Opinion
No. 30286-1-II.
Filed: March 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-2-07466-4. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Karen Strombom.
Counsel for Appellant(s), Donna M. Young, Attorney at Law, 720 3rd Ave Ste 1510, Seattle, WA 98104-1825.
Counsel for Respondent(s), Shawn B. Briggs, Briggs Briggs, 10222 Gravelly Lake Dr SW, Lakewood, WA 98499-5005.
Lumbermen's of Washington, Inc., appeals the trial court's order granting partial summary judgment to Shawn McEwen, arguing that the trial court erred in finding as a matter of law that Lumbermen's negligence caused McEwen's injuries. We reverse and remand for trial.
FACTS I. Injury
On July 12, 2001, McEwen came to Lumbermen's to buy some eight-foot long cedar boards that weighed about three pounds each. Employee Emily Schmauder was on a ladder handing a board to McEwen when it slipped and hit him on the head. She apologized and McEwen said he was okay. McEwen loaded the board into his car and drove home.
McEwen subsequently brought an action against Lumbermen's for injuries to his neck and left knee that allegedly resulted from having been hit by the board. Lumbermen's answered, denying negligence and asserting comparative fault by McEwen.
II. Summary Judgment
McEwen moved for partial summary judgment, seeking rulings as a matter of law that Lumbermen's was negligent, that McEwen was injured, and that Lumbermen's negligence was the proximate cause of McEwen's injuries.
In support of that motion, McEwen cited the opinions of his treating physicians. Dr. Steven Yamamoto stated in a deposition that he believed McEwen's knee injuries were the result of the incident at Lumbermen's because McEwen had reported no preexisting injury. Yamamoto opined that McEwen had sustained a twisting injury to his knee at Lumbermen's based on McEwen's statement that "[a]t the point of impact he felt pain in his neck as well as bent with his knee twisted and experienced pain with his left knee as well as mild swelling." Clerk's Papers (CP) at 22. Dr. Michael Martin found it "more probable than not" that the incident at Lumbermen's had caused McEwen's neck injuries based on McEwen's statement to Martin that he had no previous neck problems. Martin attributed his neck pain to the board striking his head.
As additional support for his summary judgment motion, McEwen also submitted Schmauder's deposition testimony. She said that the board slipped when she was handing it to McEwen but that she did not drop it completely.
Lumbermen's asserted in response that there were issues of fact sufficient to defeat McEwen's motion for partial summary judgment. Lumbermen's cited McEwen's deposition testimony that (1) he had moved away from the board when it hit him; (2) he had twisted his whole body away from the board and "kind of ducked;" (3) he had felt no impact in his neck and did not feel that his head was forced down into his neck and shoulders; (4) he had twisted his knee, explaining "I just know that my body went to the right. I don't know about the biomechanics. . . . I just know when it hit me I went to the right and backward;" and (5) he did not feel pain until after he drove home from Lumbermen's. CP at 90-91.
Lumbermen's also cited (1) eyewitness Deborah Bodger's testimony that McEwen had barely moved when the board hit him, his reaction was "very very minimal," and he did not "throw his head or twist or jump out of the way or anything like that;" (2) Dr. Yamamoto's testimony that a knee injury of the type McEwen suffered usually would cause immediate pain; and (3) the declaration of biomechanics expert Colin Daly, who analyzed the force with which the board could have hit McEwen and concluded that there was no possibility that the incident caused physical tissue damage to any part of McEwen's body. Lumbermen's noted that neither Martin nor Yamamoto had considered what type of force would have been necessary to have caused McEwen's injuries; rather, their opinions as to causation rested on McEwen's description of the incident.
In a rebuttal memorandum, McEwen asserted that there was no issue as to causation because Daly did not discount his experts' conclusions that it was McEwen's reflexive action, rather than the impact force of the board, that had caused his injuries.
The trial court accepted McEwen's arguments and granted his motion for summary judgment, ruling that Lumbermen's was negligent in causing the July 21 incident, that McEwen suffered injuries as a result of the incident, and that Lumbermen's negligence was a proximate cause of McEwen's injuries. It ruled further that a jury should determine the extent of McEwen's injuries and the issue of damages.
III. Appeal
A commissioner of this court denied Lumbermen's motion for discretionary review. A panel of judges granted Lumbermen's motion to modify and accepted review solely on the issue whether Lumbermen's negligence caused injury to McEwen.
ANALYSIS I. Standard of Review
When reviewing a summary judgment order, we engage in the same inquiry as the trial court. Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 377, 972 P.2d 475 (1999). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file show the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Marshall, 94 Wn. App. at 377. We consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 197, 943 P.2d 286 (1997).
After the moving party has submitted adequate affidavits, the nonmoving party must set forth specific facts rebutting the moving party's contentions and disclosing the existence of issues of material fact. Marshall, 94 Wn. App. at 377. Summary judgment should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Wojcik v. Chrysler Corp., 50 Wn. App. 849, 854, 751 P.2d 854 (1988).
In a negligence case, the plaintiff must prove duty, breach, causation, and damages. Nivens, 133 Wn.2d at 198. Even if negligence is clearly established, the defendant is not liable unless its negligence caused the accident. Marshall, 94 Wn. App. at 378; see also Evans v. Yakima Valley Transp. Co., 39 Wn.2d 841, 846, 239 P.2d 336 (1952) (liability does not rest in the negligent act, but on proof that the act was the proximate cause of the injury). Breach and proximate cause generally are not subject to summary adjudication. Hertog ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). If reasonable minds could not differ, however, these factual questions may be determined as a matter of law. Hertog, 138 Wn.2d at 275.
The trial court is not permitted to weigh the evidence in ruling on summary judgment. Fleming v. Smith, 64 Wn.2d 181, 185, 390 P.2d 990 (1964). Accordingly, a court should not resolve a genuine issue of credibility at a summary judgment hearing. Howell v. Spokane Inland Empire Blood Bank, 117 Wn.2d 619, 626, 818 P.2d 1056 (1991). An issue of credibility is present if there is contradictory evidence, or if the movant's evidence is impeached. Amend v. Bell, 89 Wn.2d 124, 129, 570 P.2d 138 (1977).
II. Proximate Cause
Lumbermen's negligence has been established; the only issue here is whether the trial court properly granted summary judgment on the issue of proximate cause.
Lumbermen's argues that its rebuttal evidence challenged McEwen's credibility and raised questions concerning causation that the trial court should not have resolved. McEwen testified that when the board hit him, he moved away and twisted his entire body to the right, his head moved, and his left knee went to the right and down. In contrast, eyewitness Deborah Bodger testified that McEwen barely reacted when the board hit his head — he did not throw his head, twist, or jump out of the way. Schmauder testified that McEwen told her he was okay, and McEwen said that he loaded the board into his car and drove home before he felt any pain.
McEwen argues that Bodger's testimony reveals only a "minor discrepancy" in the testimony. In our view, this discrepancy is not minor, especially taken together with Schmauder's testimony. Rejection of Bodger's observations requires a weighing of the evidence, which is impermissible in determining whether summary judgment is appropriate.
The discrepancy between McEwen's and Bodger's testimonies also shows that the doctors who treated McEwen based their opinions about causation on disputed facts, both having relied solely on McEwen's version of what happened. In addition, Yamamoto's notes showed that McEwen told him that at the point of impact, he felt pain in his neck and pain from twisting his knee. But McEwen's own deposition testimony contradicts this statement: He said that he felt no pain and no impact on his neck when the board hit him. Thus, the evidence appears to present an issue regarding the credibility of the doctors' testimony as well. See Jarstad v. Tacoma Outdoor Recreation, Inc., 10 Wn. App. 551, 556, 519 P.2d 278, review denied, 83 Wn.2d 1014 (1974) (recognizing that a trier of fact may disregard expert opinion when information supplied to the expert contained irregularities showing that it was incomplete or unreliable).
Colin Daly, Lumbermen's biomechanics expert, also challenged the doctors' testimony. Daly opined that the force of the board's impact could not have resulted in tissue damage to any part of McEwen's body. McEwen attempts to discount this opinion by arguing that the force of the impact is irrelevant, and that his doctors based their opinions only on his reaction to the impact and not upon its force. As Lumbermen's points out, however, the doctors stated that they believed that the incident at Lumbermen's caused McEwen's injuries; they did not specify that the injuries resulted from his reaction and not from the force of impact. McEwen's assertion that the force of impact is irrelevant is not persuasive, and the rejection of Daly's opinion again requires an impermissible weighing of the evidence.
We conclude that reasonable minds could differ on whether Lumbermen's negligence caused McEwen's injuries. The trial court thus erred in finding proximate cause as a matter of law. We reverse the trial court's order insofar as it granted summary judgment on that issue and remand for trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD and QUINN-BRINTNALL, JJ., concur.