Opinion
No. 35411-0-II.
July 15, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-13606-1, Kathryn J. Nelson, J., entered September 8, 2006.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Armstrong, J.
Linda Dominguez sued the City of Tacoma, Tacoma Power, and Leeward Enterprises d/b/a Traffic Control Services (collectively, the City) for negligently failing to warn motorists that a traffic repair crew had blocked the highway to repair a damaged utility pole. Linda's husband, Michael Dominguez, was killed when he drove his motorcycle into a Ford Escort that was stopped on the highway at the repair site. Finding that Linda had failed to provide evidence that the City's acknowledged breach of its duty to properly light and sign the repair site in accord with the Washington Administrative Code (WAC) or industry standards proximately caused the collision, the trial court granted the City's motion for summary judgment.
We use first names for clarity.
Our de novo review of the record reveals that (1) the City improperly relied on evidence that Michael was intoxicated and driving an illegally modified motorcycle at the time of the collision to support its summary judgment motion, and (2) the City used a "Left Lane Closed Ahead" sign on a two-lane highway, which could have misled motorists into improperly believing that there was an open right lane, causing the collision. Accordingly, taken in the light most favorable to the nonmoving party, Linda presented evidence sufficient to create a material issue of disputed fact regarding the proximate causes of the collision and a trial on the merits is required. We, therefore, vacate the summary judgment order and remand for trial.
Facts
State Route (SR) 702 is a well-traveled two-lane asphalt roadway in rural Eastern Pierce County, with one westbound lane and one eastbound lane. A yellow skip line separates the lanes. The road is flat and straight with at least one-half mile of visibility or more in each direction from the site of the accident. At the time of the collision, the road was dry and visibility was clear. On April 23, 2004, at approximately 12:39 am, Michael was traveling westbound when he collided with a Ford Escort that was stopped to accommodate a traffic crew working to repair a damaged utility pole.
In order to repair the utility pole, the City had closed the highway's eastbound lane. The City parked its repair trucks, which had flashing amber lights, in the closed portion of the eastbound lane. Motorists could see the work crew's lights from more than a mile away.
The City also placed traffic control signs to the east and west of the work area to alert approaching motorists. The signs on the westbound side of SR 702 were placed in the following order:
(1) "Be Prepared To Stop" (1,183 feet east of the scene), Clerk's Papers (CP) at 155;
(2) "Utility Work Ahead" (850 feet east of the scene), CP at 155;
(3) "Left Lane Closed Ahead" (531 feet east of the scene), CP at 155; and
(4) "Flagger Ahead" (198 feet east of the scene), CP at 155.
The signs were highly reflective and measured approximately four feet by four feet.
In addition to the highly reflective warning signs, flaggers wearing white hard hats, white clothing, and reflector vests directed traffic around the lane closure. The flaggers also carried flashing traffic wands and used hand-held "STOP" and "SLOW" paddles. CP at 155. At the time of the collision, the City had not illuminated the construction area as required under former WAC 296-155-305(9)(c) (2004). In addition, the flagger was not standing in a "flagger box" commonly used to designate a safe work area. CP at 178. Until Michael's accident, the flagging personnel had alternated traffic in the westbound lane without incident for approximately one and a half hours.
Former WAC 296-155-305(9)(c) states: "Flagger workstations are illuminated during hours of darkness by floodlights that do not create glare that poses a hazard for drivers."
Thirty-five to forty-five minutes after Michael's accident, the City complied with the WAC's illumination requirements.
Shortly before 12:39 am, a flagger stopped a white Ford Escort in the westbound lane to allow eastbound traffic to proceed. The driver of the Ford Escort had her foot on the brake and her tail lights were operational. The flagger, standing approximately 30 feet in front of the Ford Escort, saw the motorcycle that Michael was driving rapidly approaching the rear of the Ford Escort. The driver and passenger in the Ford Escort also saw Michael quickly approaching their vehicle. Michael did not reduce his speed, apply the brakes, or take any evasive action, before he crashed his motorcycle into the Ford Escort at full speed.
The motorcycle's front tire slammed into the right rear of the Ford Escort pushing it forward approximately 15 feet, leaving a short tire friction mark on the roadway. Michael and his motorcycle went off the road and came to rest in a grassy area below the westbound shoulder.
Paramedics transported Michael to Madigan Army Hospital. Although the officers responding to the scene of the accident did not report intoxication as a suspected cause of the accident, doctors at the hospital drew Michael's blood at 2:03 am, one and a half hours after the accident. At that time, Michael had a blood alcohol level of 0.05 grams per 100 milliliters.
Michael suffered extensive brain injury in the crash and died on April 28, 2004. Dr. Mullinex, the emergency room doctor who treated Michael, told the medical examiner that Michael was intoxicated at the time of the collision.
The Washington State Patrol described the cause of the collision as follows:
The collision occurred when [Michael] failed to realize that traffic was stopped in his lane and hit the back of vehicle #2 at approximately 55 miles per hour. According to Dr. Mullinix [sic] (at Madigan Army Medical Center) [Michael] was intoxicated.
CP at 156.
Procedural History
On November 7, 2005, Linda sued the City, alleging that the City's failure to install warning signs/devices properly alerting oncoming motorists of the construction zone caused Michael's death. Specifically, Linda's complaint alleged that the City was negligent because the reflective signs were improperly spaced and the flagger was not standing in a lighted station and that those failures were a proximate cause of the accident.
The City filed a motion for summary judgment. For purposes of summary judgment, the City admitted breaching its duty to maintain a safe roadway by failing to comply with WAC regulations regarding traffic management and roadway repair sites, but it argued that Linda could not prove that these deficiencies proximately caused the collision.
In support of its summary judgment motion, the City submitted the declaration of John Hunter, a nationally certified collision reconstructionist, who had been a motorcycle sergeant with the Washington State Patrol for 25 years. Hunter opined as follows:
14. . . . [Michael's] collision was caused by his inattention. This opinion is supported by the fact that the collision occurred during dry roadway conditions and in an area with clear visibility. [Michael] failed to detect and identify four large warning signs beginning 1,183 feet prior to the collision site. Given the retroreflective nature of these signs, they would have been highly visible and highly noticeable from a great distance away, particularly given the relative darkness in that surrounding area. [Michael] failed to detect amber flashing work lights and the lights from the work crew beyond the signs; pedestrians in the roadway, including workers and flaggers with reflective vests and flashing paddles; a stopped white vehicle (the Ford Escort) with illuminated brake lights directly in front of him; and the other associated road work activity taking place. . . . The stopped Ford Escort and the utility trucks would have easily been seen by [Michael] had he been paying attention to the road.
15. . . . In my opinion, [Michael's] driving under the influence of alcohol and failing to have taken any apparent steps to stop or slow in the face of the conditions that should have been very apparent to him contributed to the collision.
16. It is my understanding that the plaintiff contends that the warning signs were not spaced far enough apart. Even if true, it would make no difference in this case. A properly operated motorcycle could have slowed to a stop in as little as 112 feet. The time it would take a vehicle to travel the 1,183 feet at 55 mph would have been approximately 14½ seconds. No other vehicles had difficulty in identifying and detecting the changing traffic conditions. The emergency lights of the Tacoma Power trucks were visible for more than a mile. Even if there were no signs, [Michael] had adequate warning and sufficient notice to stop in time and avoid the collision. Given the fact that signs were present only strengthens my opinion that the accident was solely caused by [Michael's] inattention.
CP at 130-31.
Hunter also testified that Michael's motorcycle was in poor operating condition and that, because of certain modifications, it was illegal to operate it on a public highway in the State of Washington. He testified that the motorcycle's handlebars had been modified and replaced with "ape hanger" bars (CP at 129) that were loose at the steering head, the handlebar switches for the lights and controls of the motorcycle were missing, the steering stops were missing, both of the front fork tubes had been leaking before the accident, the rider's seat was handmade, the console over the tank was missing, and the motorcycle had an illegal exhaust system, among other issues.
As an additional basis for its summary judgment motion, the City argued that the absolute intoxication defense barred Linda's claims. The City submitted the declaration of Ann Gordon, a forensic toxicologist with the Washington State Toxicology Laboratory. Gordon testified that most individuals with a blood alcohol level of 0.05 grams per 100 milliliters are impaired. She also testified that it was possible to estimate Michael's alcohol concentration at the time of the accident on a more probable than not basis. Applying retroactive extrapolation, Gordon concluded that Michael's blood alcohol level was approximately 0.08 grams per 100 milliliters at the time of the crash, the legal limit for operating a motor vehicle.
Linda submitted a declaration from Edward Stevens, a licensed civil engineer. Stevens testified that the signage, lighting, position of the flagger station, and other traffic control measures in place at the time of the collision did not conform to industry standards or former WAC 296-155-305. Stevens concluded that these failures were the proximate cause of Michael's accident.
Linda also submitted the declaration of David Predmore, a forensic toxicologist, who confirmed that Michael's blood alcohol level was 0.05 grams per 100 milliliters an hour and a half after the accident occurred. But Predmore stated that it was not possible to estimate Michael's blood alcohol level at the time of the accident because alcohol absorption is based on too many variables such as the type of alcohol, food intake, the individual's consumption tolerance, and whether the blood is drawn before or after "peak blood alcohol concentration." CP at 337.
Linda also submitted the declaration of Antoni Froehling, an attorney and motorcycle enthusiast, who testified that, although Michael's motorcycle was only "marginally legal," it was roadworthy and could not have been a contributing cause of the collision. CP at 325.
The trial court granted the City's motion for summary judgment, finding that "the plaintiff has not met [her] burden to show proximate cause" (Report of Proceedings (RP) (July 28, 2006) at 23) and "[n]o act or omission of the City . . . was a proximate cause of [Michael's] accident." CP at 423. The trial court stated that it was not considering whether Michael's intoxication contributed to the accident.
Linda moved for reconsideration of the court's summary judgment order, arguing that Trooper Robert Wollnick's investigation of the collision contradicted the City's interpretation of events and created a material issue of disputed fact for trial. Wollnick's report stated that the accident occurred because Michael failed to recognize that traffic was stopped. His report also included detailed measurements of the road as well as the position of the motorcycle and the Ford Escort. The trial court denied Linda's reconsideration motion, finding Wollnick's report did not shed any light as to how the accident occurred or whether Michael took any evasive action. The trial court found that, because Linda failed to produce any new evidence regarding proximate cause, "necessary testimony linking . . . the admitted negligence to the cause of the accident is missing." RP (Sep. 8, 2006) at 10. Linda timely appeals.
ANALYSIS
Standard of Review
We review a summary judgment order de novo. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004) (citing Kinse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993)). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We view all facts in the light most favorable to the nonmoving party, here Linda. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005) (citing Ahterton Condo. Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990)). Summary judgment is appropriate only if reasonable persons could reach but one conclusion from all the evidence. Vallandigham, 154 Wn.2d at 26 (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)). Applying this standard to the record before us we cannot say that, excluding evidence of Michael's intoxication and the street illegality of his motorcycle, all reasonable persons could reach but one conclusion. Material issues of disputed fact exist, requiring a trial. Negligence and Proximate Cause
Proof of negligence requires that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff's injuries. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Proximate cause consists of two elements: cause-in-fact and legal causation. Tyner v. Dep't of Soc. Health Servs., 141 Wn.2d 68, 82, 1 P.3d 1148 (2000). Cause-in-fact requires that the trier of fact determine if the injury would have occurred "but for" the defendant's negligence. Tyner, 141 Wn.2d at 82. Cause-in-fact is a factual question for the finder of fact and summary judgment is only appropriate if reasonable minds can come to only one conclusion. Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985). There may be more than one proximate cause of an injury. Brashear v. Puget Sound Power Light Co., 100 Wn.2d 204, 207, 667 P.2d 78 (1983).
Legal causation is grounded in policy and focuses on whether the connection between the ultimate result and the defendant's act is too remote to establish liability. Tyner, 141 Wn.2d at 82. This determination depends on mixed considerations of logic, common sense, justice, policy, and precedent. Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 478-79, 951 P.2d 749 (1998). Thus, even if negligent conduct is conceded or otherwise clearly established, a defendant cannot be held liable unless its claimed breach of duty caused the accident. Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 378, 972 P.2d 475 (1999).
Linda argues that the City's signage, lighting, and flagger position violations were the proximate cause of Michael's crash because the warning signs were spaced incorrectly, the sign progression and warnings did not conform to established industry standards, there was no lighted flagging station, and the flaggers wore improper uniforms/clothing. The City responds that, even assuming all of those facts are accurate, they are irrelevant because they are not evidence of proximate cause but rather breach of duty, which it concedes. We disagree.
On a two-lane highway, the "Left Lane Closed Ahead" sign was ambiguous. Unlike a "One Lane Closed Ahead" sign, the "Left Lane Closed Ahead" sign could mislead motorists into improperly believing that there was an open right lane ahead. Moreover, although the trial court stated that it had excluded evidence of Michael's intoxication from its analysis, the City improperly relied on evidence of Michael's intoxication in arguing that Michael was not sufficiently attentive to the lights and signs it had posted and would not have heeded appropriate signage. The City also improperly relied on Michael's illegal motorcycle modifications to support its argument that Linda could not prove the City's breach of duty to adequately warn of the road closure proximately caused the fatal crash and warranted summary judgment.
Relying on Miller v. Likins, 109 Wn. App. 140, 145-46, 34 P.3d 835 (2001) (citing Johanson v. King County, 7 Wn.2d 111, 122, 109 P.2d 307 (1941)), the City argues that, because Michael was killed, Linda cannot offer any testimony to show that he was in fact deceived by the ambiguous signage and that her argument that he might have been, and probably was, deceived and misled by the ambiguous signage is too speculative to withstand the City's summary judgment motion.
We agree that the law requires that the non-moving party make a showing sufficient to establish the existence of a question of fact as to each element essential to that party's case and on which that party will bear the burden of proof at trial. Miller, 109 Wn. App. at 145 (quoting Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)). But we disagree with the City's argument, inter alia, that the required showing cannot be made if the allegedly misled party has died. Indeed, Johanson does not so hold. The Johanson court suggested that a reasonable inference that the driver of an automobile was misled or deceived by the residue of a directional yellow line in a highway that had been recently expanded would be sufficient to defeat summary judgment. 7 Wn.2d at 122. But because the Johanson plaintiff and his passenger both testified that they knew nothing of how or where the accident had happened, the trial court properly granted the City's summary judgment motion. Johanson, 7 Wn.2d at 116-17.
Proximate Cause
A. Issues of Contributory Negligence
As an initial matter, the City consistently and improperly relied on evidence of Michael's intoxication and illegal motorcycle modifications to support its summary judgment motion. Throughout its arguments, both at the trial court and in its briefing on appeal, the City conflates evidence of Michael's intoxication and his unlawfully modified motorcycle with the issue of proximate cause. First, we note that a collision may have more than one cause. Brashear, 100 Wn.2d at 207. And that evidence of Michael's intoxication and modified motorcycle are issues of contributory negligence. See, e.g., Geschwind v. Flanagan, 121 Wn.2d 833, 838, 854 P.2d 1061 (1993) (passengers may be contributorily negligent in causing their own injuries by voluntarily riding in a car with a driver they know, or reasonably should know, is intoxicated). The City cannot defend its summary judgment by arguing that Michael was contributorily negligent. If the City maintains Michael's negligence contributed to its own, then it is admitting its own negligence. And, if there is evidence of the City's initial negligent act, then summary judgment is inappropriate. See Ford v. Chaplin, 61 Wn. App. 896, 901, 812 P.2d 532 (citing Bertsch v. Brewer, 97 Wn.2d 83, 92, 640 P.2d 711 (1982)), review denied, 117 Wn.2d 1026 (1991).
B. Statutory Violations
First, Linda contends that the City's failure to abide by former WAC 296-155-305 and industry standards regarding the signage, lighting, and flagger positioning was a proximate cause of Michael's accident. The signage, lighting, and flagger issues are evidence of breach of duty, which the City concedes; the issue for summary judgment, however, is whether Linda provided sufficient evidence of whether the City's breach of these duties proximately caused Michael's collision with the Ford Escort and resulted in his death. Evidence of breach of duty is not necessarily evidence of proximate cause. See Lynn v. Labor Ready, Inc., 136 Wn. App. 295, 306, 151 P.3d 201 (2006) (holding that proximate cause is distinct from duty); see also Byerly v. Madsen, 41 Wn. App. 495, 503, 704 P.2d 1236 (the question of whether a defendant-doctor breached the standard of care is separate from whether that breach was the proximate cause of the plaintiff-patient's injuries), review denied, 104 Wn.2d 1021 (1985). But such evidence may be admissible on the issue of proximate cause as well as breach of duty. See Taggart v. State, 118 Wn.2d 195, 226, 822 P.2d 243 (1992) (the question of legal causation is so intertwined with the question of duty that the former may be answered by addressing the latter).
Under former WAC 296-155-305(8)(c), there must be 500 feet between each sign leading up to a flagger. Here, the signs stated, "Be Prepared to Stop," "Utility Work Ahead," "Left Lane Closed Ahead," and "Flagger Ahead." CP at 155. The signs were 333 feet, 319 feet, and 333 feet, respectively.
Under Section 6E.05 of the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD), "[e]xcept in emergency situations, flagger stations shall be illuminated at night. . . . The flagger should stand either on the shoulder adjacent to the road user being controlled or in the closed lane prior to stopping road users. . . . The flagger should be clearly visible to the first approaching road user at all times." http://mutcd.fhwa.dot.gov/pdfs/2003rl/Ch6A-E.pdf (last visited June 17, 2008). Here, the flagger was stationed approximately 30 feet in front of the stopped Ford Escort and there were no lights other than her lighted stop paddle to illuminate her work area. It is unclear from the record if the flagger was visible to oncoming traffic.
Linda also argues that because RCW 5.40.050 provides that "`[a] breach of a duty imposed by statute, ordinance, or administrative rule [is] . . . evidence of negligence,'" that necessarily includes evidence of proximate cause. Br. of Appellant at 23 (quoting RCW 5.40.050). But we question whether the legislature intended that result because the word "negligence" is often used to describe duty, breach of duty, and injury, exclusive of proximate cause. See Mathis v. Ammons, 84 Wn. App. 411, 416, 928 P.2d 431 (1996) (citing Sys. Tank Lines v. Dixon, 47 Wn.2d 147, 151, 286 P.2d 704 (1955)), review denied, 132 Wn.2d 1008 (1997); see also Marshall, 94 Wn. App. at 377.
Here, although Michael died and is unable to testify whether he was misled by the ambiguous signage, one reasonable inference from the sign reading "Left Lane Closed Ahead" is that there was an open right lane ahead. Because the sign was placed on a two-lane highway, however, this was not the case. Additionally, although the WAC does not specifically require that warning signs be in a particular order when there is a lane closure on a two-lane road, former WAC 296-155-305(3) does require that warning signals comply with MUTCD guidelines. When there is a lane closure on a two-lane road using flaggers, the MUTCD guidelines indicate that the signs should be in the following order: (1) "Road Work Ahead," (2) "One Lane Road," (3) Be Prepared to Stop, and (4) Flagger (symbol). MUTCD § 6H-1, figs. 6H-10, 6H-24, http://mutcd.fhwa.dot.gov/pdfs/2003r1/Ch6H.pdf (last visited June 17, 2008). On the night of Michael's accident, the signage was (1) "Be Prepared to Stop," (2) "Utility Work Ahead," (3) "Left Lane Closed Ahead," and (4) "Flagger Ahead." CP at 128 (emphasis added). Here, the signage did not comply with industry standards. We hold, therefore, that Linda presented some evidence that raised a material issue of disputed fact as to whether the signage was misleading to motorists and, thus, presented some evidence that the signage was a proximate cause of the collision.
Linda relies on Breivo v. City of Aberdeen, 15 Wn. App. 520, 550 P.2d 1164 (1976), to support her proposition that any purported failure by Michael to exercise due care for his own safety does not excuse the City's duty to maintain a safe road. We note that in Breivo, we held that "[w]hether the breach, if any, was the proximate cause of the plaintiffs' injuries, or whether the [alleged] negligence of the driver superseded the City's negligence, is an entirely separate question which was properly submitted to the jury by the trial court." 15 Wn. App. at 524 (emphasis added). Thus, although Breivo is not dispositive of the proximate cause issue, it does demonstrate the proposition that proximate cause is generally an issue of fact to be resolved by the trier of fact following a trial and not a proper issue to be decided by the court on summary judgment.
The City repeatedly contends that different or more accurate signage would not have prevented the accident because Michael was intoxicated, which caused him to either fail to notice the warning signs or fail to heed the warning signs. In addition, even though the trial court did not consider it, the City argues on appeal that it is entitled to an absolute intoxication defense. These arguments suggest that if Michael incorrectly interpreted the "Left Lane Closed Ahead" sign to mean that the right lane was open to high-speed traffic, this belief was unreasonable, and Michael's intoxication contributed to his being misled. This argument includes evidence of Michael's alcohol consumption in analyzing the reasonableness of Michael's ability to notice or accurately interpret the operation of the sign on a highway with only two lanes, one in each direction. Such evidence is relevant on the jury issue of contributory negligence but not at summary judgment.
Although Washington courts have consistently held that summary judgment is warranted when the most a plaintiff can show is that an accident might not have happened if the defendant had done something differently, summary judgment is not warranted if there is evidence, such as the evidence Linda presented, that a misleading sign was a proximate cause of an accident. See Johanson, 7 Wn.2d at 122; see also Radosevich v. County Comm'rs of Whatcom County, 3 Wn. App. 602, 605, 476 P.2d 705 (1970). Accordingly, material issues of disputed fact exist regarding the ambiguity of the signage as a proximate cause of the collision and summary judgment was inappropriate.
By ruling that summary judgment is inappropriate in this case, we do not intend to suggest that Linda's response to the City's motion was sufficient to prove the improper signage and other violations of industry standards and the WACs violations alone proximately caused the fatal crash. We hold only that the City's admitted breach of duty, the ambiguity of the signage, and Steven's declaration were sufficient to create an issue over which reasonable minds could differ and defeat summary judgment. It will be for the jury to decide the extent to which the City's failure to properly sign, light, and warn motorists of the road closure and Michael's alcohol consumption and motorcycle modifications contributed to his death.
We vacate the summary judgment order 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.
ARMSTRONG, J., VAN DEREN, C.J., concur.