Opinion
No. 29555-5-II.
Filed: February 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County. Docket No. 00-2-01244-2. Judgment or order under review. Date filed: 08/24/2001. Judge signing: Hon. David E Foscue.
Counsel for Appellant(s), Jack Lee Burtch, Attorney at Law, 218 N Broadway St, PO Box a, Aberdeen, WA 98520-0247.
Counsel for Respondent(s), Mark Carl Dean, Kingman Peabody Pierson Fitzharris, 505 Madison St. Ste 300, Seattle, WA 98104.
Ruby Travis appeals from the trial court's summary judgment dismissing her medical negligence claims and denying her motions for a continuance and for reconsideration. We affirm.
FACTS
Travis received rehabilitation care from Apply Physical Therapy Clinic. On October 9, 1997, 80-year-old Travis attended her last planned visit following shoulder surgery. The therapist left Travis alone in order to retrieve a heating pad.
While unattended, Travis had a sudden need to use the restroom. She hurried to the bathroom which was across the hall. Travis locked the door, soiled herself, and attempted to clean up both herself and her underwear using water splashed from the toilet bowl.
Travis later said that she did not believe the floor was wet after she did this. But she slipped in the bathroom and fell, breaking her left leg and her right arm.
On October 5, 2000, Travis filed a lawsuit claiming that `in providing health care . . . [Apple] failed to exercise that degree of skill, care, and learning expected of a reasonable and prudent health care provider of physical therapy.' Clerk's Papers (CP) at 2. She did not otherwise allege negligence.
Via deposition, Travis testified that although no one helped her in the bathroom at home, her daughter would go with her if she were out at a restaurant, but that she had never asked an Apple employee to accompany her into the bathroom. Travis further said that she would have asked an Apple employee to come into the bathroom with her on the day she fell because she `was in a bad way.' CP at 137.
She testified that she never had needed to use the bathroom while at therapy.
On July 2, 2001, Apple moved for summary judgment. On July 19, Travis sought a continuance of the summary judgment proceeding in order to engage in additional discovery and to file an expert opinion supporting her claims. The trial court denied Travis's motion for a continuance. It granted Apple's motion for summary judgment, finding `there's just no genuine issue of material facts.' Report of Proceedings (RP) at 23.
Travis asked the court to reconsider its summary judgment ruling based on a recently retained expert's affidavit. The trial court declined to review the expert affidavit and denied reconsideration. Travis appeals.
ANALYSIS Summary Judgment
Travis first contends that the trial court erred in entering summary judgment, arguing that issues of material fact remain whether Apple breached a duty to her.
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or 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). The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437.
We first note that Travis's complaint alleges only medical malpractice under chapter 7.70 RCW and not common law negligence. RCW 7.70.030 sets forth the three bases for an award in an action based on health care. Branom v. State, 94 Wn. App. 964, 969, 974 P.2d 335, review denied, 138 Wn.2d 1023 (1999). The one at issue here is whether Travis's `injury resulted from the failure of a health care provider to follow the accepted standard of care.' RCW 7.70.030(1).
To prevail, a plaintiff must show that `(1) [t]he health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances; [and] (2) [s]uch failure was a proximate cause of the injury complained of.' RCW 7.70.040. Expert testimony is usually necessary to establish the accepted standard of care. McLaughlin v. Cooke, 112 Wn.2d 829, 836, 774 P.2d 1171 (1989). Whereas common law negligence requires duty, breach, and resulting harm and may or may not require an expert opinion. Hutchins v. 1001 Fourth Ave. Assoc., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991).
Generally, no duty requires one to assist another. Zenkina v. Sisters of Providence in Wash., Inc., 83 Wn. App. 556, 561-62, 922 P.2d 171 (1996), review denied, 131 Wn.2d 1003 (1997); Webstad v. Stortini, 83 Wn. App. 857, 865, 924 P.2d 940 (1996), review denied, 131 Wn.2d 1016 (1997). In order to establish a duty here, Travis had to either submit expert testimony of medical duty or demonstrate that one otherwise arose from her relationship with Apple. She fails to establish a duty under either option.
Travis failed to submit an expert opinion that Apple owed her a duty. At the time of the summary judgment hearing, Travis had introduced no expert testimony to support her claim.
Nevertheless, Travis asserts she need not submit expert testimony because her `case is one where lay people can determine whether or not there was negligence.' Appellant's Brief at 9. But her argument fails because she sets forth no facts supporting a duty not to leave her alone during therapy or a duty to assist her to the bathroom. There is simply no evidence in this record that Travis could not be left alone or routinely needed assistance to the bathroom or that, on this occasion, she needed such help. Accordingly, the trial court properly granted summary judgment in favor of Apple.
Motion for Continuance
Travis further contends that the trial court erred by denying her motion for a continuance to obtain an expert witness. Travis' attorney sought a continuance, asserting that he was `attempting to accumulate the funds for [the retention of an expert witness]' and that he needed more time for discovery. CP at 46.
We will overturn a trial court order denying a continuance only if the trial court committed a manifest abuse of discretion. Willapa Trading Co. v. Muscanto, Inc., 45 Wn. App. 779, 785, 727 P.2d 687 (1986). A trial court abuses its discretion when it exercises it on untenable grounds or for untenable reasons. Loeffelholz v. Citizens for Leaders with Ethics Accountability now (C.L.E.A.N.), ___ Wn. App. ___, 82 P.3d 1199 (2004). Here, the trial court denied the motion and explained that `[t]here was no basis for a continuance here. There's not even — not even any suggestion what will be shown if these materials were gotten. And . . . it is four years after the accident occurred. Motion will be denied.' RP at 9. Travis does not contradict the court's reasoning in denying the continuance, but instead she notes that an indigent person must be allowed an opportunity to participate in the judicial process. In doing so, Travis mixes issues of the constitutional rights of indigent criminal defendants with the responsibilities of civil plaintiffs. The trial court did not commit a manifest abuse of discretion in denying her motion for a continuance.
Motion for Reconsideration
Finally, Travis contends that the trial court erred in denying her motion for reconsideration of its summary judgment order. We review the denial of a motion for reconsideration for abuse of discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002).
The parties agree that a motion for reconsideration on the basis of new evidence should be granted only when the evidence (1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial even with the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.
Graves v. Dep't of Game, 76 Wn. App. 705, 719, 887 P.2d 424 (1994). The absence of any one of these five factors justifies denial of a new trial. Graves, 76 Wn. App. at 718-19. Travis merely argues that her motion for reconsideration satisfies these five requirements, but she does not explain how it does so. As the moving party, she bears the burden of meeting these requirements. CR 59(b); State v. Swan, 114 Wn.2d 613, 641, 790 P.2d 610 (1990). She has not done so here and her argument fails.
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.
SEINFELD, P.J. and ARMSTRONG, J., concur.