Opinion
No. 32862-3-II.
June 27, 2006.
Appeal from a judgment of the Superior Court for Clark County, No. 04-2-01170-5, Robert L. Harris, J., entered February 4, 2005.
Counsel for Appellant(s), Terry E. Lumsden, Law Offices of Terry E Lumsden, 3517 6th Ave Ste 200, Tacoma, WA 98406-5403.
Counsel for Respondent(s), Donald Arrington Greig, Landerholm Law Office, 805 Broadway St Ste 1000, PO Box 1086, Vancouver, WA 98666-1086.
Douglas Fredrick Foley, Foley Buxman PLLC, 13115 NE 4th St Ste 260, Vancouver, WA 98684-5957.
David E. Gregerson, Attorney at Law, 415 E 17th St. Vancouver, WA 98663-3423.
Alison Jayne Chinn, Attorney at Law, PO Box 1995, Vancouver, WA 98668-1995.
Affirmed by unpublished opinion per Quinn-Brintnall, C.J., concurred in by Bridgewater and Penoyar, JJ.
When Sunnie Yoeun was nine years old, he drove his bicycle into the side of William Steiner's car. Sunnie suffered permanent brain damage as a result of the collision. Sunnie's mother, Hon Yoeun, sued Steiner, claiming that if Steiner had been driving more slowly, Steiner would have been able to stop and avoid the collision. The trial court granted Steiner's motion for summary judgment.
On appeal, Yoeun argues that summary judgment was improper because genuine issues of material fact exist regarding Steiner's duty of care under the circumstances existing on Carlson Road at the time of the collision. But because as a matter of law Steiner's speed did not proximately cause the tragic accident, summary judgment was proper and we affirm.
FACTS
On July 9, 1997, Sunnie and Andre Yoeunyuthy were riding their bicycles at Yoeunyuthy's apartment complex on Carlson Road in Vancouver, Washington. The complex has two private driveways separated by a fence. Steiner was driving his Jeep Wrangler southbound down Carlson Road. Sunnie rode east out of the apartment's south driveway onto Carlson Road and hit the right rear passenger side of Steiner's car. Carlson Road has a posted speed limit of 25 m.p.h. Steiner stated that he was driving at the speed limit, but, because he was not monitoring his speedometer, he agreed that he could have been traveling between 23 and 27 m.p.h.
There are some date discrepancies. We use the date of the police report.
Carlson Road is a residential street that is 19 feet, 2 inches wide and.4 miles long with a posted speed limit of 25 m.p.h.
Steiner described the accident:
[B]ecause of vegetation (trees/hedges) and a fence (cyclone with slats) between the north and south entries [of the parking lot on Carlson Road], I could not see inside to the apartment parking lot. As I was starting to drive past the south entry, two young boys riding bicycles came racing out into Carlson Road. I slammed on my brakes and swerved into the left into the northbound lane. The boy closest to me saw my vehicle and stopped his bike. The other boy did not appear to see me and ran his bike into the side of my vehicle approximately at the location of the rear wheel on the passenger's side. After the collision I got out of my vehicle and found the boy who had struck me unconscious on the ground. He was not wearing a helmet. There were several small children standing out in the street watching, but there were no adults anywhere. . . . I picked the boy up off the street and ran with him into the apartment complex. . . . Finally, someone opened their door and called 911.
This fence apparently limited vision for both Sunnie and Steiner. Yoeun sued the complex owners, Chin Fai Ng and Judith Ann Ng, for negligence, arguing that the premises were unsafe because the fence violated code regulations. In that action, Yoeun presented an expert declaration stating the fence's height and nontransparent structure violated existing city ordinances. The expert opined that had the fence been 30 inches or less, Sunnie and Steiner would have seen each other sooner, likely avoiding the collision.
1 Clerk's Papers (CP) at 15-16.
Yoeunyuthy's account differed:
3. . . . As [Sunnie and I] were proceeding toward the opening of the fenced area, I heard a vehicle accelerating outside of the fence proceeding from my left to right. At the time of this event I was 14 years old. I was able to stop my bicycle. Although I yelled to Sunnie to stop, he apparently did not hear me and continued out and was hit.
4. I never exited the opening from the parking lot until after Sunnie had been hit by the vehicle.
1 CP at 241.
Yoeun offered a declaration from forensic consultant, Robert Eichler. Eichler stated Carlson Road has a transparent risk of pedestrian and non-motorized vehicle incursion on to the roadway with very little warning to oncoming vehicular traffic[.] This danger is immediately obvious to anyone entering the road in a motor vehicle[.] It is obvious that the posted speed limit of 25 [m.p.h.] is excessive because of the circumstances on this road.
1 CP at 261. He went on to state specifically that: Steiner admits to a speed of as much as 27 [m.p.h.]. The braking distance for this speed is approximately 35 feet[.] For a speed of 20 [m.p.h.] the distance is 19 feet[.] This site is at least as hazardous as most school zones which have a 20 [m.p.h.] speed limit when children are present[.] A careful, prudent, driver would exhibit at least the same level of caution at all times when on the subject road as they would when operating in a school zone when children are present[.] A speed of 15 [m.p.h.] would probably be still more appropriate here[.]
1 CP at 261.
Eichler also opined that 'the collision would have been avoided if Steiner had stopped short of the actual impact point by approximately 10 feet.' 1 CP at 261. He stated that this would have been possible if Steiner had been driving at 20 m.p.h. or less. He opined that 'Steiner's excessive speed was thus a contributing factor to this accident.' 1 CP at 261.
Acting as guardian ad litem, Yoeun sued Steiner. Steiner moved for summary judgment. The court granted summary judgment for Steiner stating: Without warning [Sunnie] drove his bicycle into Carlson Road striking the rear portion of defendant Steiner's automobile as it traveled along Carlson Road at an estimated speed less than the posted legal speed. [Sunnie] suffered head injuries as a result of the accident.
The Ngs also moved for summary judgment but the court denied their motion.
Neither of the two children riding their bicycles [was] visible to Mr. Steiner prior to the accident. In analyzing the actions taken by Mr. Steiner, the only suggestion or concept of negligence is that the road is a narrow road in a residential area and he should be traveling at a speed less than the suggested speed limit.
Without some actual notice or warning, that argument fails and the Court can find no suggestion of negligence in the operation of [Steiner's] motor vehicle which would lead to liability.
Supp. CP at 332-33.
The court granted Steiner summary judgment on January 7, 2005. Yoeun appeals.
ANALYSIS
Summary Judgment
We review summary judgment de novo. Wilson v. Steinbach,
98 Wn.2d 434, 437, 656 P.2d 1030 (1982). In reviewing a motion for summary judgment, we consider all facts and reasonable inferences in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437. But the nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Summary judgment is proper if the pleadings, affidavits, and depositions establish that there is no genuine issue of any material fact as to any element of the claim and the moving party is entitled to judgment as a matter of law. CR 56(c).
Substantive Negligence Law
In a negligence action, the claimant must prove four elements: (1) existence of a duty; (2) breach of that duty; (3) injury as a result; and (4) that defendant's actions proximately caused the injury. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999); Blumenshein v. Voelker, 124 Wn. App. 129, 136, 100 P.3d 344 (2004). If the plaintiff fails to present evidence to prove each essential element of the negligence claim, then summary judgment for the defendant is proper. Blumenshein, 124 Wn. App. at 136.
Issues regarding breach and proximate cause are generally questions of fact for the jury. Hertog, 138 Wn.2d at 275. But when the evidence is such that reasonable minds cannot differ, these factual issues may be determined as a matter of law. Hertog, 138 Wn.2d at 275. When a defendant demonstrates that no evidence supports an element of the plaintiff's negligence claim, he is entitled to judgment in his favor as a matter of law. Blumenshein, 124 Wn. App. at 136.
Here, Yoeun bases her claim that Steiner was negligent on the argument that road and neighborhood conditions created a duty of adequate care that required drivers to drive on Carlson Road slower than the 25 m.p.h. speed limit. She asserts that (1) Steiner breached this duty of care by driving at the speed he did, and (2) if Steiner had been going slower, he could have stopped and Sunnie would have ridden in front of Steiner's car and avoided the accident. But even if we assume that road conditions such as those presented here can create a duty requiring drivers to drive more slowly than the posted speed limit, which we do not, no evidence proves Steiner's speed proximately caused Sunnie's injuries.
In Channel v. Mills, we examined whether a favored driver's speed can be deemed a 'proximate cause' of a collision. 77 Wn. App. 268, 271-72, 890 P.2d 535 (1995). We specifically considered whether a favored driver with the right-of-way who is speeding proximately caused a cyclist's injuries when the cyclist darted into the right-of-way from a curb or driveway. Channel, 77 Wn. App. at 272. We held that speed is not a proximate cause of an accident if it does no more than bring the favored driver and disfavored driver together to the same location at the same time. Channel, 77 Wn. App. at 276-77. A plaintiff can prove proximate cause by demonstrating that a favored driver, who sees a danger, would have been able to brake, swerve, or otherwise avoid the impact but for the excessive speed. Holmes v. Wallace, 84 Wn. App. 156, 161, 926 P.2d 339 (1996); Channel, 77 Wn. App. at 278-79. To establish proximate cause here, Yoeun must produce evidence from which the trier of fact can infer the approximate point at which Steiner could have seen Sunnie and Yoeunyuthy, i.e., the point at which the favored driver should have seen the disfavored driver or cyclist and realized that he was not going to yield the right-of-way. Holmes, 84 Wn. App. at 161-62; Channel, 77 Wn. App. at 279 n. 13. Taking the evidence in the light most favorable to the nonmoving party, Yoeun can only present evidence to dispute that Steiner was driving down Carlson Road at an appropriate speed. No evidence suggests that, but for the alleged excessive speed, Steiner would have been able to see Sunnie, brake, swerve, or otherwise avoid the collision. Channel, 77 Wn. App. at 279. Without showing that Steiner's speed caused Steiner to fail to stop between the time he saw Sunnie and the point of impact, Steiner's speed, even if in excess of road conditions, could not be the proximate cause of Sunnie's injuries. Channel, 77 Wn. App. at 278-79. But in this case it is undisputed that Steiner, the favored driver, did not see Sunnie come out of the driveway until immediately before the boy drove into the rear passenger side of his car.
The speed at which Steiner's car was traveling did no more than put his car at a specific spot in the road at the specific time Sunnie drove his bicycle out of the apartment driveway. Thus, under Channel, Yoeun has presented no evidence that Steiner's speed proximately caused Sunnie's injuries and summary judgment in favor of Steiner was proper.
Affirmed.
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.
BRIDGEWATER, J. and PENOYAR, J., concur.