Opinion
No. 59834-1-I.
January 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-40588-1, Michael Heavey, J., entered April 6, 2007.
Reversed by unpublished per curiam opinion.
John VanWieringen appeals a decision granting summary judgment in favor of Shawn Sroka. Because there are genuine issues of material fact whether Sroka's negligence was a concurring proximate cause of VanWieringen's damages, we reverse the summary judgment of dismissal.
We refer to the appellants, John and Traci VanWieringen, as "VanWieringen" for convenience only.
Viewed in the light most favorable to VanWieringen, the nonmoving party, the following factual summary applies. On October 31, 2005, sixteen-year-old Shawn Sroka drove his father's sports utility vehicle (SUV) to school in Enumclaw without his father's permission. Later that day, Sroka decided to drive the SUV to McDonald's for lunch. A friend, Nick Saltarelli, came along. Two other Enumclaw High School students, Doug Leifeste and Ashley Larson, also were headed to McDonald's for lunch that day in a separate vehicle. Leifeste's vehicle was traveling behind Sroka's.
Sroka was traveling east on Warner Avenue, and he was exceeding the 35 miles per hour speed limit. The Sroka vehicle rapidly approached the rear of a truck that was also heading east on Warner. The truck signaled that it was turning left and began to brake. Just ahead of these two vehicles VanWieringen was parked on the right hand shoulder with his tractor. Sroka saw the truck's left turn signal on and thought the driver intended to make a left turn. Sroka believed he could pass the truck safely on the right, through the gap between the truck and the parked tractor. The truck, however, did not turn left, and Sroka's SUV hit the truck's right rear side. This collision blocked the east bound lane.
Leifeste saw the collision and braked, but he was unable to stop in time to avoid striking the tractor. As a result, VanWieringen, who was standing behind the tractor, was injured.
VanWieringen sued Leifeste and his parents and Sroka and his father for negligence. Sroka and his father, Christopher, moved for summary judgment, arguing that the plaintiffs failed to establish liability against Christopher under the family car doctrine. They also argued that plaintiffs failed to produce evidence that Shawn Sroka's negligence was a proximate cause of the collision between Leifeste's vehicle and VanWieringen's tractor. The Srokas argued that Leifeste, as the following driver, owed the primary duty of care to avoid a collision.
Sroka submitted a report prepared by a traffic accident reconstruction expert, Richard Chapman, in support of the assertion that Shawn Sroka's negligence was not a proximate cause of the collision between Leifeste's vehicle and the tractor. Chapman reached several conclusions, including: (1) because the road on which Sroka and Leifeste were traveling curved to the right approximately 500 feet west of where the tractor was obstructing the road, drivers like Leifeste "could more easily see the tractor" on the side of the road, and "[t]he tractor would not have been directly in front of the Sroka SUV that [Leifeste] was following until Mr. Leifeste rounded that slight right turn"; (2) because the tractor was not totally within the traffic lane, it was not totally hidden from Leifeste's view by Sroka's vehicle; (3) "[i]f Mr. Leifeste had been following the Sroka vehicle at a proper distance, his ability to see the tractor that the Sroka vehicle was approaching would have been maximized"; (4) "had Mr. Leifeste been traveling at the speed limit when Mr. Sroka moved left and exposed the tractor to him, Mr. Leifeste would likely have been able to brake to a stop short of hitting the tractor"; and (5) nothing that Sroka did caused Leifeste's truck to collide with the tractor. Ultimately, Chapman concluded that, more probably than not, the collision between Leifeste's vehicle and the tractor resulted solely from Leifeste's actions.
In response to the Srokas' motion for summary judgment, Plaintiff VanWieringen and Defendant Leifeste argued that Shawn Sroka's negligence was a concurring cause of VanWieringen's injuries. VanWieringen and Leifeste contended that Leifeste ran into the tractor to avoid crashing into Sroka's SUV and the truck. VanWieringen and Leifeste argued that if Sroka had not been speeding and driving recklessly and had not tried to shoot the gap between the truck and the tractor, Sroka would not have hit the truck, and Leifeste would not have hit the tractor.
The trial court granted the Srokas' motion for summary judgment and dismissed VanWieringen's claims against them with prejudice. The court also decided that its ruling was final and dispositive of VanWieringen's claims against the Srokas.
VanWieringen did not appeal the portion of the summary judgment order dismissing his claims against Christopher Sroka under the family car doctrine.
PROXIMATE CAUSATION
VanWieringen argues that the trial court erred by granting the Srokas' motion for summary judgment and dismissing his negligence claims against Shawn Sroka. We agree.
On appeal from a grant of summary judgment, we engage in the same inquiry as the trial court. Fairbanks v. J.B. McLoughlin Co., 131 Wn.2d 96, 101, 929 P.2d 433 (1997). The facts and reasonable inferences from the facts are considered in the light most favorable to the nonmoving party. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Summary judgment is appropriate if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c); Cerrillo v. Esparza, 158 Wn.2d 194, 200, 142 P.3d 155 (2006).
The moving party has the initial burden of demonstrating the absence of any genuine issues of material fact, entitling the moving party to judgment as a matter of law. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). The burden then shifts to the nonmoving party to set forth specific facts showing a genuine issue of material fact. Schaaf, 127 Wn.2d at 21.
In an action for negligence, the plaintiff must prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury to the plaintiff proximately caused by the breach. Hertog, 138 Wn.2d at 275. Conduct is negligent if it is unreasonable in light of a recognizable danger. Bodin v. City of Stanwood, 130 Wn.2d 726, 733, 927 P.2d 240 (1996). "Reasonable" conduct or care is "`that care which an ordinarily reasonable person would exercise under the same or similar circumstances.'" Bodin, 130 Wn.2d at 733 (quoting Berglund v. Spokane County, 4 Wn.2d 309, 315, 103 P.2d 355 (1940)). Ordinarily, therefore, whether one charged with negligence has exercised reasonable care is a question of fact. Bodin, 130 Wn.2d at 735.
"Proximate cause" generally is divided into cause in fact and legal cause. Channel v. Mills, 77 Wn. App. 268, 272, 890 P.2d 535 (1995). "A cause in fact is a cause but for which the accident would not have happened. A legal cause is a cause in fact that warrants legal liability as a matter of social policy." (Citations omitted.) Channel, 77 Wn. App. at 272-73. Whether the defendant owes a duty to the plaintiff is a question of law, but breach and proximate cause generally are questions of fact. Hertog, 138 Wn.2d at 275. Whether the defendant breached a duty and proximately caused the plaintiff's injuries may be determined as a matter of law only if reasonable minds could not differ. Hertog, 138 Wn.2d at 275.
VanWieringen alleges that both Leifeste's and Sroka's negligence caused his injuries. The negligence of two or more persons may combine to cause an injury. Mason v. Bitton, 85 Wn.2d 321, 326, 534 P.2d 1360 (1975). "Where a defendant's original negligence continues, and contributes to the injury, the mere fact another's intervening negligent act is a further cause of the accident does not prevent defendant's act from constituting a cause for which he is liable." Doyle v. Nor-West Pac. Co., 23 Wn. App. 1, 6, 594 P.2d 938 (1979). A defendant's actions are the cause in fact of the plaintiff's injuries if the defendant's actions produced the plaintiff's injuries and the intervening cause was reasonably foreseeable. McCoy v. Am. Suzuki Motor Corp., 136 Wn.2d 350, 358, 961 P.2d 952 (1998). An intervening negligent act of another supersedes the original actor's negligence as a proximate cause of an injury only if the intervening negligence is so highly extraordinary or unexpected that it is not within the realm of reasonable foreseeability. Doyle, 23 Wn. App. at 6-7. If the intervening cause was unforeseeable, the causal connection between the defendant's negligence and the plaintiff's injuries is broken. McCoy, 136 Wn.2d at 358.
Ordinarily, whether an independent cause is reasonably foreseeable is a question of fact for the jury. The issue may be resolved as a matter of law, however, if there is no question that the intervening cause was unforeseeable. McCoy, 136 Wn.2d at 358.
Sroka argues that there is no evidence that he proximately caused the collision between Leifeste's vehicle and the tractor and, therefore, the trial court properly granted his motion for summary judgment. We disagree.
In response to the summary judgment motion, VanWieringen and Leifeste provided excerpts from the depositions of Sroka and Leifeste and their passengers. Sroka, himself, testified that the incident was his fault and would not have happened if he had not been speeding. He said that although he slowed down when the truck first pulled out, he sped up to pass it. When asked whether he could have slowed down to avoid colliding with the truck, Sroka agreed that was an option.
Sroka's passenger, Saltarelli, testified that Sroka was traveling approximately 50 miles per hour, much faster than the truck ahead of them. In Saltarelli's opinion, Sroka should have slowed down earlier, rather than trying to "whip through" the space between the truck and the tractor on the right shoulder: "[Sroka] did have time beforehand to brake but he was being, you know, cocky or whatever. . . ."
Leifeste, the driver of the vehicle following Sroka's, testified that he did not see the tractor until Sroka hit the truck. Leifeste said he was "probably 100 feet" behind Sroka's vehicle when it collided with the truck. According to Leifeste, his speed never exceeded 35 miles per hour, and he did not have room to avoid the tractor because the collision between Sroka's vehicle and the truck blocked the road.
Leifeste's passenger, Larson, said Sroka did not brake or signal before the crash. She thought she and Leifeste were traveling about 50 feet behind Sroka's vehicle.
In short, this evidence shows that there are genuine issues of material fact whether Sroka was negligent and proximately caused VanWieringen's injuries. A trier of fact could reasonably conclude that Sroka's negligence was a concurrent factor in causing VanWieringen's injuries.
Sroka argues that VanWieringen relied upon mere allegations, speculation, or conjecture to create an issue of fact and, hence, he did not provide competent evidence showing the existence of a genuine issue of material fact for trial. See Young v. Key Pharms., Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989) (if moving party shows the absence of an issue of material fact, the nonmoving party must set forth specific facts showing there is a genuine issue of fact for trial), overruled on other grounds, 130 Wn.2d 160, 922 P.2d 69 (1996). But the testimony of Sroka, Leifeste, and their passengers indicates that Sroka's negligence may have been a concurring cause of VanWieringen's injuries.
Sroka, nevertheless, cites the Channel case, as authority that Sroka's speeding, although a cause of the collision with the truck, was not a cause in fact of Leifeste's collision with VanWieringen's tractor. Channel held that speed is not a proximate cause of an accident if it does nothing more than bring a favored driver (the driver with the right of way) and a disfavored driver to the same location at the same time, and the favored driver has a right to be at that location. Channel, 77 Wn. App. at 277. Channel is distinguishable. Sroka's negligence was not confined to speeding. It also included trying to pass between the truck in front of him and the tractor, causing a collision and road blockage that Leifeste unsuccessfully sought to avoid.
Sroka also contends that, although he was culpable for the collision with the truck, VanWieringen's evidence was not sufficient to make him liable for VanWieringen's injuries because his SUV did not hit VanWieringen or his tractor. But a driver need not strike a victim directly to be held liable for the victim's harm. See Anderson v. McClaren, 114 Wash. 33, 194 P. 828 (1921).
Sroka further argues that the trial court's decision was correct because the following car doctrine applies. Under the following car doctrine, "[w]hen one vehicle is following another vehicle, the primary duty of avoiding a collision rests upon the driver of the following vehicle." WPI 70.04; see also Szupkay v. Cozzetti, 37 Wn. App. 30, 678 P.2d 358 (1984). The doctrine does not apply in this case because Leifeste did not collide with Sroka's vehicle, and thus the issue is not who had the primary duty to avoid a collision between the following driver and the favored driver.
Finally, Sroka contends that, even if the collision between Leifeste's vehicle and VanWieringen's tractor would not have happened but for Sroka's collision with the truck, Leifeste's negligence became an intervening cause that cut off Sroka's liability because Sroka's negligence was not foreseeable. Sroka argues that he could not have foreseen that Leifeste would fail to see the tractor, which in Chapman's opinion, was clearly visible. But Chapman's report establishes only that Leifeste could have seen the tractor before Sroka swerved to avoid it. The report states that, if Leifeste had been following Sroka at a proper distance, Leifeste's ability to see the tractor would have been "maximized." But the witnesses dispute how closely Leifeste was following Sroka and how fast their vehicles were traveling. Moreover, although Leifeste may have been able to see the tractor before Sroka swerved, the record is not clear whether Leifeste would have been able to see that the tractor was blocking the roadway. Chapman's report is equivocal about the tractor's location and does not establish that Leifeste should have seen that it was in the road:
The rear wheels of the tractor may have been in the eastbound lane but the front of the tractor, including what may have been a hydraulically operated bucket, was described as being off to the right of the eastbound lane. This means that the tractor was not totally hidden from Mr. Leifeste's view by the small, Sroka SUV. . . .
At best, the report only demonstrates that genuine issues of material fact remain for trial.
We reverse the summary judgment order of dismissal.