MRSC Inquiries

Liability

• General
• Parks and Recreation
• Snow and Ice Removal

Liability - General



1. Is a hold harmless agreement a guarantee against potential municipal liability?
   

   No. It is not possible to say with absolute certainty that the use of a hold harmless agreement will protect a city against all potential liability. The effect of a hold harmless agreement might ultimately need to be decided by the courts, which would likely look at all the facts surrounding the situation, including the position of the individual who signs the hold harmless agreement.

   
   
   
2. How do some cities limit their liability when renting public facilities for private parties?
   

   Many cities, such as Bellingham, Issaquah, and Kent, include a statement similar to the following in their rental agreements:

   The undersigned agrees to [...] and to save the City harmless for all liability, accident, injury or loss of property resulting from such use of said facility.

   Port Angeles Ordinance No. 2405 added a provision to the municipal code to include the requirement that applicants seeking a permit to use the Vern Burton Memorial Community Center for a special event with significant potential liability, as determined by the director, the risk manager, and the city attorney, shall furnish evidence of liability insurance of not less than $300,000 bodily injury per person and $100,000 property damage per incident, covering any bodily injury or property damage arising out of, or in any way connected with, the use of the city facility by the applicants; except claims for damages or personal injuries solely and proximately caused by the city's negligence in maintaining the facility.

   
   
   
3. Does a city have potential liability for injuries sustained by workers on public works projects if the workers are employed by a contractor?
   

   The issue was raised by the caller after he reviewed wording in Stute v. PBMC, Inc. 114 Wn.2d 454 (1990) and Weinert v. Bronco National Co., 58 Wn.App. 692 (1990). These cases do contain some wording supporting the liability of an owner or developer of property for failure to maintain safe working conditions. Further research indicates that the courts have subsequently only held property owners liable for injuries sustained by workers in limited situations. See, for example, Smith v. Myers, 90 Wn. App. 89, 950 P.2d 1018 (1998). Though that case dealt with a residential property owner, the wording indicates how the courts are approaching this issue:

   A property owner who hires an independent contractor to perform work on the property has a duty to provide a safe workplace for the contractor's employees under the "retained control" exception only if the owner has actual control over the workplace and affirmatively assumes responsibility for project safety. Indicators of actual control and assumption of responsibility include (1) the giving of directions regarding workplace safety or construction techniques, (2) the contractual assumption of responsibility for workplace safety or for the supervision of the contractor's employees, and (3) acts or conduct that affirmatively increases the employees' risk. The per se control of property by an owner who does not meet the RCW 49.17.020(4) definition of "employer" is an insufficient reason alone to apply the "retained control" exception.

   [from the case headnotes]

   All public works contracts should contain provisions making it clear that the contractor is responsible for the safety of all workers on the site and following all WISHA regulations. The situation is not changed merely because the city has a building inspector or project engineer reviewing the contractor's work to see that it meets the contractual requirements.
   
   
   
4. Is there potential liability for speed bump use?
   

   The general view is that speed bumps expose a city to liability. The current trend is to use speed "humps" or "swales," which are less likely to cause problems for motorists and bicyclists. There is an attorney general's opinion on the use of speed bumps on a state highway and MRSC has articles and previously written inquiries available on the subject.

   
   
   
5. Are cities usually liable for accidents that occur on sidewalks because of ice and snow?
   

   No. Normally a city or town is not liable for an accident that occurs due to a slip on a sidewalk because of ice or snow. The general rule is that the natural and ordinary accumulation of snow and ice on a sidewalk does not create municipal liability for injuries which may occur because of the hazardous condition. There could be an unusual circumstance in which the city by its actions some-how increased the risk to pedestrians and this might involve potential city liability but this would not be typical. Also, some cities have enacted local ordinances which specify that it is the duty of the abutting property owner to clear the sidewalk of ice and snow but this is not required in order to relieve the city of potential liability in most situations.

   
   
   
6. Does the filing of a claim with a city toll the statute of limitations for the 60-day claim period?
   

   Yes. The statute of limitations is tolled during the 60-day claim filing period. So a claimant actually has three years plus 60 days to file a lawsuit. This is specified in the last sentence of RCW 4.96.020:

No action shall be commenced against any local governmental entity for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty day period.





Liability - Parks and Recreation



1. Does the recreational immunity statute, RCW 4.24.210, apply if the city charges a fee for the use of water in a water play area?
   

   Probably not. RCW 4.24.210(1) states as follows:

   Except as otherwise provided in subsection (3) of this section, any public or private landowners or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, the cutting, gathering, and removing of firewood by private persons for their personal use without purchasing the firewood from the landowner, hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, hanggliding, paragliding, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, nature study, winter or water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

   A recent court of appeals decision applying this statute, Plano v. Renton, 103 Wn. App. 910 (2000), is instructive. As the Plano court emphasizes:

   The question under Washington's statute, however, is not whether Plano actually paid a fee for using the moorage, or whether Renton actually charged a fee to the person injured. The question is whether Renton charges a "fee of any kind" for using the moorage. This statutory language needs no interpretation as it is unambiguous.

   The statute simply states that there is no immunity if the owner charges a "fee of any kind".

   Thus, if a person is using the water play area and paying a fee for use of the water, there is no immunity under the statute with respect to injuries sustained while using the water play area. Our understanding is that the water play area cannot be used without water, and you need to pay a fee to get water. Thus, there is no immunity under this statute.

   
   
   

Liability - Snow and Ice Removal



1. Several questions on municipal liability associated with snow and ice on sidewalks
   
   1. Can a city or town pass an ordinance that requires property owners abutting sidewalks to keep the sidewalks clear of snow and ice? If so, on what authority?

      Yes. The police power, set out at art. 11, sec. 11 of the state constitution, supports such legislation, as does RCW 35.22.280(7) for first class cities, RCW 35.23.440(1) and (33) for second class cities, RCW 35.27.370(4) and (16) for towns, and RCW 35A.11.020 and 35A.21.160 applying to code cities. See Rivett v. Tacoma, 123 Wn.2d 573, 870 P.2d 299 (1994). Many municipalities, in fact, have adopted ordinances requiring adjacent landowners to maintain their sidewalks.

   2. Does a city or town have a duty to maintain its sidewalks in a safe condition, and if so, on what authority?

      Here are a few cases that set out the basic rule. The court in Nelson v. Tacoma, 19 Wn. App. 807, 577 P.2d 986 (1978), citing a Minnesota decision, states:

      Ordinarily, where there are sidewalks for pedestrian travel which are passable, a municipality is under a very slight duty, if any, to keep its streets in reasonably safe condition for pedestrian travel except at crosswalks; however, if the sidewalks are impassable so that pedestrians must walk in the street, a municipality is under a duty to keep its streets in the vicinity of the said sidewalks in reasonably safe condition for pedestrian travel.

      In Owens v. Seattle, 49 Wn.2d 187, 191, 299 P.2d 560, 61 A.L.R.2d 417 (1956), it was stated:

      A municipality is not an insurer against accident nor a guarantor of the safety of travelers. It is, however, obligated to exercise ordinary care to keep its public ways in a reasonably safe condition for persons using them in a proper manner and exercising due care for their own safety. . . . Where this duty is not fulfilled, the municipality is negligent . . .

      The court in Kennedy v. Everett, 2 Wn.2d 650, 99 P.2d 614 (1940), states:

      [W]hile a city must use all reasonable care in keeping its sidewalks reasonably safe for travel, it is not an insurer.

   3. Does the duty to maintain its sidewalks include snow/ice removal?

      This question can be answered by reference to Nelson v. Tacoma, 19 Wn. App. 807, 808, 577 P.2d 986 (1978):

      As to sidewalks, in 19 E. McQuillin, Municipal Corporations, SS 54.84 (3d ed. 1967), it is stated:

      Ordinarily, snow or ice upon a sidewalk is not to be classed with dangerous obstructions such as a municipality is required to remove. It is generally held that a natural and ordinary accumulation of snow and ice on sidewalks creates no municipal liability for injuries occasioned thereby, unless with respect thereto the municipality is in some manner negligent by disregarding its obligation to exercise ordinary care to keep its sidewalks in fit condition for usual travel. . . .

      . . . Municipal liability may arise if the snowy or icy sidewalk itself was defective, or the ice or snow, formed into ridges, drifts or hillocks, amounted to a dangerous obstruction to travel, the element of knowledge being shown.

      The authorities indicate that the rules of liability vary from state to state. One of the first cases in Washington is Calder v. Walla Walla, 6 Wash. 377, 33 P. 1054 (1893), where the court states at page 378:

      The city is not liable for accidents occasioned by mere slipperiness caused by ice upon the walk. If the ice is not so rough and uneven, or so rounded up, or at such an incline as to make it an obstruction, and to cause it to be unsafe for travel with the exercise of due care, there is no liability. . . .

      . . . [T]here was . . . testimony which showed that the accident was due to the slipperiness and smoothness caused by the ice upon the walk; and the defendant's first instruction, requesting the court to instruct the jury that "mere slipperiness of the sidewalk, occasioned by ice or snow, not being accumulated so as to cause an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby," should have been given, . . . (Citations omitted.)

   4. If a city or town passes an ordinance requiring abutting property owners to remove snow/ice from sidewalks, can they be held liable for failure to enforce such an ordinance?

      As a general rule, no. See, generally, Torres v. City of Anacortes, 97 Wn. App. 64, 981 P.2d 891 (1999)and Honcoop v. State, 111 Wn.2d 182, 759 P.2d 1188 (1988). 91 (1999).

   5. If a city or town passes an ordinance described in # 1 above, can they apply it only to the downtown business district (thus distinguishing/discriminating between business owners and residential property owners)?

      We are not aware of any specific authority, but it appears that distinguishing residential neighborhoods from a downtown area is reasonable. There clearly is more pedestrian and vehicular traffic downtown than there is in a residential area and thus there is a greater need for the city to regulate. In addition, since the business owners have potential liability, one would think that they would not object too loudly.