Opinion
No. 25871-8-III.
November 6, 2007.
Appeal from a judgment of the Superior Court for Yakima County, No. 04-2-00302-3, C. James Lust, J., entered February 5, 2007.
Reversed by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Brown, J.
As James Restucci drove his pickup truck in the outside lane of a divided highway, he accelerated around a semitruck and trailer that was decelerating. Mr. Restucci's pickup broadsided a compact car that had rested in the inside lane after that driver had lost control on the icy roadway. The driver of the compact car, Aaron Vertefeuille, was killed, and his wife and infant son were injured. In the ensuing legal action, the trial court granted summary dismissal. The estate and family of Mr. Vertefeuille appeal. They contend that the trial court did not view the evidence in the light most favorable to them and that a reasonable jury could conclude that Mr. Restucci was liable for negligence. We agree and reverse.
FACTS
On the cold evening of January 28, 2001, Aaron Vertefeuille was driving his 1988 Mercury Tracer home to Bremerton after visiting family in Idaho. His wife, Danielle, was seated in the front passenger seat, and their infant son, Tyler, was strapped into an infant car seat in the back. The Vertefeuille family was traveling westbound in the inside lane on I-82. As it slowly crept up on a 1965 International Scout that was going about 60 mph, the Vertefeuille car spun out due to ice on the overpass crossing the Yakima Valley Highway.
The driver of the Scout slowed down and moved to the right to give the Vertefeuille vehicle some room. The Vertefeuille car came to rest perpendicular to the roadway along the inside lane and shoulder. Other westbound vehicles began to slow and stop in response to the Vertefeuilles' spinout. Among the slowing traffic was a semitruck traveling in the outside lane.
Behind the semitruck was a 1997 full-sized Ford pickup driven by Mr. Restucci, who had the cruise control engaged and set at 70 mph. Mr. Restucci was returning his minor son to his ex-wife in Selah after weekend visitation.
As the semitruck slowed to a stop, Mr. Restucci sped around it, impatient to see "what was going on" and concerned that the slowing traffic would cause him to be late for his scheduled return of his son. Clerk's Papers (CP) at 79. Mr. Restucci noticed that the semitruck "started to slow down drastically" and saw other break lights in the outside lane. Id. Mr. Restucci's pickup had passed the cab of the semitruck by the time he saw the Vertefeuille car. Mr. Restucci braced himself for a crash and ducked down.
The driver of the Scout pulled over at the end of the overpass and stopped at the side of the road in time to see the collision in his rearview mirror. Mr. Restucci's pickup slammed into the driver's side door area of the Vertefeuille vehicle. The semitruck driver, who saw the collision occur directly in front of him, did not see the pickup attempt to brake before the collision.
In granting Mr. Restucci's motion for summary judgment, the trial court held that based on the undisputed facts, the accident was unavoidable.
DISCUSSION
When reviewing a summary judgment order, an appellate court engages in the same inquiry as the trial court. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Folsom, 135 Wn.2d at 663. The moving party bears this burden of proof. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The motion should be granted only if, from all the evidence, a reasonable person could reach only one conclusion. Folsom, 135 Wn.2d at 663. Facts and reasonable inferences from the facts are considered in the light most favorable to the nonmoving party. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999).
The trial court here held that because the roadway curved slightly to the right, Mr. Restucci could not see the Vertefeuille vehicle because the semitruck was in the way. And, the court held, Mr. Restucci could not steer around the collision due to the position of the Vertefeuille vehicle in the roadway. Speed, the court held, was not a cause of this accident. We conclude that the Vertefeuilles have presented an issue of fact as to whether a reasonable person would have slowed with the flow of traffic, rather than have accelerated around the semitruck, not knowing why the traffic had slowed.
Even if, as Mr. Restucci argued, the semitruck or the curvature of the roadway operated to obstruct Mr. Restucci's view — and the Vertefeuilles presented evidence from the semitruck operator that Mr. Restucci's view was not obstructed — the question remains whether a reasonable person would speed blindly into a curve when the traffic all around him is stopping. See Pakka v. Fitzpatrick, 53 Wn.2d 356, 333 P.2d 917 (1959) (holding that where the defendant's view was purportedly obstructed, it was reversible error for the trial judge to instruct the jury on unavoidable accident since the automobile driver could have remedied the visibility problem with proper care); Weihs v. Watson, 32 Wn.2d 625, 203 P.2d 350 (1949) (holding that the issue of whether a motorcycle is being driven at excessive speed under existing conditions is a question for jury).
The Vertefeuilles presented ample evidence that other vehicles immediately ahead of Mr. Restucci were able to come to a stop before reaching the Vertefeuille vehicle. Whether Mr. Restucci could not stop to avoid the collision is an issue of reasonableness for the jury to determine.
Reversed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SWEENEY, C.J., Concur.