Twyla Kill, Et Ano, Appellants V. City Of Seattle, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TWYLA KILL and TERRY KILL,
individually and the marital community
comprised thereof,
Appellants,
v.
CITY OF SEATTLE, a Washington
municipal corporation,
Respondent.
No. 70767-1-1
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UNPUBLISHED OPINION
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FILED: August 25, 2014
Appelwick, J. — Kill slipped and fell on a wet, smooth metal rim of a utility cover
in a downtown Seattle sidewalk. 	She sued the City, alleging that the utility cover rim
was unreasonably dangerous. 	Kill relied on expert testimony about the slip-resistance
of the rim measured by a tribometer. 	However, the tribometer calibrations fell outside
the confidence interval specified 	by the manufacturer. 	As 	a 	result, 	the trial court
excluded the slip-resistance testimony as unreliable and unhelpful to the jury under ER
702. 	The trial court held that the expert's remaining testimony was essentially that
metal is slippery when wet, which is common knowledge and did not create a genuine
issue of fact. 	The trial court accordingly dismissed on the City's motion for summary
judgment. We affirm.

No. 70767-1-1/2
FACTS
On November 13, 2009, Twyla Kill was walking along a sidewalk in downtown
Seattle around 1:30 p.m. She recalled that it was raining at the time.1 	At the corner of
Fifth Avenue and Pike Street, Kill slipped on the outer rim of a metal utility cover and
fell. 	Kill was injured as a result. 	She and her husband sued the city of Seattle (City),
alleging that the rim was unreasonably dangerous.
The 	utility 	cover—also 	known 	as 	a 	handhole—is 	diamond 	plated 	and 	is
surrounded by a smooth, two-inch metal rim. 	The City owns the utility cover and it is in
the City right of way. 	The City did not know when the utility cover was installed, but it
was likely "in 1989 (when the Bank Centre building was completed) or before." 	There
were no prior complaints about the specific utility cover or other similar utility cover rims.
Kill hired Joellen Gill as an expert to conduct tests and testify about the condition
of the metal rim. 	To do so, Gill used an English XL Variable Incidence Tribometer, an
instrument that measures the coefficient of friction, or "slip-resistance" of a surface. 	Gill
used the tribometer to conduct two slip-resistance tests of the utility cover rim: the first
in February 2011 and the second in June 2013.
Different standards for tribometer validation and calibration were in effect at the
time of each of Gill's field tests. 	Prior to September 2006, the American Society for
1 Kill submitted a weather report stating that it rained 0.33 inches on November
13, 2009. 	However, the hourly precipitation column is cut off in the record. 	In its order
denying Kill's motion for reconsideration, the trial court noted that the same weather
report can be found online. 	The online weather report showed that the last measurable
rain fell at 11:53 a.m. (0.06 of an inch) and no rain fell for the rest of the day. 	This
contradicts Kill's statement that it was raining at the time she slipped and fell. 	But, for
the purposes of summary judgment, the trial court accepted Kill's contention that it was
raining when she slipped.

No. 70767-1-1/3
Testing and Material (ASTM) F1679 standard provided instructions for how to use a
tribometer. 	However, the ASTM withdrew the F1679 standard in September 2006 and
did not adopt a new standard for five years.
In March 2011, the current standard for tribometer validation and calibration,
ASTM F2508, went into effect. 	ASTM F2508 states that "[vjalidation shall be performed
by walkway tribometer suppliers or independent testing facilities]." 	It defines "supplier"
as "any individual, agent, company, manufacturer, or organization responsible for the
walkway tribometer prior to 	receipt by the 	user." 	Thus, 	an 	individual 	user cannot
validate a tribometer.
Under ASTM F2508, a tribometer must satisfy two criteria to be validated: (1) it
must rank the coefficient of friction for each of four reference surface tiles in the correct
order; 	and 	(2) it must produce statistically significant results, 	using the 	mean 	and
standard deviation, for all adjacently ranked surface tiles. 	ASTM F2508 at § 9. 	If the
tribometer does not satisfy these criteria, then it fails validation, 	|d. 	at § 9.3. 	The
manufacturer 	must 	then 	create 	a 	validation 	report 	specifying 	the 	95th 	percentile
confidence interval for each reference surface tile. 	kL at § 10.1.
ASTM 	F2508 	also 	requires 	individual 	users 	to 	perform 	calibration 	of their
tribometer to ensure valid test results. 	Id at § 4.5, 13.2. The tribometrist must measure
each of the four reference surface tiles and compare the results to the 95th percentile
confidence interval specified in the manufacturer's validation report, jd. at § 13.2. If the
results for each tile do not fall within the confidence interval, then the tribometer fails
calibration. idat§ 13.3.

No. 70767-1-1/4
Therefore, ASTM F2508 ensures tribometer reliability with two safeguards. 	First,
manufacturers or independent testers must validate the tribometer. 	Second, individual
users 	must calibrate their tribometer to ensure their 	measurements fall 	within 	the
confidence 	interval set forth 	in the validation 	report. 	If the tribometer fails either
calibration or validation, then it fails to comply with ASTM F2508.
On February 24, 2011, just before the adoption of ASTM F2508, Gill tested the
metal 	rim of the 	utility cover. 	She explained that the 	manufacturer calibrated 	her
tribometer in January 2011. 	Gill found that the rim's coefficient of friction when wet was
0.35 	(± 0.02). 	Gill 	opined that 0.35 	is very slippery and 	not 	reasonably safe for
pedestrian use. 	She stated that the "generally accepted standard is that 0.5 is the
established minimum value for the coefficient of friction for a reasonably safe horizontal
walking surface."
The coefficient of friction scale ranges from 0.0 to 1.0. 	In 2011, the City adopted
a 0.5 coefficient of friction standard for new utility covers. 	Prior to that, the City did not
have a standard in place.
On June 2, 2013, Gill conducted a second test of the metal rim. 	In an effort to
recreate the wet conditions when Kill slipped, Gill poured water on the rim. 	Gill found
that the coefficient of friction was 0.21 (± 0.02). 	Explaining the different results (0.35
versus 0.21), Kill stated that Gill explained "there must be some surface contaminant of
some kind that was on the rim as tested that resulted in the lower figure the second time
around."

No. 70767-1-1/5
The day before Gill's second test, she calibrated her tribometer and created what
she called a "Report of ASTM F2508 Validation" of the English XL tribometer. She used
the four reference tiles—granite, porcelain, vinyl, and ceramic—sent from ASTM. 	Her
test results showed the coefficient of friction for each tile as: 0.0700 for granite, 0.1013
for porcelain, 0.1727 for vinyl, and 0.8505 for ceramic. 	However, the manufacturer's
validation report for Gill's tribometer specifies the 95th percentile confidence intervals
as: 0.078-0.082 for granite, 0.132-0.137 for porcelain, 0.173-0.180 for vinyl, and 0.605-
0.616 for ceramic. 	None of Gill's calibration results fall within these intervals.
On the parties' cross motions for summary judgment, the trial court held Gill's
methodology for slip-resistance testing to be unreliable and therefore unhelpful to the
jury under ER 702. 	The court believed Gill was qualified as an expert. 	However, the
court explained that Gill's tribometer was not properly calibrated when she tested the
utility cover rim. 	Furthermore, the court reasoned, Gill's two tests of the rim produced
different results. 	It concluded that Gill did not provide an adequate explanation for this
difference. 	"Either Ms. Gill's tribometer is inherently unreliable or the way she used it
was inherently unreliable." 	And, the court held that Gill failed to account for how the
presence or absence of surface contaminants may have affected her test results.
As a result, the court excluded Gill's test results and her opinion that the rim was
unreasonably slippery. 	Without Gill's testimony,
[T]he Court does not believe that plaintiff has any evidence to support her
contention that that rim, that two-inch rim, was so inherently dangerous
that the City does not need to be on notice of its dangerous condition, and
because there's 	no 	other evidence that the City was on 	notice of its
dangerous condition.

No. 70767-1-1/6
The court therefore held that Kill failed to demonstrate an issue of fact. 	It granted the
City's 	motion for summary judgment and dismissed all claims against the City with
prejudice.
After the trial court's ruling, Gill sent her tribometer to the manufacturer (Excel
Tribometers LLC) for additional testing. 	Using Gill's tribometer and its own reference
tiles, 	Excel 	produced 	the 	following 	calibration 	results: 	0.066 	for granite, 	0.116 	for
porcelain, 0.165 for vinyl, and 0.576 for ceramic. 	Like Gill's original calibration, these
results are outside the 95th percentile confidence interval in the validation report.
Excel 	also 	conducted 	a 	calibration 	test 	using 	its own 	tribometer and 	Gill's
reference tiles. 	These results were: 0.080 for granite, 0.100 for porcelain, 0.149 for
vinyl, and 0.641 for ceramic. 	Except for the granite tile, these results are also outside
the 	95th 	percentile confidence 	interval 	and 	all 	substantially different 	than 	Gill's
calibration results for the same tiles. 	Excel also determined that the coefficient of
friction for Gill's ceramic reference tile varied widely from quadrant to quadrant, ranging
from 0.645 in the southeast quadrant to 0.840 in the southwest quadrant. 	Based its
testing, Excel asserted an additional margin of error of ± 0.03 for slip resistance values
equal to or less than 0.50 and ± 0.05 for slip resistance values greater than 0.50.
Therefore, Excel believed that Gill's tribometer satisfied the ASTM F2508 calibration
requirements.
In a motion for reconsideration, Kill stated:
The differences in the results which concerned the Court are not
caused by an uncalibrated tribometer, but individual and internal variations
in the ceramic references tiles ASTM sells to manufacturers like Excel
(and individual tribometrists) for ASTM 	F2508 validation/calibration and

No. 70767-1-1/7
the fact that ASTM F2508's testing protocols do not at this time account
for such variations.
Kill explained that ASTM F2508 assumes the tiles' surfaces are not variable, even
though different tiles 	are 	used for validation 	and 	calibration. 	She argued that the
difference between the validation report and Gill's calibration was attributable to this
variation in tiles.
Kill also requested a Frve hearing on the applicability of ASTM F2508. 	Frve v.
United States. 293 F. 1013, 1014 (D.C. Cir. 1923). 	Kill asserted that based on Excel's
testing, there is "a real question whether ASTM F2508 is capable of producing accurate
results." 	She argued that there is an "apparent lack of consensus in the scientific
community about how validation and calibration results are supposed to be interpreted."
The trial court denied Kill's request for a Frve hearing. 	The court concluded that
Gill's methodology for measuring slip-resistance was not novel under Frve. 	The court
also denied Kill's motion for reconsideration and excluded Kill's testimony under ER 702
and ER 403. 	The court did not believe that tribometers are inherently unreliable, only
that 	Gill's 	tests 	results 	were 	unreliable, 	because 	her tribometer was 	not 	properly
calibrated and her two test results varied greatly. 	The court therefore left in place its
order granting the City's motion for summary judgment and dismissing with prejudice.
Kill appeals.
DISCUSSION
I. 	Gill's Expert Testimony
Kill argues that the trial court erred in excluding Gill's testimony, because Gill's
opinions and methodology regarding slip-resistance testing are helpful and reliable. 	Kill
makes several 	related 	arguments. 	She asserts that any minor margin 	of error or

No. 70767-1-1/8
variance in Gill's test results goes to the weight and credibility of Gill's testimony, not its
admissibility. 	She 	likewise 	argues 	that 	the 	trial 	court 	improperly 	overlooked 	the
additional margin of error asserted by the tribometer manufacturer. 	Kill also contends
that, because Gill's individual tribometer was successfully validated, there was no need
for the additional ASTM F2508 calibration protocol.
A. 	Standard of Review
We review an order granting summary judgment de novo. 	Moore v. Haqqe. 158
Wn. App. 137, 146, 241 	P.3d 787 (2010). 	Summary judgment is appropriate when
there is no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. 	Id 	In determining whether a genuine issue of material fact exists, we
construe 	the 	facts 	and 	reasonable 	inferences 	in the 	light 	most 	favorable 	to 	the
nonmoving party. 	jd at 146-47.
We generally review evidentiary rulings for abuse of discretion. 	Hensrude v.
Sloss, 150 Wn. App. 853, 860, 209 P.3d 543 (2009). 	However, the "de novo standard
of review is used by an appellate court when reviewing all trial court rulings made in
conjunction with a summary judgment motion." 	Folsom v. Burger King, 135 Wn.2d 658,
663, 958 P.2d 301 (1998). Therefore, we conduct the same inquiry as the trial court in
considering Gill's testimony. 	Id
The trial court must exclude expert testimony involving scientific evidence that
does not satisfy both Frve and ER 702. 	Lakev v. Puaet Sound Energy, Inc., 176 Wn.2d
909, 918, 296 P.3d 860 (2013). 	Under Frve, the court must find that the underlying
scientific theory and the "'techniques, experiments, or studies utilizing that theory'" are
generally accepted in the relevant scientific community and are capable of producing
8

No. 70767-1-1/9
reliable results. 	]d (quoting Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593,
603, 260 P.3d 857 (2011)).
Evidence that is admissible under Frve must still pass the two-part test under ER
702: (1) the witness must be qualified as an expert and (2) the expert's testimony must
be helpful to the trier of fact. 	State v. King County Dist. Court W. Div., 175 Wn. App.
630, 637, 307 P.3d 765, review denied 179 Wn.2d 1006, 315 P.3d 530 (2013). 	Courts
interpret possible 	helpfulness to 	the trier 	of fact 	broadly and favor 	admissibility in
doubtful cases. 	Id at 638. 	Evidence is helpful if it concerns matters beyond the
common knowledge of a 	layperson and does not mislead the jury. 	]d 	Unreliable
testimony does not assist the trier of fact. 	Lakev, 176 Wn.2d at 918.
In sum, Frye and ER 702 work together to regulate expert testimony. 	Id 	Frve
excludes testimony based on novel scientific methodology until there is consensus in
the relevant scientific community that the methodology is reliable. 	Id. at 918-19. 	ER
702 excludes testimony where the expert fails to adhere to that reliable methodology.
Id at 919.
B. 	Gill's Methodology and Test Results Were Unreliable
Kill is correct that "[wjhen a scientific theory has protocols for assuring reliability,
an expert's errors in applying proper procedures go to the weight, not the admissibility,
of the evidence." 	Id at 920. 	For instance, this court held that an inherent margin of
error of 0.01 percent in the Breathalyzer machine went to the weight of the breath test
results, not their admissibility. 	State v. Keller, 36 Wn. App. 110, 111-14, 672 P.2d 412
(1983). 	However, this rule does not apply if "the error renders the evidence unreliable."

No. 70767-1-1/10
Lakev, 176 Wn.2d at 920. 	In such cases, the trial court may exclude the unreliable
evidence under ER 702. 	Id
Similarly, variance in test conditions and original conditions do not necessarily
preclude admissibility, as variations may merely go to the weight of the evidence. 	Bichl
v. Poinier, 	71 Wn.2d 492, 497, 429 P.2d 228 (1967). 	Identical 	conditions are not
required. 	Breimon v. Gen. Motors Corp., 8 Wn. App. 747, 756, 509 P.2d 398 (1973).
However, there must be substantial similarity in the test conditions and the conditions at
the time of the accident. 	Id 	Furthermore, variable test results may be excluded where
the original conditions are not accounted for in a subsequent test. 	Quinn v. McPherson,
73 Wn.2d 194, 201-02, 437 P.2d 393 (1968).
Here, Gill's test results varied so significantly as to render them unreliable. 	Her
first test showed a coefficient of friction of 0.35 (± 0.02). 	Her second test showed 0.21
(± 0.02). 	This is a difference of 0.14, almost 15 percent of the entire coefficient of
friction scale, which ranges from 0.0 to 1.0. 	This is not a minor variance.
Furthermore, there is no documentation in the record of the rim's condition on the
day Kill slipped, other than it was wet. 	Gill poured water on the rim for her second test,
but was able only to 	speculate that some type of surface contaminant must have
caused the variation in test results. 	Without more evidence, Gill could not establish
substantial similarity between her two tests, nor between the test conditions and the
condition of the rim when Kill fell. 	As Gill's test results and explanation demonstrate,
surface contamination can have a dramatic impact on the slipperiness of the metal rim.
10

No. 70767-1-1/11
Furthermore, Gill's tribometer was not properly calibrated under the ASTM F2508
standard at the time of her second field test. 	The following table shows the various
calibration results:
Granite 	Porcelain 	Vinyl 	Ceramic
95th Percentile
Confidence Interval 0.078-0.082 	0.132-0.137 	0.173-0.180 	0.605-0.616
Gill's calibration
using her
tribometer and tiles
0.0700 	0.1013 	0.1727 	0.8505
Excel's calibration
using Gill's
tribometer and its
own tiles
0.066 	0.116 	0.165 	0.576
Excel's calibration
using its own
tribometer and
Gill's tiles
0.080 	0.100 	0.149 	0.641
The confidence interval represents a margin of uncertainty. 	Every measurement
is uncertain, in that no instrument is infinitely precise or accurate. 	King County Dist.
Court, 175 Wn. App. at 638. 	The concept of measurement uncertainty is similar to the
concept of margin of error. ]d 	It expresses the idea that a true value of a measurement
can never be known. 	]d 	Even the best instruments yield only an estimate of the true
value. 	Id 	Uncertainty indicates a range in which a true value of a measurement is
likely to occur. 	]d 	A confidence interval is one way of expressing uncertainty, 	|d
Here, for instance, the manufacturer is 95 percent confident that the true value of the
coefficient of friction for granite measured by the English XL tribometer lies between
0.078 and 0.082.
11

No. 70767-1-1/12
The table demonstrates that Gill's tribometer measurements for each of the four
surface 	reference 	tiles 	fell 	outside 	the 	manufacturer's 	95th 	percentile 	confidence
interval.2 	The same was true when 	Excel 	tested 	Gill's 	tribometer 	using 	its 	own
reference tiles. And, with the exception of the granite tile, Excel's measurements using
its own tribometer and Gill's tiles fell outside the confidence interval. 	Moreover, all three
calibration tests for all four reference tiles vary significantly.
Both Kill 	and 	the 	City put forth evidence that 	ASTM 	F2508 	is the 	industry
standard. 	The standard specifies that if calibration results for each tile do not fall within
the specified confidence interval, the tribometer fails calibration. 	ASTM F2508 § 13. 	A
tribometer that fails 	calibration 	does 	not 	comply with ASTM 	F2508 	and 	does 	not
produce valid test results. 	]d 	Gill's tribometer failed calibration. 	As the trial court
explained, either Gill's tribometer is unreliable or the way she used it is unreliable.
Expert testimony that does not adhere to reliable methodology is properly excluded
under ER 702. 	Lakev, 176 Wn.2d at 918-19.
And, lastly, as the trial court held, Gill's statement that a 0.5 coefficient of friction
is an absolute threshold for safety would mislead the jury. 	The City provided copious
evidence 	that 	tribometers 	are 	effective 	to 	measure 	only 	relative 	slipperiness, 	not
absolute slipperiness. 	Different tribometers, both across models and within models, can
give significantly different readings for 	the same surface. 	Thus, 	a 	tribometer can
2 Excel 	asserted 	an 	additional 	margin 	of error of ± 0.03 	for slip-resistance
measurements under 0.50 and ± 0.05 for measurements above 0.50 to account for the
variations in reference tiles. 	However, the greater the margin of error, the less precise
the measurement and the less helpful the measurement is to the jury. 	Moreover, even
with Excel's purported additional margin of error, Gill's calibration results for porcelain
and ceramic still fall outside the 95th percentile confidence interval.
12

No. 70767-1-1/13
accurately determine whether one surface is more or less slippery than other surfaces
measured by that same tribometer, but it cannot give an objective measurement of a
surface.
For all these reasons, we conclude that Gill's expert testimony on slip-resistance
is unreliable and misleading. 	It would therefore be unhelpful to the jury under ER 702.
As such, we hold that the trial court properly excluded the evidence.
C. The Trial Court Did Not Need to Hold a Frve Hearing
In the alternative, Kill argues that the trial court should have held a Frve hearing
to 	assess whether the ASTM 	F2508 calibration 	method 	is generally accepted 	and
reliable—before 	deciding 	whether Gill 	properly adhered 	to 	that methodology. 	We
review de novo a trial court's decision not to conduct a Frve hearing. 	State v. Gregory,
158 Wn.2d 759, 830, 147 P.3d 1201 (2006). 	Frve is implicated only where '"either the
theory and technique or method of arriving at the data relied upon is so novel that it is
not generally accepted by the relevant scientific community.'" 	Lakey, 176 Wn.2d at 919
(quoting Anderson, 	172 Wn.2d 	at 611). 	While the admissibility of novel 	scientific
testimony raises Frve concerns, the application of accepted techniques to reach novel
conclusions does not. ]d
Gill stated in her declaration that the English XL tribometer is generally accepted
in the scientific community. 	The manufacturer stated that this 	particular tribometer
"conforms to all requirements of ASTM F2508-11 Standard Practice for Validation and
Calibration of Walkway Tribometers Using Reference Surfaces." 	The City submitted
several scholarly articles explaining that slip-resistance measurements are tribometer
specific. 	"The introduction of [ASTM F2508]. . . has produced a method which allows
13

No. 70767-1-1/14
validation of each type of tribometer and the values generated during testing." 	This
evidence demonstrates that the ASTM 	F2508 is generally accepted 	in the relevant
scientific community and capable of producing reliable results. 	Without it, the literature
indicates that tribometer results are not reliable. 	The fact that Gill could not conform her
tribometer 	measurements 	to 	ASTM 	F2508 	does 	not 	mean 	that 	ASTM 	F2508 	is
unreliable.
II. 	Genuine Issue of Material Fact
We must still decide whether there is a genuine issue of material fact in Kill's
remaining evidence. 	Municipalities have a duty to exercise reasonable care to keep
their sidewalks in a condition that is reasonably safe for ordinary travel. 	Keller v. City of
Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). 	Whether a sidewalk is reasonably
safe is generally a question of fact. 	See Owen v. Burlington N. & Santa Fe R.R., 153
Wn.2d 780, 788, 108 P.3d 	1220 (2005). 	Questions of fact may be determined as a
matter of law when reasonable minds could reach but one conclusion. ]d
The fact that the plaintiff slipped and fell does not, by itself, mean that there is an
unreasonably dangerous condition. 	Knopp v. Kemp & Hebert, 193 Wash. 160, 164-165,
74 P.2d 924 (1938). 	"It is common knowledge that people fall on the best of sidewalks
and floors. A fall, therefore, does not, of itself, tend to prove that the surface over which
one is walking is dangerously unfit for the purpose." 	jd 	Furthermore, the nonmoving
party may not rely on speculation or argumentative assertions that unresolved factual
issues remain. 	Marshall v. Ballv's Pacwest, Inc., 94 Wn. App. 372, 377, 972 P.2d 475
(1999).
14

No. 70767-1-1/15
Taking all reasonable inferences in Kill's favor, there is evidence that the utility
cover rim was (1) wet from rain, (2) smooth metal, and (3) two inches wide. 	Kill also
stated in her declaration that she was wearing work boots at the time of her fall. 	It is
common knowledge that smooth, wet metal is slippery. 	See Michaels v. Taco Bell
Corp., Civ. No. 10-1051-AC, 2012 WL 4507953, at *6 (D. Or. Sept. 27, 2012). 	This
evidence establishes that the utility cover rim was slippery when wet. 	However, there is
no evidence to establish that the rim was unreasonably slippery. 	The fact of Kill's fall is
not 	enough. 	Therefore, 	without 	expert 	testimony 	establishing 	that 	the 	rim 	was
unreasonably dangerous, the jury would be left to speculate. 	There is no genuine issue
of fact to resolve.3
Kill nevertheless argues that the City did not comply with its own standards and
practices, which she asserts is admissible to show the rim was not reasonably safe. 	In
3 Kill cites two old Washington slip and fall cases that involved wet metal on
sidewalks. 	In Smith v. City of Tacoma, the plaintiff slipped on a wet, smooth sheet of
metal covering a coal hole on an inclined sidewalk. 	51 Wash. 101, 102-03, 98 P. 91
(1908). 	The metal sheet was worn by years of foot traffic and several people had
previously slipped on it. 	]d at 102-03. 	The court concluded that this evidence was
sufficient to go to the jury on the issues of negligence and constructive notice. 	]d at
103. 	In Smith v. City of Spokane, the plaintiff slipped on 	a 	manhole cover in the
sidewalk. 	103 Wash. 314, 315, 174 P. 2 (1918). 	The manhole was wet and partially
covered with snow and ice. 	Id 	Like in City of Tacoma, the manhole had been worn
smooth and other pedestrians had fallen on it. 	]d at 316. 	On these facts, the court
refused to hold "as a matter of law, that the cover is not such a menace as to make the
city liable to answer in damages to one who is injured by falling thereon." 	Id at 315.
These cases are distinguishable from 	Kill's case. 	City of Tacoma involved a
sheet of metal on an inclined sidewalk. 	51 Wash. At 102-03. The manhole cover in City
of Spokane was partially covered by snow and ice. 	103 Wash. At 315. 	Both of these
conditions increased the dangerousness of the smooth metal coverings. 	Furthermore,
in both cases, several previous slips indicated that the metal covers were unreasonably
slippery. 	By contrast, there were no prior complaints about the utility cover where Kill
slipped and fell, nor about others like it. We therefore conclude that City of Tacoma and
City of Spokane are distinguishable and do not control here.
15

No. 70767-1-1/16
determining whether the defendant acted with reasonable care, the trier of fact may be
informed of the standard industry practice. 	Restatement (Second) of Torts § 295A
(1965); 	Helling v. Carey. 83 Wn.2d 514, 518-19, 519 P.2d 981 (1974). 	Likewise, a
statute, regulation, or other positive enactment may help define the scope of a duty or
the standard of care. 	Owen, 	153 Wn.2d at 787. 	However, 	industry custom is not
conclusive on the issue of negligence. 	See Helling, 83 Wn.2d 514, 518-19.
Kill is correct that since at least 2003, the City has required all new utility cover
frames to have a nonskid surface.4 	City of Seattle, Standard Plans for Municipal
Construction, Standard Plan No. 550 (2003). 	The City's expert, Seattle Public Utilities
Civil Engineer Steven Read, 	agreed that diamond 	plating or SlipNOT rims 	provide
greater traction than smooth metal. 	Read explained that "[y]ou definitely want a nonskid
surface" for in-sidewalk utility covers. 	However, the City also submitted a declaration
from Jeffrey Baker, an operations manager at WS Molnar Company, the manufacturer
of SlipNOT products. 	Baker explained 	that 	he was familiar with 	general 	industry
practices. 	He believed that most, if not all, utilities would not require SlipNOT on a one
to two inch metal frame surrounding a SlipNOT cover. 	He stated, "the industry standard
4 The 	record 	states that the 	utility cover in question "was likely installed 	in
1989 ... or before." 	Kill argues that, based on this date, the utility cover rim violated the
City's own 1986 standard requiring a slip-resistant rim. 	The 1986 standard included
not-to-scale diagram of a utility cover. 	City of Seattle, Standard Plans for Municipal
Public Works construction, Standard Plan No. 560 (11th Ed. 	1986). 	It shows a
partially shaded utility cover and rim. 	Kill asserts that this required the utility cover rim
to be diamond plated. 	However, nothing in the diagram so states. 	Rather, the diagram
specifies only: "Steel Frame(Galv) Anchored to top unit." 	"Galv" presumably means
galvanized, 	which 	is 	a 	coating 	to 	prevent 	rust. 	Webster's Third 	International
Dictionary 932 (2002).
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No. 70767-1-1/17
is to install flat metal frames in some installations and 	use SlipNOT or comparable
covers."
The City's current requirement of nonskid utility cover rims, by itself, does not
establish that smooth metal rims are unreasonably dangerous. 	See Ruff v. County of
King, 125 Wn.2d 697, 705, 887 P.2d 886 (1995) (recognizing that municipalities are not
required 	"to update every 	road 	and 	roadway structure to 	present-day standards").
Likewise, the existence of a 	safer alternative does not mean that the metal rim is
unreasonably slippery. 	Baker's declaration also suggests that nonskid utility cover rims
are not industry custom. 	We therefore conclude that this evidence does not create a
genuine issue of material fact.
We affirm.
WE CONCUR:
17