Anthony Stogin, V. Kathleen Prausa, Et Ano

• Court: Court of Appeals of Washington
• Decided: April 25, 2022
• Docket: 83098-8
• Status: Unpublished

Opinion

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

ANTHONY STOGIN, an individual, No. 83098-8-I

Appellant, DIVISION ONE

v. UNPUBLISHED OPINION

KATHLEEN PRAUSA and JOHN DOE PRAUSA, husband and wife and the marital community composed thereof,

Respondents.

ANDRUS, C.J. — Anthony Stogin appeals the summary judgment dismissal

of his negligence action against Kathleen Prausa arising out of a collision in which

Stogin struck Prausa’s vehicle from behind while riding his motorcycle. Because

Stogin failed to raise a genuine issue of material fact as to breach and causation,

we affirm.

FACTS

On March 26, 2016, Anthony Stogin, driving a motorcycle, struck the rear

of Kathleen Prausa’s Hyundai Elantra. The collision occurred as the parties were

traveling westbound on 84th Street NE in Marysville. As both vehicles approached

the intersection with 115th Avenue NE, Prausa came to a stop. Stogin, who was

following Prausa’s car, collided with the rear of her vehicle.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 83098-8-I/2

The roadway at issue is straight and level with no sight obstructions. The

weather on the day of the collision was sunny and dry. Stogin testified that as he

crested a hill, he saw Prausa pull out from the side of the road in front of him,

accelerate, and then abruptly and unexpectedly stop. Prausa denied pulling out

onto 84th Street in front of Stogin. She testified that she was driving her daughter

to school and as she approached the intersection of 84th Street NE and 115th

Avenue NE, she stopped because there were cars lined up at the intersection with

the lead car making a right turn onto 115th Avenue NE. The two cars immediately

in front of her were at a complete stop and Prausa stopped as well. She checked

her rear view mirror and saw a motorcycle approaching at an accelerated speed.

Stogin’s motorcycle hit the rear of her vehicle, throwing him into a ditch and causing

several injuries, including a serious leg fracture.

Stogin alleged his injuries were the result of Prausa’s negligence. On

summary judgment, Prausa submitted the testimony of accident reconstructionist,

David Wells. Wells opined that the physical evidence supported Prausa’s version

of events because her car was squarely in her lane of travel when Stogin struck it,

the motorcycle struck the right rear corner of her bumper, and Stogin’s handlebars

left scuff marks on the rear quarter panel of the car. This evidence established,

according to Wells, that Prausa could not have been pulling out into Stogin’s lane

of traffic from the right side of the road when the collision occurred. Had she been

in this position, Wells opined, Stogin would have struck the left side, and not the

right side, of Prausa’s car.

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Wells also testified that even if Prausa had pulled out in front of Stogin, the

evidence supported the conclusion that Stogin would have had 159.7 feet in which

to stop and avoid the accident, leaving him “plenty of room to steer around the

hazard, or [to] apply the brakes and stop before reaching the potential impact

area.” Wells found no evidence to indicate Prausa stopped her car any more

suddenly “than a normal, reasonable driver,” as the police report indicated no skid

marks and her airbags did not deploy. After Stogin was deposed, Wells

supplemented his opinions and concluded that Stogin had a minimum of 314 feet

to perceive Prausa and to slow down or stop before impacting the rear of the

Hyundai.

In response, Stogin submitted the testimony of his collision

reconstructionist, Bryan Jorgensen, who agreed with Wells on many aspects of

how the accident occurred. He stated that, according to Stogin, when he first saw

Prausa’s car, he backed off the throttle and allowed his motorcycle’s engine

compression to slow the bike because Stogin believed Prausa was accelerating.

Jorgensen, like Wells, stated that “though it prompted an immediate response from

Stogin[, it] was not exactly an emergency since he was over 200 ft. away.” He

believed the physical evidence did not rule out Prausa’s version of events or

Stogin’s version of events. And he believed that had Prausa accelerated, rather

than braked, Stogin could have avoided the collision. But Jorgensen stated that

Prausa’s car “was not so close to the lead vehicle that a sudden full braking was

needed or expected.” And given the manner in which she braked, Jorgensen

contended that Stogin had to respond in some fashion, and “a reasonable motor

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vehicle operator (whether car or motorcycle) could be trapped by the sudden

change of actions of a lead driver.”

In a subsequent report, Jorgensen stated that when Prausa “first pulled out

onto the roadway[,] Stogin was far enough away that he let up on the throttle and

allowed the bike (still in 4th gear) to compression brake. The gradual slowing was

to allow the Elantra driver sufficient time-distance to accelerate up to roadway

speed.” He concluded that

[h]ad Prausa continued to accelerate even at normal levels and Stogin continued compression braking alone, his closest approach would have been approximately 70 ft. Thus, Stogin's choice to moderate his speed and allow the lead Prausa vehicle to get up to speed was appropriate. ....

The choice by Prausa to brake hard without an emergency reason was inappropriate and poor driving tactics and was the proximate cause for the collision.

The trial court granted Prausa’s summary judgment motion and dismissed

Stogin’s lawsuit. Stogin appeals.

ANALYSIS

Stogin contends the trial court erred in dismissing his claim because Prausa

owed him a duty of care not to pull out in front of him and brake unexpectedly and

his expert testimony established a genuine issue of material fact on the question

of breach and causation. We disagree.

Appellate courts review a summary judgment order de novo and perform

the same inquiry as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC,

196 Wn.2d 199, 205, 471 P.3d 871 (2020). Courts view the evidence and all

reasonable inferences in the light most favorable to the nonmoving party and will

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grant summary judgment only where there are no genuine issues of material fact.

Fed. Way Sch. Dist. No. 210 v. State, 167 Wn.2d 514, 523, 219 P.3d 941 (2009).

To create a triable issue on his negligence claim, Stogin must present

evidence of (1) a duty, (2) a breach, (3) a resulting injury, and (4) proximate cause.

N.L. v. Bethel Sch. Dist., 186 Wn.2d 422, 429, 378 P.3d 162 (2016).

Stogin first argues that Prausa breached a duty she owed to Stogin by

violating two traffic statutes, RCW 46.61.365 and RCW 46.61.205. RCW

46.61.365 states that “[t]he driver of a vehicle . . . upon entering the roadway shall

yield the right-of-way to all vehicles approaching on said roadway.” Similarly, RCW

46.61.205(1) states: “The driver of a vehicle about to enter or cross a highway from

a private road or driveway shall yield the right-of-way to all vehicles lawfully

approaching on said highway.”

Even if Prausa had a duty to yield to approaching traffic when entering 84th

Street NE, Stogin presented no evidence that Prausa caused the collision by failing

to yield to Stogin. Cause in fact refers to the “but for” consequences of an act—

the physical connection between an act and an injury. Hartley v. State, 103 Wn.2d

768, 777, 698 P.2d 77 (1985). Proximate cause is “a cause which in a direct

sequence, unbroken by any new independent cause, produces the [injury] [event]

complained of and without which such [injury] [event] would not have happened.”

Id. at 778 (quoting W ASHINGTON PATTERN JURY INSTRUCTIONS 15.01).

Stogin could not estimate how far he was from Prausa’s vehicle when he

crested a hill and saw her enter the roadway. But he stated that when he did, he

did not have to hit his brakes and he simply “let off the throttle” because he thought

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Prausa was accelerating. Jorgensen stated that “[a]t no time did Stogin ever state

that the Prausa vehicle was still entering the roadway when he struck it.” Based

on Stogin’s account, Jorgensen concluded that Stogin had enough time to employ

a “staggered” response to Prausa’s act of pulling out onto the road. Jorgensen

described Stogin as “back[ing] off the throttle” for three seconds and concluded

that there was no emergency because Stogin was over 200 feet away from

Prausa’s car when it pulled onto the road. This evidence directly contradicts the

contention that Prausa’s failure to yield to oncoming traffic was the proximate

cause of this collision. Prausa’s expert, Wells, agreed that even if Prausa had

pulled onto the road in front of Stogin, she did so with enough time and distance

for Stogin to avoid a collision. It was thus undisputed that Prausa’s failure to yield

to Stogin did not cause this accident.

Indeed, Jorgensen attributed the accident, not to Prausa’s failure to yield,

but instead to her “sudden braking for allegedly no reason.” However, Stogin has

also failed to establish any evidence that Prausa’s act of braking constituted a

breach of her duty to operate her motor vehicle in a reasonable manner.

Generally, the following driver holds the primary duty of avoiding a rear-end

collision and is negligent if he runs into the car ahead, absent an emergency or

unusual situation. See Riojas v. Grant County. Pub. Util. Dist., 117 Wn. App. 694,

698, 72 P.3d 1093 (2003). To discharge the primary duty, the following driver must

allow for all actions of the preceding driver that can reasonably be anticipated,

including abrupt stops at intersections. Rhoades v. DeRosier, 14 Wn. App. 946,

949, 546 P.2d 930 (1976).

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Even in the event of an emergency, the following driver has a duty “to keep

such distance from the car ahead and maintain such observation of that car that

an emergency stop may be safely made.” Miller v. Cody, 41 Wn.2d 775, 778, 252

P.2d 303 (1953). RCW 46.61.145(1) prohibits drivers from following another

vehicle “more closely than is reasonable and prudent, having due regard for the

speed” of the lead vehicle and the traffic on and condition of the highway.

The following driver is relieved of this primary duty only when circumstances

create an “extreme emergency, making collision unavoidable.” Ray v. Cyr, 17 Wn.

App. 825, 828, 565 P.2d 817 (1977). The lead driver may not act in “an unusual,

unexpected manner that reasonably could not be anticipated.” Rhoades, 14 Wn.

App. at 949 (lead driver accelerated to run yellow light and then slammed on his

brakes just after entering intersection; following driver unable to stop on wet

pavement). But to create a question of fact on summary judgment, the following

driver must present evidence that the lead driver engaged in unusual conduct that

the following driver could not have anticipated. Id.

Stogin lacks this evidence. Stogin argues that Prausa created an

emergency situation by unexpectedly slamming on her brakes. But even if she

braked suddenly, Stogin cannot establish that Prausa lacked a valid reason for

doing so. Prausa provided evidence that she came to a complete stop near the

intersection because there was a line of three cars stopped in front of her. Stogin

had no idea whether Prausa had to stop to avoid these cars.

Although Jorgensen opined that Prausa’s car “was not so close to the lead

vehicle that a sudden full braking was needed or expected,” the only facts on which

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he relies to draw this conclusion are the absence of a stop sign at the intersection

of 84th Street NE and 115th Avenue NE and his opinion that there was no need for

a right-turning vehicle to stop at the intersection. But he cannot dispute Prausa’s

testimony that there were three cars, not just one, ahead of her and that all of them

had come to a complete stop with the lead car making a turn off the road. Whether

there was a stop sign, or whether the lead car was legally obligated to stop, it is

undisputed the cars were at a full stop. Stogin agreed that if cars in front of Prausa

were braking, she would need to brake as well to avoid a collision.

Jorgensen’s characterization of Prausa’s driving, without evidence, is mere

speculation. “Expert opinions must be based on the facts of the case and will be

disregarded entirely where the factual basis for the opinion is found to be

inadequate.” Hash by Hash v. Children’s Orthopedic Hosp., 49 Wn. App. 130, 135,

741 P.2d 584 (1987) (citing Prentice Packing & Storage Co. v. United Pac. Ins.

Co., 5 Wn.2d 144, 106 P.2d 314 (1940)), aff’d, 110 Wn.2d 912 (1988). “In the

context of a summary judgment motion, an expert must back up his opinion with

specific facts.” Id. (citing United States v. Various Slot Machines on Guam, 658

F.2d 697, 700 (9th Cir. 1981). Jorgensen’s opinion testimony that Prausa did not

have to brake as quickly as she did is not supported by any specific factual

evidence.

The only evidence Stogin presented is that Prausa stopped abruptly.

Evidence that the lead driver made an abrupt stop, by itself, is insufficient to raise

a jury question on the issue of negligence of that driver. Bonica v. Gracias, 84

Wn.2d 99, 100-01, 524 P.2d 232 (1974). Stogin argues Bonica is distinguishable

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because in that case, the collision occurred on a freeway entrance ramp, where

the court said “abrupt stops should be anticipated.” Id. at 100. But this distinction

is immaterial. We cannot conclude that abrupt stops at intersections are less

unexpected than abrupt stops on freeway entrance ramps.

On this record, there is no basis for a jury to conclude that Prausa acted in

a manner that could not be anticipated given her proximity to stopped vehicles at

an intersection. There is thus no genuine issue of material fact on the issue of

Prausa’s negligence and the trial court did not err in granting her motion for

summary judgment.

Affirmed.

WE CONCUR:

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