Opinion
67237-1-I
12-17-2012
MARY ANN HARRIS, Appellant, v. SUSAN WABEY, Respondent, LES SCHWAB TIRE CENTERS OF WASHINGTON, INC., a Washington corporation; JOHN DOES 1 - X; and JANE DOES 1 - X, Defendants.
UNPUBLISHED OPINION
Appelwick, J.
Whether res ipsa loquitur applies in a given context is evaluated on a case by case basis. The doctrine may normally apply when a wheel separates from a vehicle and injures a third party, but it does not apply when the evidence conclusively establishes the cause of the accident. In this case, the evidence established the cause of the accident and that the defendant did not have exclusive control of the instrumentality that caused the accident. We affirm.
FACTS
In October 2008, Susan Wabey was driving her van north on Interstate 5. The front driver's side wheel of the van separated from the vehicle, crossed the median into southbound traffic, and struck Mary Ann Harris's vehicle. Harris sued Wabey for damages allegedly caused by Wabey's negligence.
Wabey is disabled due to significant back problems. Consequently, she does not personally do any of the maintenance on her van. But, in the year prior to the accident she took the van to Les Schwab Tires to be serviced at least three times. At a March 2008 visit to Les Schwab, she had her front driver side tire replaced, which required Les Schwab employees to remove and reinstall that wheel.
Gerard Schaefer, an expert in accident reconstruction, asserted in a declaration and later in a deposition that the accident occurred as a result of under or over tightening the wheel nuts that attach the wheel to the axle. Because of the defective tightening, the bolts holding the wheel in place failed. According to Schaefer, Wabey would not have had any prior notice of the problem. Further, Wabey's mechanic, Tom Ives, stated in his declaration that he drove the van a month before the accident and did not notice any unusual vibration or noise. He did not see anything visually wrong with the wheels.
Wabey filed a motion for summary judgment, arguing there was no evidence she was negligent. In response, Harris asserted that summary judgment was improper because the doctrine of res ipsa loquitur applied. She also argued that portions of Wabey's, Schaefer's, and Ives's declarations should be stricken. The trial court granted Wabey's motion for summary judgment.
DISCUSSION
Drivers of personal vehicles owe a duty of ordinary care to other nearby drivers. Martini v. State, 121 Wn.App. 150, 160, 89 P.3d 250 (2004). Harris argues that the trial court erred by granting Wabey's motion for summary judgment, because the doctrine of res ipsa loquitur permits an inference that Wabey violated her duty of care to other drivers. Harris also challenges the trial court's denial of her motion to strike the declarations supporting the motion for summary judgment.
We review an order granting summary judgment de novo. Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Summary judgment is only proper if there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Id. We review evidentiary rulings for an abuse of discretion. Hoglund v. Meeks, 139 Wn.App. 854, 875, 170 P.3d 37 (2007). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or untenable reasons. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
I. Motion to Strike
Harris argues that the declarations of Wabey, Schaefer, and Ives "contain improper legal conclusions and/or are otherwise objectionable and fail to comply with the rules of evidence." She does not elaborate on this argument. But, Harris articulated her arguments below and Wabey responded to those arguments on appeal. Accordingly, we will briefly consider them.
Harris argued below that Wabey was incompetent to testify because she is physically disabled, has some unmeasured hearing loss, takes pain medication, and allegedly has an impaired memory. But, Harris did not articulate how those alleged deficiencies rise to the level of making Wabey incompetent to testify.
Harris argued below that Schaefer was not qualified to testify as an expert witness. But, the trial court has wide discretion in ruling on the admissibility of expert testimony. Miller v. Likins, 109 Wn.App. 140, 147, 34 P.3d 835 (2001). Schaefer is a mechanical engineer and a registered professional engineer in Washington. His specialty is accident reconstruction and he has experience with cases involving failure or self-loosening of threaded fasteners. He has previously served as an expert in wheel separation cases.
Finally, Harris argued below that Ives is not a wheel expert and did not have personal knowledge of Wabey's van. We agree he may not have been qualified to give expert testimony about wheels. But, Ives is a mechanic and his declaration concerns his personal knowledge of the van. He regularly serviced the van and test drove the van in September 2008. He properly relayed his personal knowledge that he did not observe any loose wheel nuts on the van.
The trial court did not abuse its discretion by denying Harris's motion to strike these declarations.
II. Res Ipsa Loquitur
Res ipsa loquitur literally means "'the thing speaks for itself.'" Curtis v. Lein, 169 Wn.2d 884, 889, 239 P.3d 1078 (2010) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 39, at 243 (5th ed. 1984). When it applies, it spares the plaintiff the requirement of proving specific acts of negligence and permits the jury to infer negligence. Id. at 890. The result is that the plaintiff can establish a prima facie case of negligence and the burden shifts to the defendant to offer an explanation and evidence to rebut the inference of negligence. Id. at 892, 894. The doctrine is not applicable when there is evidence that is completely explanatory of how an accident occurred. Id. at 894. It applies only in peculiar and exceptional cases, where the facts and demands of justice make its application essential. Id. at 889-90. Specifically, it applies when (1) the accident or occurrence that caused the plaintiff's injury would not ordinarily happen in the absence of negligence, (2) the instrumentality or agency that caused the plaintiff's injury was in the exclusive control of the defendant, and (3) the plaintiff did not contribute to the accident or occurrence. Pacheco v. Ames, 149 Wn.2d 431, 436-37, 69 P.3d 324 (2003). Whether res ipsa loquitur applies in a given context is a question of law determined on a case by case basis. Id. at 436.
It has been applied in cases where a wheel separated from a commercial vehicle injured a third party. In D'Amico v. Conguista, a wheel separated from a truck and killed a pedestrian. 24 Wn.2d 674, 677-78, 684-85, 167 P.2d 157 (1946). Likewise, in Covey v. W. Tank Lines, Inc., res ipsa loquitur applied when a wheel came off a trailer and struck a mink shed, killing two mink and allowing three others to escape. 36 Wn.2d 381, 382, 391-92, 218 P.2d 322 (1950). Wabey argues that those cases are distinguishable, because the accidents at issue occurred in a commercial setting. For purposes of our analysis, we assume the doctrine applies equally to private vehicles.
But, even if it does apply to noncommercial vehicles, this case is distinguishable from D'Amico and Covey, because Wabey conclusively rebutted the inference of negligence. She provided uncontested evidence that the accident was caused by a specific act of negligence, which makes the presumption inapplicable. Curtis, 169 Wn.2d at 894. According to Schaefer's declaration, "[t]he accident occurred as the result of either the over tightening or under tightening of the lug nuts for the wheel which resulted in the failure of the wheel nuts and bolts to secure the wheel to the axle of the vehicle which then failed and caused the separation of the wheel from the axle."
Harris argues that she did not have to provide counter expert testimony. She relies on Ripley v. Lanzer, 152 Wn.App. 296, 215 P.3d 1020 (2009). In Ripley, a doctor left a scalpel in the plaintiff's knee after closing surgical incisions. Id. at 302-03. The trial court granted the doctor's motion for summary judgment because the plaintiff did not provide any expert testimony establishing that the doctor was negligent. Id. at 305. This court reversed, determining that when res ipsa loquitur applies, a plaintiff does not need to provide expert testimony to establish negligence. Id. at 315. The surgical error in Ripley was the kind that normally does not occur without negligence. Id. at 312-13. The doctor was in control and the patient had not contributed to the injury. Id. at 311, 313.
In contrast, Wabey provided unrebutted evidence that the cause of the accident was the negligent tightening of wheel nuts and that she could not and did not personally maintain the wheels on her vehicle. Rather, she delegated maintenance to Les Schwab. Further, she established that she could not have had prior notice of the defect. Unlike in Ripley, Wabey did not have exclusive control of the cause of the accident and res ipsa loquitor does not apply.
It is nevertheless possible that Wabey could be responsible for the actions of an agent in maintaining the vehicle. In Curtis, a woman was injured while walking on a defective dock. 169 Wn.2d at 888-89. She sued the landowners under a theory of premises liability. Id. at 889. Because the dock was destroyed before the cause could be identified, her case depended on res ipsa loquitur. Id. at 890-91. There was a possibility that the dock was actually maintained by a third party. Id. at 893 n.1. The Supreme Court applied res ipsa loquitur and noted that the third party was an agent of the landowners. Id. at 893 n.1.
But, the facts here are more consistent with Nawrocki v. Cole, 41 Wn.2d 474, 249 P.2d 969 (1952) than with the agency analysis in Curtis. In Nawrocki, the Supreme Court ruled that a mechanic was an independent contractor. Id. at 476-77. It reasoned that the mechanic was free from the vehicle owner's direction or control regarding the details or the manner of repair, and that the owner did not supervise the work. Id. at 477. Here, the undisputed evidence is that Wabey did not maintain the van herself. Rather, she entrusted wheel maintenance to Les Schwab. She is not liable for the negligent acts of independent contractors. See, e.g., Hymas v. UAP Distribution, Inc., 167 Wn.App. 136, 161, 272 P.3d 889, review denied, 175 Wn.2d 1006, 284 P.3d 742 (2012). Harris cannot overcome the fact that Wabey did not have exclusive control by asserting that she is responsible for the acts of her independent contractors.
Wabey established a specific cause for the accident. She established that she lacked personal control over the instrumentality that caused the accident. She established that an independent contractor had control. She established that she could not have had notice of the negligence. This evidence rebutted any application of the res ipsa loquitur doctrine on which Harris's appeal exclusively relies. Harris failed to counter this evidence to raise a genuine issue of material fact. The doctrine did not preclude summary judgment.
We affirm.