Opinion
66916-8-I
05-21-2012
JULIA S. SINEX, as Personal Representative of the estate of MATTHEW RICHARD HOWARD, and on behalf of DYLAN DAVID HOWARD, the surviving son of Matthew Richard Howard, Appellant, v. WILLIAM L. BICE and SUSAN E. BICE, husband and wife and the marital community composed thereof, and LANDMASTER CORPORATION, d/b/a THE BATHTUB DOCTOR, a Washington corporation, Respondents.
UNPUBLISHED OPINION
Appelwick, J.
Sinex appeals from the summary judgment order dismissing her action for the wrongful death of Matthew Howard. She argues there was a genuine issue of material fact as to causation. No direct evidence establishes causation. The circumstantial evidence relied upon is speculative and is insufficient to establish prima facie proximate cause. The trial court properly granted summary judgment. We affirm.
FACTS
Matthew Howard lived in a second floor duplex apartment with his girlfriend, Julia Sinex, and their nine month old son, Dylan Howard. William and Susan Bice owned the apartment. On the night of November 14, 2008, at approximately 1:00 a.m., Howard went outside to smoke a cigarette. Shortly after, Sinex heard a loud thumping noise. She went outside and found Howard lying at the bottom of the stairs with blood on the ground near his head. At that time, he was unable to speak and could not tell her what had happened. Sinex called 911 and responders from the Redmond Fire Department arrived at approximately 2:00 a.m.
The original complaint alleged the accident occurred at 11:45 p.m.
Howard suffered a traumatic brain injury. A toxicology study performed at the hospital around 3:15 a.m. revealed that his blood alcohol level was .013. Later, he would report to medical providers that he had no memory of the accident, the events immediately leading up to it, or the 36 hours afterwards. Howard remembered that he had several beers prior to the accident. In her declaration, Sinex testified she believed him to be acting normally, unaffected by alcohol. On April 2, 2009, some five months after the accident, he died due to an overdose of prescription medications.
In October 2008, the month before the accident, the Bices had contracted with the Landmaster Corporation to do some work at the duplex, including the repair and replacement of the exterior stairs. Sinex stated that after the work was done, the stairs were oddly shaped and different from what had been there before. Landmaster, by contrast, submitted a declaration from the individual hired to do the repair work, in which he stated that he simply replaced rotting wood with identically configured good wood. He declared that the replacement stairs, including the treads and handrail, were built in exactly the same manner and design as the earlier stairs. In addition to her own testimony about the stairs, Sinex also presented declarations from two expert witnesses, both human factors consultants, supporting her assertion that the stairs violated applicable safety standards. The declarations point to three defective conditions that increased the risk of someone falling on the stairs: inadequate lighting, a handrail that violated applicable code, and irregular measurements of the stairs' risers and runs in violation of safety standards.
Sinex brought this wrongful death action in December 2009. The Bices and Landmaster both filed motions for summary judgment, based on Sinex's failure to establish prima facie proximate cause. The trial court granted those motions.
DISCUSSION
This court reviews summary judgment orders de novo. Hadley v. Maxwell, 144 Wn.2d 306, 310-311, 27 P.3d 600 (2001). Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Peterson v. Groves, 111 Wn.App. 306, 310, 44 P.3d 894 (2002). We review the facts, and reasonable inferences drawn from the facts, in the light most favorable to the nonmoving party. CTVC of Haw., Co. v. Shinawatra, 82 Wn.App. 699, 708, 919 P.2d 1243, 932 P.2d 664 (1996).
A defendant moving for summary judgment may meet its burden by showing that there is an absence of evidence to support the nonmoving party's case. Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d 1056 (1991). Once that burden is met, the burden shifts back to the plaintiff to show more than "[t]he mere existence of the accident." See Las v. Yellow Front Stores, Inc., 66 Wn.App. 196, 198-99, 831 P.2d 744 (1992). If a plaintiff fails to make a showing sufficient to establish the existence of an element essential to that party's case, the trial court should grant the motion for summary judgment. Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992). "'[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Id. (internal quotation marks omitted) (quoting Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)).
In a negligence claim, the plaintiff must establish the existence of (1) a duty, owed by the defendant to the plaintiff, to conform to a certain standard of conduct; (2) a breach of that duty; (3) a resulting injury; and (4) proximate cause between the breach and the injury. Cameron v. Murray, 151 Wn.App. 646, 651, 214 P.3d 150 (2009).
The trial court granted summary judgment based solely on the fourth factor. The defendants' motions for summary judgment simply asserted that Sinex failed to establish that the stairs were the proximate cause of Howard's injury. We thus presume that Sinex successfully established a genuine issue of material fact as to the first three factors and they are not at issue here. It is undisputed that Howard suffered injury, and that defendants owed some duty of reasonable care in building or repairing the stairs. And Sinex's expert witnesses established that the stairwell failed to conform to safety standards with regards to lighting, the hand rail, and the regularity of the stairs' rise and run. Thus, the sole question before us is whether Sinex established a genuine issue of material fact as to causation.
Circumstantial evidence is sufficient to establish a prima facie case of negligence, if it affords room for reasonable minds to conclude that there is a greater probability that the conduct relied upon was the proximate cause of the injury than there is that it was not. Hernandez v. W. Farmers Ass'n, 76 Wn.2d 422, 426, 456 P.2d 1020 (1969). But, the nonmoving party may not rely on mere speculation or argumentative assertions that unresolved factual issues remain. Marshall v. Bally's Pacwest, Inc., 94 Wn.App. 372, 377, 972 P.2d 475 (1999). A cause of action may be said to be speculative when, from a consideration of all of the facts, it is as likely that it happened from one cause as another. Rasmussen v. Bendotti, 107 Wn.App. 947, 959, 29 P.3d 56 (2001). In this case, we are left with no direct evidence about the cause of Howard's fall. It is undisputed that there was no witness to Howard's accident. He could recall nothing of the event, and Sinex did not find him until afterwards. Many things could have caused the fall. Sinex attempts to draw an inference of causation from the defects in the stairwell and the claims by the expert witnesses that defects make it more likely someone using the stairs will fall. The defendants respond that this inference is mere speculation, insufficient to establish an unresolved issue of material fact.
Marshall is on point. In that case, the plaintiff was injured while exercising on a treadmill at her health club. Marshall, 94 Wn.App. at 375. She alleged the treadmill was defective and malfunctioned, starting suddenly at a fast pace and throwing her off, causing her to sustain a head injury. Id . Because of that injury, she had a two week lapse in memory and had no recollection of the accident. Id. at 375-76. The trial court granted the defendants' motions for summary judgment, finding that Marshall failed to show that a defect in the machine was the proximate cause of her fall. Id. at 376. The reviewing appellate court concluded:
Without any memory of the accident, Marshall simply offers a theory as to how she sustained her injuries. But a verdict cannot be founded on mere theory or speculation.
[I]f there is nothing more tangible to proceed upon than two or more conjectural theories under one or more of which a defendant would be liable and under one or more of which a plaintiff would not be entitled to recover, a jury will not be permitted to conjecture how the accident occurred.
In short, Marshall provides no evidence that she was thrown from the machine, what caused her to be thrown from the machine, or how she was injured. Given this failure to produce evidence explaining how the accident occurred proximate cause cannot be established. Because Marshall did not produce evidence of proximate cause, she failed to produce evidence sufficient to withstand summary judgment.Id. at 379-80 (citation omitted) (footnote omitted) (quoting Gardner v. Seymour, 27 Wn.2d 802, 809, 180 P.2d 564 (1947)).
The facts of this case are comparable to those in Marshall. Howard had no memory of the accident, and there were no witnesses. He never indicated to anyone that he fell because of any condition of the stairs or the lighting. While Sinex heard a noise that sounded like falling to her, that goes to how the injuries occurred, not why. The noise reveals nothing about the cause of the fall.
Sinex attempts to distinguish Marshall, claiming that in that case there was no examination conducted of the treadmill, but in this case her experts examined the stairwell shortly after the accident and discovered defects. The expert testimony was that the stairwell violated safety standards and building code provisions, posed a hazardous condition to users, and thus more probably caused Howard's accident. The absence of an inspection in Marshall confirming the existence of a defect was not determinative. In Marshall and in Gardner, it was mere conjecture that a defect could have caused the fall. In those cases and here, absent any direct evidence of what in fact caused the fall, an assertion that a defect was the proximate cause amounts to but one possible theory for how the injuries were sustained.
The Bices and Landmaster point out numerous other similarly conjectural theories under which the defendants would not be liable. For example, Howard could have been lighting a cigarette and distracted, or he could have bent to tie a shoelace or pick up a dropped item and lost his balance. Another possible theory is that Howard could have fallen while on the top landing at the second story. As Sinex conceded at oral argument, there was no evidence or assertion that the landing above the stairs was defective. If Howard fell on or from the landing, any defect in the stairs would not be a proximate cause of his injuries. Sinex argues there is no evidence he was tying a shoelace, or bent to pick up a dropped item. But, the same can be said in response to her theory-there is no evidence that places Howard on the stairs at the time of the fall. While many things could have caused the fall and injuries, on these facts nothing makes any one cause more likely than not.
Sinex's theory is speculative as to proximate cause. Absent a prima facie showing of proximate cause, the trial court properly granted summary judgment in favor of the defendants. We affirm.