Cho v. City of Seattle

341 P.3d 309, 185 Wash. App. 10
Court of Appeals of Washington·Decided October 20, 2014·No. No. 70727-2-I·Published·Cited by 20 cases

Opinion

¶ 1 A party must provide sufficient competent evidence to establish the essential elements of the action or, at the very least, a genuine issue of material facts as to those elements. Here, an inattentive drunk driver struck the plaintiff and several pedestrians in an unmarked crosswalk. The plaintiff’s assertion that had the city of Seattle (City) installed a pedestrian island, she would have stopped and waited for all oncoming traffic to proceed before continuing to cross the street is speculation that does not establish proximate cause. Further, under the circumstances here, where traffic had already stopped to permit pedestrians to proceed across the street and several were in the process of doing so when defendant’s vehicle struck them, an island would not have prevented the [13]*13accident. Nor would a traffic light have helped since the driver unequivocally stated that she was not looking ahead before she struck the pedestrians. Summary judgment dismissal of the plaintiff’s claims against the City was proper.

Trickey, J.

[13]*13FACTS

¶2 On October 28, 2010, a drunk driver, Juanita Carpenter a/k/a Juanita Mars (Mars), struck and hit Jane Cho and other pedestrians crossing First Avenue South in a lighted, unmarked crosswalk. The complaint stated that Cho was walking westbound on a public street, within an unmarked crosswalk. She had already crossed the northbound lanes and one-half of the southbound lanes of First Avenue South when Mars’ vehicle struck her and four other pedestrians.1

¶3 Mars was charged with multiple felonies as a result of the drunk-driving accident.2 On February 1, 2011, she signed and filed a statement of defendant on plea of guilty (nonfelony) as to the charge of reckless driving (count IV), stating:

In King, County, WA on 10/28/10,1 drove in willful and wanton disregard for the safety of people and property. I was driving on 1st Avenue downtown after drinking alcohol, to wit: I knew I was drinking to excess and was not focusing on my driving and failed to slow while approaching an intersection with a large group of pedestrians and ignored the waving of a construction worker.

¶4 On February 22, 2011, Mars pleaded guilty to multiple criminal counts of vehicular assault-DUI (counts I, II, and III). At entry of her plea to these crimes, Mars signed a statement:

[14]*14(1) In King County, WA, on 10/28/10,1 drove a motor vehicle while under the influence of alcohol and caused substantial bodily harm to Joanne Wegner and Timothy Syverson, when I was driving on 1st Ave. I had consumed alcohol and was driving downtown when I hit Ms. Wegner and Mr. Syverson.
(2) In the same place and time, in King County, I drove a motor vehicle while under the influence of alcohol and caused substantial bodily harm to Judy Ha. I was drunk and driving on 1st Ave, when I hit Ms. Ha.
(3) In King County, WA, in the same place and time, I was driving a motor vehicle under the influence of alcohol and caused substantial bodily harm to Jane Cho. I was driving drunk on 1st Avenue, when I hit Ms. Cho.[4]

Mars had a blood-alcohol level of 0.29, three and a half times the legal limit.5

¶5 Showbox employees testified that it was difficult to cross First Avenue South prior to the City’s installation of lights at that crossing.6 However, this difficulty arose during sporting events. There were no sporting events that evening. Showbox has room for 1,600 to 2,000 people.7 The show was close to sold out if not sold out.8 A witness testified that the pickup truck driven by Mars did not slow down until after it struck the pedestrians.9

¶6 Both Showbox and the City moved for summary judgment. The trial court granted both motions and dismissed the action. Cho appeals only the dismissal of her negligence claims against the City. The City contends that its failure to install a light, a pedestrian crossing, or an island did not proximately cause the accident.

[15]*15ANALYSIS

Standard of Review

¶7 A motion for summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

¶8 In a motion for summary judgment, the moving party bears the initial burden of showing that no material fact exists. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The burden then moves to the nonmoving party to “ ‘make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). In meeting this burden, the nonmoving party cannot rely solely on allegations made in its pleadings, but “ ‘must set forth specific facts showing that there is a genuine issue for trial.’ ” Young, 112 Wn.2d at 225-26 (quoting CR 56(e)). If the nonmoving party does not meet its burden, “ ‘there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.’ ” Young, 112 Wn.2d at 225 (internal quotation marks omitted) (quoting Celotex Corp., 477 U.S. at 322-23).

¶9 This court reviews summary judgment orders de novo, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party. Lowman v. Wilbur, 178 Wn.2d 165, 168, 309 P.3d 387 (2013); Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000). Issues of negligence and causation in tort actions are questions of fact not usually susceptible to summary judgment, but a question of fact may be determined as a matter of law where reasonable minds can reach only one conclusion. Moore v. Hagge, 158 Wn. App. 137, 147-48, 241 P.3d [16]*16787 (2010). “Questions of fact may be determined as a matter of law ‘when reasonable minds could reach but one conclusion.’ ” Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005) (quoting Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985)).

Proximate Cause

¶10 The fact that an accident occurred does not, by itself, necessarily give rise to an inference of negligence. Marshall v. Bally’s Pacwest, Inc., 94 Wn. App.

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Cho v. City of Seattle, 341 P.3d 309, 185 Wash. App. 10 (Wash. Ct. App. 2014).

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