Opinion
No. 59498-2-I.
January 14, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-25789-0, Michael Hayden, J., entered January 19, 2007.
Affirmed by unpublished opinion per Agid, J., concurred in by Schindler, A.C.J., and Ellington, J.
While pulling into a parking space in a church parking lot, a van hit and killed a young boy. His parents sued the church for negligently designing the parking lot. The trial court granted the church's motion for summary judgment because there was no evidence that the church proximately caused the child's death. We agree. The only evidence of a causal link between the design of the parking lot and the child's death is speculative expert testimony and the claimed connection is too attenuated to establish legal causation.
FACTS
On August 19, 2002, Esther Kim (Kim) struck and killed Elijah Yi (Elijah), a three year old child, while parking her van in the parking lot of the Seattle Full Gospel Church, a/k/a the Hanwoori Mission Church (Church). The Church had a small parking lot with one row of angled parking spaces separated from the church building by an eleven foot driveway over which there was no crosswalk. The driveway ran east to west and was bordered on the north by the parking spaces and on the south by the church building. The eastern portion of the parking lot was paved with asphalt, but the western portion was on gravel. Juhee Yi (Yi), Elijah's mother, frequently parked in the lot. Although cars regularly parked on the gravel, she always tried to park on the asphalt surface, when possible, because she felt the gravel was too sharp for her tires. On the day of the accident, she was dropping Elijah and his older siblings off at vacation bible school. She pulled into one of the angled parking spaces on the asphalt. There were no cars parked to her left on the gravel. She let the older children get out first and then helped Elijah out of his car seat and onto the asphalt parking lot next to the driver side of her van. At the same time, Kim's van entered the parking lot and came to a screeching halt to let Yi's older children cross the driveway into the church. Yi, concerned by the noise of screeching breaks, left Elijah next to the van and went to check on her other children. After watching them safely cross the driveway and enter the church, Yi looked for Elijah and discovered that he had moved approximately 15 to 20 feet to the west of her van. Meanwhile, Kim proceeded to drive westward toward Elijah. Yi was worried and tried to catch up to Elijah. She saw him turn to see that Kim's van was behind him and move north, out of the driveway, and into one of the angled parking spaces. Unfortunately, Kim pulled into that same parking space and hit Elijah, fatally injuring him.
On August 4, 2005, Yi and her husband (the Yis) filed suit against the Church and Kim alleging that their negligence caused Elijah's death. The Church moved for summary judgment arguing that the Yis failed to present sufficient evidence of proximate cause. The Yis opposed the summary judgment motion, arguing that their depositions and declarations raised genuine issues of material fact about whether the Church's negligence proximately caused the accident. With their opposition to summary judgment, the Yis also presented two additional expert declarations and an additional declaration from Juhee Yi claiming that Kim was traveling at 10 miles per hour when she struck Elijah. The Church moved to strike the additional declarations. The court denied the motion to strike but granted the summary judgment motion after considering all the evidence presented. The Yis appeal.
Summary judgment in favor of the church resulted in a final judgment because Kim, the other defendant, cannot be found.
DISCUSSION
We review a summary judgment order de novo and engage in the same inquiry as the trial court. We will affirm summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether there are factual issues, we must construe the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. A material fact is a fact upon which the outcome of the litigation depends. Although a party moving for summary judgment has the initial burden of showing there is no dispute about any issue of material fact, once that burden is met, the burden shifts to the nonmoving party. The nonmoving party cannot rely on allegations or speculation but must assert specific facts to defeat summary judgment.
Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).
CR 56(c); Huff v. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000).
Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963).
Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992).
Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
To defeat summary judgment in a negligence case, the plaintiff must show a genuine issue of material fact as to each element — duty, breach of duty, proximate cause, and damages. Here, summary judgment was requested and granted based solely on the lack of proximate cause evidence. Although the existence of proximate cause is generally a question of fact submitted to the jury, if reasonable minds could not differ, the issue may be determined on summary judgment as a matter of law. Proximate cause has two requirements: cause in fact and legal causation.
Lynn v. Labor Ready, Inc., 136 Wn. App. 295, 306, 151 P.3d 201 (2006) (citing Hertog, 138 Wn.2d at 275, 979 P.2d 400 (1999)); Craig v. Wash. Trust Bank, 94 Wn. App. 820, 824, 976 P.2d 126 (1999) (citing Kennedy v. Sea-Land Serv., Inc., 62 Wn. App. 839, 856, 816 P.2d 75 (1991)).
Hertog, 138 Wn.2d at 275 (citing Sherman v. State, 128 Wn.2d 164, 183, 905 P.2d 355 (1995)).
Lynn, 136 Wn. App. at 307 (citing Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985)).
Plaintiffs in a negligence case must first prove that the defendant's negligence was the cause in fact of the injury. Cause in fact is also called "but for" causation because the plaintiff must demonstrate that "but for" the defendant's negligence, the injury would not have occurred. Put another way, there must be a direct link between the ways in which the defendant was negligent and the manner in which the plaintiff was injured.
Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998).
Id.
Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 203, 15 P.3d 1283 (2001); Hartley, 103 Wn.2d at 778.
Here, the Yis' experts explained a variety of ways in which the Church was negligent in designing and maintaining its parking lot. But they presented insufficient support for their contention that these deficiencies were the cause in fact of the accident. The experts asserted that the parking lot violated a King County Ordinance because the area was too narrow to allow for both angled parking and a two-way traffic lane. This resulted in a driveway that should not have been used for two-way traffic and angled parking spaces that were two feet too short. But there is no evidence that two-way traffic or parking space depth had anything to do with Kim's van hitting Elijah. Kim was going westward in the right hand lane, just as she would have been had the driveway been wider. There were no other cars trying to pass her on her left. Perhaps, had Elijah been trapped in the parking space with nowhere else to go, the depth of the space might have mattered, but no one was parked on either side of the space into which Kim pulled.
Steve Stockinger, an accident reconstruction expert, and Raymond Helmer, a traffic engineer, refer to King County Ordinance 6575 in their declarations. King County Ordinance 13034 repealed 6575 in 1998. In the absence of any assertion to the contrary by the Yis, we presume that Ordinance 6575 was in effect and governed parking lot dimensions when the Church constructed its parking lot.
Former King County Ordinance 6575.
The experts also stated that the Church should have used traffic devices like signs, speed bumps, and a crosswalk to raise drivers' awareness and alert them to the dangers of hitting children in the area. But the evidence shows that Kim braked to avoid hitting the Yis' two older children. She came to a full stop even without a crosswalk. One wonders what sign would do a better job of alerting drivers to the presence of children than being forced to brake suddenly to avoid hitting two children. There is no evidence to suggest these measures would have prevented Kim from hitting Elijah.
Although the Yis' experts do occasionally try to link the negligent design and maintenance of the parking lot to Elijah's death, those attempts are speculative. Ken Cottingham, an accident reconstruction engineer, testified at his deposition that the faded stripes designating parking spaces in the gravel area were too faint for Elijah to see, thereby leading him to believe that it was a safe walking area. He further testified that, had the area been properly marked, Elijah would have walked a different way and would have been more visible to Kim. But the idea that clearly marked white lines would have somehow prevented a young child like Elijah from walking into the space where Kim hit him or made him more visible to her is pure speculation. Cottingham had no way of knowing what Elijah or Kim saw or thought on the day of the accident, and he did not provide any factual support for his assertion that had the gravel area been better marked the accident would not have occurred.
At oral argument the Yis' counsel characterized the parking area with faded white lines as a gravel path to the playground. There is no evidence that the Church designated the gravel parking area as a path, and nothing in the record supports this characterization.
Similarly, the Yis rely on the declarations of Steve Stockinger and Raymond Helmer to argue that the Church caused the accident by failing to take measures that slowed parking lot drivers down to five miles per hour. Helmer stated that the Church should have posted speed limit signs. Stockinger claimed that had Kim been driving at 5 miles per hour instead of 10 miles per hour, Elijah would have been able to move out of the way of her van. No nonspeculative evidence supports this assertion. Stockinger's accident reconstruction techniques led him to believe that Kim was driving approximately 10 miles per hour and Elijah was walking approximately four feet per second at the time of impact. But nothing suggests that a five mile per hour speed limit sign or any other slowing device would either have resulted in Kim's driving only five miles per hour or ensured that Elijah maintained or increased his speed and went in a direction that would have lead him to safety. In fact, nothing explains why Elijah was incapable of getting out of the way or speeding up or why he chose to walk into the very same empty parking spot that Kim chose to pull into when there was no one parked on either side of that spot. These were very unfortunate accidents of fate and not directly attributable to the Church's failure to establish a five mile per hour speed limit.
Stockinger's declaration also supports the Yis' assertion that, had there been a crosswalk between the parking spaces and the church building, Kim never would have had to slam on her brakes to avoid the two older children, Yi would have never heard the screeching of brakes, and she would not have left Elijah alone to check on her other two children. While this may be a correct restatement of events, the absence of the crosswalk can hardly be said to have a direct causal connection to Kim's hitting Elijah after managing to successfully stop for the other two children. Yi could have just as easily picked up Elijah and carried him with her to check on his siblings. Nothing about the screeching of breaks required her to leave Elijah. Nor did it cause him to walk away from his family's van and into the parking space where he was eventually hit by Kim's van.
Cottingham also testified that a fence between the asphalt and gravel parking areas would have prevented the accident, though he never explained why the church was negligent for failing to install a fence in the middle of its parking lot. And Stockinger testified that the parking lot should not have existed because the area was too small for it to comply with a King County ordinance, leading to the conclusion that
Ms. Yi would not have left Elijah unattended to look out for the safety of her other children if the Church did not allow cars to park in the gravel area and in the area east of the gravel area along the north boundary but instead, used this exclusively for vehicular traffic.
The Yis use this expert testimony to argue that had the Church prevented Elijah from entering the gravel area, had there been a fence or had it not been used for parking, Kim would not have hit him. While this is true, it does not amount to proximate cause. If we were to accept these arguments, any evidence of a code violation or design defect would support a contention that an injury occurring on the premises was proximately caused by that defect because the building should not have been built at all. Even if this were sufficient to prove that the Church's negligence in allowing parking in the gravel area or failing to install a fence to keep children out of the gravel area was the cause in fact of Elijah's injury, the causal connection is too attenuated to satisfy the second prong of the proximate cause analysis — legal causation.
While the Yis' cause-in-fact arguments are weak, their legal causation arguments are weaker. Legal causation is a question of law that rests largely on policy determinations. "The court must decide 'whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability.'" There is no published case on point in Washington, but the parties present numerous out-of-state cases dealing with proximate cause determinations in parking lot negligence cases. From those cases, two general trends emerge: (1) courts tend to hold that there are material issues of fact related to proximate cause in cases where a landowner's negligence creates a situation that encourages or forces the plaintiff to cross traffic in an unsafe area, resulting in the plaintiff being injured in the unsafe area; and (2) courts tend to be unwilling to find sufficient evidence of proximate cause in cases where a child enters an unsafe area of a parking lot, where he or she should not have been without parental supervision, and gets hit by a car, even when there is some evidence of negligent design. Had Kim failed to brake in time to avoid hitting the older children in an area where the Church should have installed a crosswalk, there would have been a genuine issue of material fact relating to proximate cause under the first set of cases. But this case is more analogous to the second group where courts held evidence of proximate cause was lacking as a matter of law. Although Elijah did not run out into the path of Kim's van, he was in an area typically used by cars, not pedestrians. Although nothing prevented him from entering the area, nothing encouraged or forced him into the area either. The Yis emphasize that Elijah was walking towards a visible playground area at the western end of the parking lot, but in other cases, courts have refused to impose liability for injury to a child hit while crossing a parking lot traffic lane to get to an amusement ride provided by the lot's owner.
At oral argument, the Yis cited our holding in Johnson v. State that expert testimony about measures that could have been taken to prevent a rape was sufficient to raise a genuine issue of material fact about but for causation in a negligent campus security case. 77 Wn. App. 934, 942, 894 P.2d 1366, review denied, 127 Wn.2d 1020 (1995). But, unlike here, the issue of legal causation was not properly raised in Johnson. Id. at 942 n. 24.
Lynn, 136 Wn. App. at 311.
Id. at 311-12 (internal quotation marks omitted) (quoting Minahan v. W. Wash. Fair Ass'n, 117 Wn. App. 881, 890, 73 P.3d 1019 (2003), review denied, 151 Wn.2d 1007 (2004)).
See Poloski v. Wal-Mart Stores, Inc., 68 S.W.3d 445, 448-49 (2001) (sufficient evidence of proximate cause where a woman was killed crossing a faded crosswalk in a busy store parking lot); see also Lutheran Hosp. v. Blaser, 634 N.E.2d 864, 872 (1994) (sufficient evidence of proximate cause where a hospital set up the parking lot in such a way that it risked a pedestrian being hit at the exit of the parking lot and exactly such an accident occurred); see also Romano v. Bittner, 157 Ill. App. 3d 15, 510 N.E.2d 924, 935, 109 Ill. Dec. 856 (1987) (sufficient evidence of proximate cause when vehicles collide at an unmarked parking lot intersection in a way that suggests the parking lot owner created confusion about who had the right-of-way).
See Booth v. Warehouse Market, 286 P.2d 721, 722-24, 1955 OK 215 (1955) (insufficient evidence of causal connection between congested, poorly marked, condition of the parking lot and injury to a child who walked out into a traffic lane between two rows of parked cars); see also Jackson v. Pike, 87 So.2d 410, 412 (Fla. 1956) (evidence that a child was hit by a car while crossing a traffic lane in a store parking lot to get to a merry-go-round was insufficient to show the store proximately caused the accident); see also Cole v. Delchamps, Inc., 246 Miss. 846, 152 So.2d 911, 914 (1963) (there was no negligence or proximate cause where a boy ran out into a traffic lane to get to an amusement ride). The Yis attempt to distinguish Booth by arguing that the court applied a different test for proximate causation, one that has been rejected in Washington, in holding that a later independent act broke the chain of causation. But Washington law also allows for later independent acts that break the chain of causation, provided the subsequent act was not merely an act of contributing concurrent negligence that combined with the original negligent act to proximately cause the harm. See Travis v. Bohannon, 128 Wn. App. 231, 241-43, 115 P.3d 342 (2005).
Cole, 152 So.2d at 914; Jackson 87 So.2d at 412.
Contrary to the Yis' assertions, the question a court asks in determining proximate cause as a matter of law is not whether the parking lot should have been built at all, or even whether some improvements might have made it safer. The proper question is whether a reasonable juror could find that, if the parking lot had been properly designed and maintained, the accident likely would have been prevented. Because no reasonable juror could so find, based on the evidence presented, we affirm the trial court's decision to grant the Church's summary judgment motion.
Because we affirm based on a lack of proximate cause evidence, we need not address the Church's additional argument that the trial court should have granted its motion to strike the declarations submitted with the Yis' opposition to summary judgment.
WE CONCUR: