FILED NOVEMBER 17, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
GILBERTO CANTU, a single person, ) No. 37149-2-III ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) ADAMS COUNTY, ADAMS COUNTY ) SHERIFF’S DEPARTMENT, SHERIFF ) DALE J. WAGNER, and DEPUTY ) DARRYL BARNES, ) ) Respondents. )
LAWRENCE-BERREY, J. — Gilberto Cantu brought suit to recover damages for an
ankle injury he sustained while fleeing on his bicycle and being unintentionally struck by
Deputy Darryl Barnes’s patrol car. The trial court dismissed Cantu’s suit on summary
judgment. We affirm.
FACTS Domestic dispute
On April 3, 2015, the Adams County Sheriff’s Office received a call about a man
beating up a woman in a homeless encampment in Othello, Washington. The caller told
dispatch “he believed the male was going to kill the female.” Clerk’s Papers (CP) at 65. No. 37149-2-III Cantu v. Adams County
Sheriff’s deputies arrived on the scene and found the woman, who reported that Gilberto
Cantu had assaulted her.
Pursuit, collision, and arrest
The next morning, Deputy Darryl Barnes saw a report noting there was probable
cause to arrest Cantu for assault.1 Around 1:00 p.m., Deputy Barnes saw Cantu, who he
knew from previous encounters, riding his bicycle near a local motel. Deputy Barnes
activated his patrol lights and used his car’s public address system to order Cantu to stop.
The patrol car’s video shows what happened.
Cantu continued biking, weaving through parking lots and public streets. Deputy
Barnes followed Cantu, activated his audible siren, repeatedly ordered Cantu to stop, and
radioed for backup.
Cantu rode south on a public street, then doubled back into a gravel parking lot. A
berm separated the gravel lot from an adjacent lot. Cantu rode toward the berm and
Deputy Barnes followed close behind, but slightly to Cantu’s right. As they approached
the berm, Cantu veered in front of the patrol car. Deputy Barnes braked sharply, trying to
1 Deputy Barnes’s declaration states he “had seen documents related to the probable cause incident prior to going out on patrol on April 4, 2015.” CP at 56. He attaches several police reports to his declaration. This implies he was aware of the facts in all of the attached reports. The implication is disingenuous, given that only one of the reports was prepared by the morning of April 4.
2 No. 37149-2-III Cantu v. Adams County
avoid colliding with Cantu. The patrol car skidded on the gravel into Cantu, knocking him
to the ground. Deputy Barnes got out of his car and found Cantu’s bicycle partially
underneath his left bumper and Cantu laying on the ground a few feet away complaining
of pain. Cantu sustained a small hairline fracture in his right foot as a result of the
collision. After medical personnel cleared Cantu, he was jailed on various charges.
Cantu filed suit against Adams County, the sheriff’s department, Sheriff Dale
Wagner, and Deputy Barnes, alleging negligent driving and training, as well as liability
based on agency and respondeat superior.
Deposition and expert testimony
At Deputy Barnes’s deposition, he explained the moments leading up to the
collision: “And as I was focusing on the berm, I could see [Cantu] coming into my
periphery. So I go from my gas to the brake. The car slides. He goes out of view. I back
my car up and make contact with him to take him into custody.” CP at 112. At Cantu’s
deposition, he admitted he knew Deputy Barnes was trying to arrest him. He did not deny
veering his bicycle in front of the patrol car, but said he did not know the patrol car was
close.
Adams County’s expert witness, Earl Howerton, opined:
3 No. 37149-2-III Cantu v. Adams County
4. . . . Deputy Barnes was not negligent while operating his patrol car in pursuit of Mr. Cantu. In addition, it was reasonable for Deputy Barnes to stop and contact Mr. Cantu in an attempt to arrest him and follow him safely until Deputy Barnes could get Mr. Cantu to stop. Deputy Barnes’ actions in pursuing and attempting to detain Mr. Cantu were consistent with standard police practices and the Sheriff Department’s protocols. 5. The evidence in this case shows that Deputy Barnes had insufficient time to react and avoid Mr. Cantu’s bicycle when it veered into the path of Deputy Barnes’ police cruiser.
CP at 41. Cantu did not hire an expert to rebut Mr. Howerton’s opinion.
After the parties completed discovery, the defendants successfully moved for
summary judgment dismissal of Cantu’s various claims. This appeal followed.
ANALYSIS
NEGLIGENCE: DEPUTY BARNES2
Cantu contends summary judgment was inappropriate because genuine issues of
material fact exist as to whether Deputy Barnes was negligent. We disagree.
We review an order granting summary judgment de novo, conducting the same
inquiry as the trial court. Pac. Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d
342, 350, 144 P.3d 276 (2006). Summary judgment is a burden-shifting scheme, where
2 Cantu does not argue how the trial court erred in summarily dismissing his negligent training claim. We deem that claim abandoned on appeal. Podbielancik v. LPP Mortg. Ltd., 191 Wn. App. 662, 668, 362 P.3d 1287 (2015).
4 No. 37149-2-III Cantu v. Adams County
the “moving party is entitled to summary judgment if it submits affidavits establishing it
is entitled to judgment as a matter of law.” Rangers Ins. Co. v. Pierce County, 164
Wn.2d 545, 552, 192 P.3d 886 (2008). The party opposing summary judgment must then
“‘set[ ] forth specific facts which sufficiently rebut the moving party’s contentions and
disclose the existence of a genuine issue as to a material fact.’” Id. (quoting Meyer v.
Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986)).
In a negligence action, a plaintiff must establish: (1) the existence of a duty,
(2) a breach of that duty, (3) proximate cause, and (4) resulting injury. Id. “If any of
these elements cannot be met as a matter of law, summary judgment for the defendant is
proper.” Id. at 553. Breach and proximate cause are usually factual questions for the
jury, but they may be resolved at summary judgment if reasonable persons could reach
only one conclusion from the evidence, together with all reasonable inferences therefrom,
viewed in the nonmoving party’s favor. Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d
77 (1985).
Here, Cantu has failed to establish breach of duty. He contends Deputy Barnes
was traveling too fast for the gravelly conditions to avoid colliding into him. Cantu cites
RCW 46.61.400, which provides:
5 No. 37149-2-III Cantu v. Adams County
No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOVEMBER 17, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
GILBERTO CANTU, a single person, ) No. 37149-2-III ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) ADAMS COUNTY, ADAMS COUNTY ) SHERIFF’S DEPARTMENT, SHERIFF ) DALE J. WAGNER, and DEPUTY ) DARRYL BARNES, ) ) Respondents. )
LAWRENCE-BERREY, J. — Gilberto Cantu brought suit to recover damages for an
ankle injury he sustained while fleeing on his bicycle and being unintentionally struck by
Deputy Darryl Barnes’s patrol car. The trial court dismissed Cantu’s suit on summary
judgment. We affirm.
FACTS Domestic dispute
On April 3, 2015, the Adams County Sheriff’s Office received a call about a man
beating up a woman in a homeless encampment in Othello, Washington. The caller told
dispatch “he believed the male was going to kill the female.” Clerk’s Papers (CP) at 65. No. 37149-2-III Cantu v. Adams County
Sheriff’s deputies arrived on the scene and found the woman, who reported that Gilberto
Cantu had assaulted her.
Pursuit, collision, and arrest
The next morning, Deputy Darryl Barnes saw a report noting there was probable
cause to arrest Cantu for assault.1 Around 1:00 p.m., Deputy Barnes saw Cantu, who he
knew from previous encounters, riding his bicycle near a local motel. Deputy Barnes
activated his patrol lights and used his car’s public address system to order Cantu to stop.
The patrol car’s video shows what happened.
Cantu continued biking, weaving through parking lots and public streets. Deputy
Barnes followed Cantu, activated his audible siren, repeatedly ordered Cantu to stop, and
radioed for backup.
Cantu rode south on a public street, then doubled back into a gravel parking lot. A
berm separated the gravel lot from an adjacent lot. Cantu rode toward the berm and
Deputy Barnes followed close behind, but slightly to Cantu’s right. As they approached
the berm, Cantu veered in front of the patrol car. Deputy Barnes braked sharply, trying to
1 Deputy Barnes’s declaration states he “had seen documents related to the probable cause incident prior to going out on patrol on April 4, 2015.” CP at 56. He attaches several police reports to his declaration. This implies he was aware of the facts in all of the attached reports. The implication is disingenuous, given that only one of the reports was prepared by the morning of April 4.
2 No. 37149-2-III Cantu v. Adams County
avoid colliding with Cantu. The patrol car skidded on the gravel into Cantu, knocking him
to the ground. Deputy Barnes got out of his car and found Cantu’s bicycle partially
underneath his left bumper and Cantu laying on the ground a few feet away complaining
of pain. Cantu sustained a small hairline fracture in his right foot as a result of the
collision. After medical personnel cleared Cantu, he was jailed on various charges.
Cantu filed suit against Adams County, the sheriff’s department, Sheriff Dale
Wagner, and Deputy Barnes, alleging negligent driving and training, as well as liability
based on agency and respondeat superior.
Deposition and expert testimony
At Deputy Barnes’s deposition, he explained the moments leading up to the
collision: “And as I was focusing on the berm, I could see [Cantu] coming into my
periphery. So I go from my gas to the brake. The car slides. He goes out of view. I back
my car up and make contact with him to take him into custody.” CP at 112. At Cantu’s
deposition, he admitted he knew Deputy Barnes was trying to arrest him. He did not deny
veering his bicycle in front of the patrol car, but said he did not know the patrol car was
close.
Adams County’s expert witness, Earl Howerton, opined:
3 No. 37149-2-III Cantu v. Adams County
4. . . . Deputy Barnes was not negligent while operating his patrol car in pursuit of Mr. Cantu. In addition, it was reasonable for Deputy Barnes to stop and contact Mr. Cantu in an attempt to arrest him and follow him safely until Deputy Barnes could get Mr. Cantu to stop. Deputy Barnes’ actions in pursuing and attempting to detain Mr. Cantu were consistent with standard police practices and the Sheriff Department’s protocols. 5. The evidence in this case shows that Deputy Barnes had insufficient time to react and avoid Mr. Cantu’s bicycle when it veered into the path of Deputy Barnes’ police cruiser.
CP at 41. Cantu did not hire an expert to rebut Mr. Howerton’s opinion.
After the parties completed discovery, the defendants successfully moved for
summary judgment dismissal of Cantu’s various claims. This appeal followed.
ANALYSIS
NEGLIGENCE: DEPUTY BARNES2
Cantu contends summary judgment was inappropriate because genuine issues of
material fact exist as to whether Deputy Barnes was negligent. We disagree.
We review an order granting summary judgment de novo, conducting the same
inquiry as the trial court. Pac. Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d
342, 350, 144 P.3d 276 (2006). Summary judgment is a burden-shifting scheme, where
2 Cantu does not argue how the trial court erred in summarily dismissing his negligent training claim. We deem that claim abandoned on appeal. Podbielancik v. LPP Mortg. Ltd., 191 Wn. App. 662, 668, 362 P.3d 1287 (2015).
4 No. 37149-2-III Cantu v. Adams County
the “moving party is entitled to summary judgment if it submits affidavits establishing it
is entitled to judgment as a matter of law.” Rangers Ins. Co. v. Pierce County, 164
Wn.2d 545, 552, 192 P.3d 886 (2008). The party opposing summary judgment must then
“‘set[ ] forth specific facts which sufficiently rebut the moving party’s contentions and
disclose the existence of a genuine issue as to a material fact.’” Id. (quoting Meyer v.
Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986)).
In a negligence action, a plaintiff must establish: (1) the existence of a duty,
(2) a breach of that duty, (3) proximate cause, and (4) resulting injury. Id. “If any of
these elements cannot be met as a matter of law, summary judgment for the defendant is
proper.” Id. at 553. Breach and proximate cause are usually factual questions for the
jury, but they may be resolved at summary judgment if reasonable persons could reach
only one conclusion from the evidence, together with all reasonable inferences therefrom,
viewed in the nonmoving party’s favor. Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d
77 (1985).
Here, Cantu has failed to establish breach of duty. He contends Deputy Barnes
was traveling too fast for the gravelly conditions to avoid colliding into him. Cantu cites
RCW 46.61.400, which provides:
5 No. 37149-2-III Cantu v. Adams County
No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
This statute does not apply. The collision occurred in a gravel parking lot, not on a
public road. Nor was Deputy Barnes traveling too fast for conditions. He was following
slowly because Cantu was on a bicycle. Reasonable persons can only conclude that
Deputy Barnes did not travel too fast for conditions and, thus, did not breach any duty.
In addition, Cantu has failed to establish proximate cause.
Proximate cause, in part, involves the concept of superseding causation. An act generally is a proximate cause of an injury if it produces the injury. [I]f a new, independent intervening act breaks the chain of causation, it supersedes the defendant’s original act and the original act is no longer the proximate cause of the injury. Whether an act may be considered a superseding cause sufficient to relieve a defendant of liability depends on whether the intervening act can reasonably be foreseen by the defendant; only intervening acts that are not reasonably foreseeable are deemed superseding causes. Unforeseeable intervening acts break the chain of causation.
Sluman v. State, 3 Wn. App. 2d 656, 702, 418 P.3d 125, review denied, 192 Wn.2d 1005,
430 P.3d 254 (2018) (citations omitted).
Cantu veered his bicycle in front of Deputy Barnes’s patrol car. This caused
Deputy Barnes to immediately brake and skid into Cantu. Cantu does not explain how
6 No. 37149-2-III Cantu v. Adams County
Deputy Barnes could have foreseen a bicycle veering into his path of travel. A reasonable
person could only conclude that Deputy Barnes could not have reasonably foreseen this.
Cantu's action was the superseding cause of his own injury.
We conclude that the trial court did not err by dismissing Cantu's negligence
claims. And because Deputy Barnes was not negligent, Cantu's agency and respondeat
superior claims also were properly dismissed.
Affirmed.
A majority of the panel has determined 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.
Lawrerice-Berrey:J. ) j WE CONCUR:
Q. 'c..~ Pennell, C.J.