Opinion
No. 54139-1-I
Filed: May 16, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-32082-1. Judgment or order under review. Date filed: 02/13/2004. Judge signing: Hon. Bruce W Hilyer.
Counsel for Appellant(s), Charles Ebenezer Woode, Law Offices of Charles Woode, 1200 Westlake Ave N, Ste 502, Seattle, WA 98109.
Counsel for Respondent(s), Deborah Lynn Carstens, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Jerret E. Sale, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
The trial court granted summary judgment to Sears dismissing negligence claims of plaintiff who, while assisting store security personnel in pursuit of a shoplifter, was struck by the vehicle driven by the shoplifter. Because plaintiff failed to present genuine issues of material fact for trial on the essential elements of damages and causation, we affirm.
FACTS
On a rainy afternoon, as Jay Kleiner and his wife were driving through a Sears parking lot in Redmond, they observed a black Lincoln Continental driving fast on the wrong side of the road and endangering some elderly pedestrians. As the Kleiners proceeded through the lot, they saw the Lincoln again, this time in the proper lane, but spinning its wheels and moving back and forth as if trying to get out of its position. Then Mr. Kleiner saw two men run up to the Lincoln and try to pull the driver out. Kleiner's wife called 911 and, at the request of the 911 operator, told Kleiner to try to get the Lincoln's license plate number. As the Lincoln pulled away, Kleiner and the two men, who turned out to be Sears security guards, exchanged some gestures or motions, and the men jumped into the back of the Kleiners' truck. Kleiner followed the Lincoln, but was unable to get closer than five car lengths behind it because of the traffic. While the Lincoln was stopped for a traffic light, Kleiner jumped out of his truck and ran into the pedestrian crosswalk in front of the Lincoln, attempting to read the license plate. The two security guards jumped out of the Kleiners' truck and again attempted to pull the driver out of the Lincoln. The Lincoln then accelerated, struck Kleiner as he stood in the crosswalk, and drove away. Kleiner and the security guards got back into the Kleiners' truck and Kleiner again pursued the Lincoln, eventually catching up with it. The security guards apprehended the shoplifter. Kleiner sued Sears and the two security guards, alleging negligence, negligent hiring, negligent supervision, negligent training, intentional and negligent infliction of emotional distress, outrage, reckless endangerment, and failure to possess or exercise that degree of skill and learning required of a security guard. Sears moved for summary judgment, contending that Kleiner could not present a prima facie case on any of his negligence claims, that he failed to state claims upon which relief could be granted with regard to reckless endangerment and failure to possess or exercise that degree of skill and learning required of a security guard, and that his claims were barred by the assumption of risk doctrine. Sears presented portions of Kleiner's deposition testimony in support of its motion. For the purposes of the summary judgment only, Sears did not contest that material issues of fact may exist as to whether a duty existed or was breached.
In response, Kleiner presented copies of written statements given to the Renton police by three Sears asset-protection agents, and Sears' responses to discovery, including interrogatories to which Sears had not yet responded. And Kleiner referred to the allegations in the complaint, but without providing declarations or other admissible evidence to support the allegations. The trial court granted summary judgment to Sears and dismissed Kleiner's claims with prejudice. Kleiner appeals.
ANALYSIS
We review a summary judgment order de novo, performing the same inquiry as the trial court, and considering the facts submitted and all reasonable inferences in the light most favorable to the nonmoving party. Kruse v. Hemp, 121 Wn.2d 715, 853 P.2d 1373 (1993); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). A moving defendant may satisfy the initial burden by showing that there is an absence of evidence to support any material issue in the nonmoving party's case. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225 n. 1, 226, 770 P.2d 182 (1989). In response, the nonmoving party may not rely on the allegations in the pleadings, but must set forth specific facts by affidavit or otherwise that show a genuine issue exists. Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kruse, 121 Wn.2d at 722; CR 56(c).
To establish his negligence claims, Kleiner was required to show duty, breach, causation, and damage. Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Proximate cause is further divided into two elements: cause in fact, meaning the `but for' consequences of an act, and legal causation, which is the determination of whether liability should attach as a matter of law given the existence of cause in fact. Id. at 778-79. Although issues of causation are generally questions of fact for trial, summary judgment is appropriate if reasonable minds could reach but one conclusion. Id. at 775.
Kleiner first contends that the trial court erroneously concluded that Sears owed him no duty. But for purposes of summary judgment, Sears did not challenge duty or breach, and the parties focused on proximate cause, damages, and assumption of risk. Moreover, because our review is do novo on the same record as was before the trial court, we are not concerned with what the trial court's reasoning may have been. Sears contends here, as below, that even assuming Sears breached some duty owed to Kleiner, Kleiner failed to present prima facie evidence to establish causation and damages, and that his claims are barred because he assumed the risk of his own actions.
Sears is correct that in responding to the motion for summary judgment, Kleiner failed to identify any evidence in the record to create a genuine issue of material fact for trial regarding damages. In his complaint, Kleiner claims:
Mr. Kleiner sustained serious and permanent injuries necessitating medical treatment, loss wages, loss of earning power, substantial pain and suffering, permanent impairment, as a result of the suspect crashing into him in his attempt to escape Defendants.
. . . .
As a proximate result of defendant's tortious conduct described herein, plaintiff has sustained injuries and damages in dollar amounts which will be proven by evidence herein after to be adduced.
. . . .
As a direct and proximate result of negligence of the defendants, plaintiff has sustained injuries and damages which include, but are not limited to; past, present, and future physical injury, pain, suffering and disability; past, present, and future economic loss including medical expenses, loss of income, and earning capacity, travel expense and other miscellaneous economic losses; past, present, and future mental [and] emotional distress and anxiety; a reduction in the capacity to enjoy life; permanent disability; and such other further damages as may be proven at trial.
Clerk's Papers at 7-8.
In his memorandum opposing summary judgment filed below, without citation to any evidence in the record, Kleiner stated, `Defendant Sears Roebuck and Co's breach of its duty proximately caused plaintiff, Jay Kleiner to sustained [sic] physical injuries and also lost earnings.' Clerk's Papers at 89. This statement is repeated on appeal, again without any citation to evidence in the record. Brief of Appellant at 14. Bare allegations from the pleadings fail to establish a genuine issue of material fact to prevent summary judgment. Las v. Yellow Front Stores, Inc., 66 Wn. App. at 198. Without admissible evidence from which a rational finder of fact could find that Kleiner sustained some damages, an essential element of his claims fails.
As to causation, Kleiner contends that but for the request of the agents of Sears, he never would have given chase to the shoplifter, and but for the failure of the agents to warn him that the shoplifter had come close to running down one of the agents, Kleiner never would have stepped in front of the Lincoln at the stoplight. Although Sears does not contest for the purposes of summary judgment the existence and breach of a duty of care in the pursuit of the shoplifter and in failing to warn Kleiner of danger, Sears contends that Kleiner has not presented evidence to establish a genuine issue of material fact for trial on the essential element of proximate cause.
Kleiner relies on unsworn Renton Police Department statements signed by Jason Moore, Steve Fast, and Kathi Grunberg, who are asset-protection agents for Sears. These unsworn statements are attached as exhibits to Kleiner's attorney's sworn affidavit in response to the motion for summary judgment. The record reflects that Sears objected to the admissibility of these statements and moved to strike them below. It is not clear from the record whether the trial court ruled on that motion. If the court failed to rule, it may have recognized that considering the contents of the police reports which show that the shoplifter tried to run a Sears security guard down before Kleiner became aware of the situation would not change the result of the hearing because the statements at issue, even if sworn or otherwise authenticated so as to be admissible evidence for purposes of summary judgment, do not override Kleiner's own testimony regarding proximate cause. Based on Kleiner's own sworn statements that he gave chase and was trying to get the license number of the Lincoln at the request of the 911 operator, we agree that authentication of the unsworn statements would not cure the proximate cause problem. Kleiner testified that he saw the Lincoln drive on the wrong side of the road and nearly hit several elderly shoppers before the security guards came along. He immediately asked his wife to call 911, and she did so. No rational trier of fact could conclude, in light of that admission, that Kleiner did not realize the danger because nobody told him the Lincoln had nearly hit a security guard. Moreover, Kleiner testified that his wife told him to get the license number so she could give it to the 911 operator. He stated, `My wife was talking to me, she was talking to 911, that was most of my concern was being more toward her. And then her telling me what to do.' Clerk's Papers at 130. He also testified that when they stopped about five car lengths behind the Lincoln,
If we were to review the motion to strike, the review would be de novo. See Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). And we would be required to strike the statements because they were unsworn, and because counsel's sworn affidavit is not sufficient to authenticate police reports. See CR 56; Burmeister v. State Farm Ins. Co., 92 Wn. App. 359, 364-65, 966 P.2d 921 (1998).
[M]y wife and I, we started looking for a pen and a piece of paper of some sort and she said she can't find it, so that's what I think she was doing. So I jumped out of my vehicle, and I ran onto the sidewalk, left my vehicle back five car lengths back, left it there, I ran — I ran onto the pedestrian walkway, all right, so I can be legal, do everything legal, I got in front of the vehicle, and as I was starting to read off the — you know, just — I just walked by just like a normal pedestrian because there's no way he could have ever seen what I looked like, so for me to be walking through the pedestrian walkway, I turned around and I just looked at the license plate, and I was getting ready to read it off to my wife, and as I started to read it off to my wife, the two guys that were in the back of my vehicle which I did not know if they were police or if they were security guards, at that time, I turned around, and they tried to pull this guy out of the vehicle for a second time. And because they tried pulling this guy out of the vehicle the second time, he proceeded to run me over.
Clerk's Papers at 125.
There is no evidence in the record, admissible or otherwise, that the security guards directed, asked, or suggested that Kleiner stand in front of the Lincoln to read the license plate number, or even that he obtain the license plate number. Similarly, there is no evidence in the record to support Kleiner's self-serving claim that he would have behaved differently had he known that the Lincoln driver almost hit a security guard. Based on this record, Kleiner has not shown a genuine issue of material fact for trial as to cause in fact.
Given Kleiner's failure to establish genuine issues of material fact for trial on two essential elements of his negligence action, damages and cause-in-fact, we need not address the issue of assumption of risk.
Affirmed.
SCHINDLER and COLEMAN, JJ., concur.