 551, 236 P.2d 1061 (1951). Nor does the requirement apply if there was a duty to anticipate unsafe conditions. Argus v. Peter Kiewit Sons' Co., 49 Wn.2d 853, 307 P.2d 261 (1957). If the unsafe condition was created by the governmental entity either directly through its negligence or if it was a condition that the governmental entity should have anticipated, then WPI 140.01 (Sidewalks, Streets, Bridges, and Roads—Duty of Governmental Entity), adequately covers the duty of the governmental entity and there is no need for any special instruction on notice. This instruction, accordingly, is limited by its terms to those situations in which there is no such participation on the part of the governmental entity.