IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
KAREN HARDER, individually, and on No. 85812-2-I behalf of the ESTATE OF DAVID HARDER; and RACHEL HARDER, individually,
Appellants,
v.
CITY OF SEATTLE, a subdivision of UNPUBLISHED OPINION the State of Washington d/b/a SEATTLE POLICE DEPARTMENT,
Respondents,
PAYTON MADDY, an individual,
Defendant.
BOWMAN, J. — Karen Harder, individually and on behalf of the estate of
David Harder, and Rachel Harder (collectively Estate) appeal the trial court’s
grant of summary judgment for the city of Seattle and the Seattle Police
Department (SPD) (collectively City) on the Estate’s claims of negligence,
wrongful death, and loss of consortium. The Estate alleged that SPD Officer
Robert Stevenson violated SPD policy in pursuing Payton Maddy, causing
Maddy to drive erratically and kill David.1 But because the Estate cannot show
1 We refer to the individual members of the Harder family by their first names when necessary for clarity and mean no disrespect by doing so. No. 85812-2-I/2
that Officer Stevenson’s actions were a proximate cause of David’s death, we
affirm.
FACTS
On the morning of May 20, 2020, Officer Stevenson was patrolling in
North Seattle when he saw a car parked in a stall at the Brown Bear Car Wash at
the corner of 15th Avenue NE and NE 125th Street. The driver was not washing
or detailing his car. Officer Stevenson believed the car wash was “a nest for
criminal activity” and “a hangout for nefarious characters.” So, he pulled into the
parking lot to get a better view of the car. As he circled the lot, Officer Stevenson
noticed that the car did not have a rear license plate and that the temporary tag
was expired.
Officer Stevenson then left the property and parked a block away in a
position where he could see the entire lot. As he was leaving, Officer Stevenson
saw the driver, later identified as Maddy, notice him and “get nervous.” Shortly
after parking, Officer Stevenson observed Maddy drive out of the lot and head
north on 15th Avenue NE. Officer Stevenson followed Maddy. Over the next
minute and a half, Maddy drove erratically through the neighborhood northwest
of the car wash, with Officer Stevenson trailing him, until Maddy crashed into
David’s motorcycle, killing him.
The red line in the picture below shows Maddy’s path through the
neighborhood during the minute and a half from when he left the car wash
parking lot until he hit David’s motorcycle.
2 No. 85812-2-I/3
As shown, Maddy left the car wash and headed east on NE 125th Street.
He then turned north onto 15th Avenue NE but quickly cut across the road into a
Chevron gas station parking lot. He drove through the lot and exited the gas
station onto NE 125th Street westbound “at a high rate of speed, without
stopping,” and cut off another car. Officer Stevenson followed Maddy, heading
north on 15th Avenue NE and making a U-turn to stay with him as Maddy cut
through the gas station and continued on NE 125th Street. Officer Stevenson
saw Maddy turn north onto 14th Avenue NE and activated his emergency lights,
intending to stop him for driving with expired tabs and reckless driving.
3 No. 85812-2-I/4
Maddy accelerated north on 14th Avenue NE toward NE 127th Street.
When Officer Stevenson turned onto 14th Avenue NE, he saw that “Maddy had
put over [a half] block” on him and continued “accelerating and pulling away”
from him. Believing Maddy was eluding, Officer Stevenson drove about 100
yards north on 14th Avenue NE before deactivating his emergency lights2 and
broadcasting by radio to other officers that he was “return[ing] to routine driving”
and “not in a pursuit.” Even so, he continued following Maddy “in a routine
manner in an effort to keep a visual on him.”
Maddy made a left turn westbound on NE 127th Street, then a right turn
northbound on 12th Avenue NE, and then another right turn eastbound on NE
130th Street. Officer Stevenson followed, expecting that “Maddy would ditch the
vehicle and go to ground.” Officer Stevenson explained that people who elude
police often leave the car and flee on foot. But at the intersection of NE 130th
Street and 15th Avenue NE, Maddy ran a stop sign and attempted a left turn
northbound onto 15th Avenue NE. Cutting across oncoming southbound traffic
on 15th Avenue NE, Maddy struck David’s motorcycle. David died as a result of
his injuries from the crash.3
In February 2022, the Estate4 sued the City and Maddy, alleging
negligence, wrongful death, and loss of consortium. In August 2023, the City
2 Officer Stevenson never activated his sirens. 3 Maddy later pleaded guilty to hit and run resulting in death and vehicular homicide. He received a 120-month sentence. 4 Karen is David’s spouse and Rachel is his daughter.
4 No. 85812-2-I/5
moved for summary judgment. It argued that the Estate cannot show Officer
Stevenson was negligent because “there is no evidence that Officer Stevenson
‘pursued’ Maddy, and no evidence that he failed to exercise due regard for the
safety of all persons.” The City also argued that the Estate cannot establish
Officer Stevenson’s actions were a proximate cause of the collision. It contended
that Officer Stevenson’s actions could not have caused Maddy to drive recklessly
because Maddy’s own statements established he did not see Officer Stevenson
following him.
With its motion, the City submitted the declaration of its expert, Nathan
Rose, an accident reconstructionist. Rose created an animation video with a
reconstruction of the route Maddy and Officer Stevenson drove before the
collision. And the City submitted testimony from Officer Stevenson that when he
thought Maddy was fleeing, he did not pursue and, instead, deactivated his
emergency lights and resumed “routine driving.” The City also submitted
testimony from SPD Assistant Chief Thomas Mahaffey, the bureau chief over
patrol operations, that “based on the distance,” it was clear Officer Stevenson
stopped pursuit of Maddy when he saw Maddy accelerating away from his
attempted traffic stop.
The City also provided a declaration from its expert Dr. Steven Arndt, a
human factors scientist, who testified that Maddy had about five seconds in
which he could have seen Officer Stevenson trying to make a traffic stop with his
lights activated, and that once Maddy turned onto NE 127th Street, “there would
5 No. 85812-2-I/6
be no opportunity to see the activated lights,” which was about 34 seconds
before the collision. And the City submitted a report summary from Dr. Jeremy
Bauer, an accident reconstruction expert, showing that while Officer Stevenson
was following Maddy, there were only four brief moments where Maddy could
have seen him before Maddy turned onto NE 130th Street from 12th Avenue NE.
Finally, the City submitted transcripts from the arresting officer’s body camera
footage and Maddy’s later deposition testimony in which Maddy states several
times that he did not know Officer Stevenson tried to stop him and that he did not
see a police car following him at any point.
The Estate opposed the City’s motion. It argued that the evidence
showed Officer Stevenson failed to act with due regard for the safety of others by
continuing to pursue Maddy. It further argued that Officer Stevenson’s conduct
was a proximate cause of the collision because Maddy’s erratic driving shows
that he was fleeing from Officer Stevenson, and that Maddy’s statement that he
did not see Officer Stevenson is not credible. The Estate also submitted
testimony from SPD Captain George Davisson that Maddy was likely eluding.
And it submitted a declaration and expert report from Russ Hicks, a retired law
enforcement officer and police academy supervisor and trainer, in which Hicks
states that after Officer Stevenson saw Maddy was eluding, he continued to
pursue Maddy in violation of SPD policy.
On September 8, 2023, the trial court heard the City’s summary judgment
motion. After hearing argument from both parties, the court reserved ruling on
6 No. 85812-2-I/7
the matter. A few days later on September 14, the court granted the City’s
motion and dismissed all claims against the City. The court explained that
Officer Stevenson’s actions were not a proximate cause of David’s death
because Maddy testified that he never saw Officer Stevenson. But even
assuming Maddy saw Officer Stevenson pursuing him, the court concluded
Officer Stevenson “broke off his chase at least two blocks and several turns
before [Maddy] ran the stop sign and killed [David],” so his conduct was too
remote to amount to a proximate cause of David’s death.
The Estate then moved for certification of the court’s order on summary
judgment under CR 54(b) and a stay of the proceedings against Maddy. The
City did not oppose the motion, and the court granted certification and a stay.
The Estate appeals.
ANALYSIS
The Estate argues that the trial court erred by granting the City summary
judgment because specific facts show that Officer Stevenson breached his duty
of care and that the breach was a proximate cause of David’s death.
We review rulings on summary judgment de novo, performing the same
inquiry as the trial court. Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373
(1993). Summary judgment is appropriate only if “there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a matter of
law.” CR 56(c). The moving party bears the burden of proving that there is no
genuine issue as to any material fact. Lamon v. McDonnell Douglas Corp., 91
Wn.2d 345, 349, 588 P.2d 1346 (1979). We consider all facts and reasonable
7 No. 85812-2-I/8
inferences from those facts in the light most favorable to the nonmoving party.
Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000).
A defendant may move for summary judgment by showing the plaintiff
lacks competent evidence to support an element of its case. Guile v. Ballard
Cmty. Hosp., 70 Wn. App. 18, 21, 851 P.2d 689 (1993). If the defendant makes
this showing, the burden shifts to the plaintiff to establish the existence of the
element. Pagnotta v. Beall Trailers of Or., Inc., 99 Wn. App. 28, 36, 991 P.2d
728 (2000). The plaintiff must present specific facts showing a genuine issue for
trial; conclusory allegations, speculative statements, or argumentative assertions
are not enough. Id. If the plaintiff fails to meet its burden, summary judgment for
the defendant is proper. Knight v. Dep’t of Lab. & Indus., 181 Wn. App. 788,
795-96, 321 P.3d 1275 (2014).
To prevail on a negligence claim, a plaintiff must prove (1) the existence of
a duty owed, (2) breach of that duty, (3) resulting injury, and (4) proximate cause.
Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). If
the plaintiff cannot establish all four elements as a matter of law, summary
judgment for the defendant is proper. Id.
1. Duty of Care
The Estate argues that the City owed a duty of care to protect others from
harm under the “overarching common law duty of law enforcement officers” and
RCW 46.61.035. We agree.
8 No. 85812-2-I/9
“Liability in tort for negligence may lie only where the defendant owes the
plaintiff a duty of care.” HBH v. State, 197 Wn. App. 77, 86, 387 P.3d 1093
(2016). A duty of care can arise from common law principles or legislative
enactment. Schneider v. Strifert, 77 Wn. App. 58, 61, 888 P.2d 1244 (1995).
The existence of a duty is a question of law. Schooley v. Pinch’s Deli Mkt., Inc.,
134 Wn.2d 468, 474, 951 P.2d 749 (1998).
Under common law, every individual, including law enforcement officers,
owes “ ‘a duty of reasonable care to refrain from causing foreseeable harm in
interactions with others.’ ” Mancini v. City of Tacoma, 196 Wn.2d 864, 879, 479
P.3d 656 (2021) (quoting Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537,
550, 442 P.3d 608 (2019)). And our legislature affirmed that this duty of care
applies even when law enforcement officers are acting in an emergency capacity
under RCW 46.61.035. There, drivers of “authorized emergency vehicle[s]” in
“the pursuit of an actual or suspected violator of the law” may “[e]xceed the
maximum speed limits so long as [they do] not endanger life or property.” RCW
46.61.035(1), (2)(c). But the statute does not “relieve the driver of an authorized
emergency vehicle from the duty to drive with due regard for the safety of all
persons” or “protect the driver from the consequences of [their] reckless
disregard for the safety of others.” RCW 46.61.035(4).
As a result, Officer Stevenson had a duty to drive his patrol car with
reasonable care to prevent foreseeable harm to others even if he was engaged
in a pursuit.
9 No. 85812-2-I/10
2. Breach
The Estate argues it raised a question of fact as to whether Officer
Stevenson breached his duty. It points to Hicks’ testimony that Officer
Stevenson failed to break off pursuit in violation of SPD’s policy. We agree.
Whether a party breached a duty of care is generally a fact question.
Hertog ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400
(1999). Violation of an adopted policy that sets a standard of care to be followed
by employees may be considered as evidence of negligence. See HBH, 197
Wn. App. at 92.
Under SPD policy 13.031(4), an officer may not pursue an eluding vehicle
without an “articulable justification that the public safety need to stop the eluding
vehicle outweighs the inherent risk of pursuit driving.” And an officer cannot
initiate pursuit solely for traffic violations, misdemeanors, property crimes, or the
act of eluding alone. Under SPD policy 13.031(1), “eluding” exists when
an officer operating an authorized police vehicle issues by hand, voice, emergency lights or siren a visual and/or audible signal to the driver of a vehicle to stop and, after a reasonable time to yield in response to the officer’s signal, the driver does any of the following: - Increases speed - Takes evasive actions - Refuses to stop.
And “pursuit” exists when “an officer, in an effort to keep pace with and/or
immediately stop or apprehend an eluding driver, drives in a manner that is
outside of normal traffic restrictions.”
10 No. 85812-2-I/11
Officer Stevenson testified that he complied with SPD policy 13.031
because as soon as he saw Maddy elude, he disengaged, deactivated his
emergency lights, and returned to “routine driving.”5 In deposition testimony,
Officer Stevenson explained that “when it became clear that [Maddy] wasn’t
going to stop,” he “deactivated” his lights because “[p]olicy requires us to not
pursue for minor offenses, which Mr. Maddy had committed, and so continuing to
push it and pursue would have been violation of the department policy.”
Officer Stevenson’s report similarly provides that he activated his
emergency lights when he intended to stop Maddy for reckless driving after
Maddy exited the gas station parking lot and cut off another driver. But when
Officer Stevenson turned onto 14th Avenue NE moments later, he saw “Maddy
had put over [a half] block” between them and was “accelerating and pulling
away.” Officer Stevenson drove about 100 yards north on 14th Avenue NE
before deactivating his emergency lights and broadcasting by radio to other
officers that he was “return[ing] to routine driving” and “not in a pursuit.”
Assistant Chief Mahaffey also testified that Officer Stevenson complied
with SPD policy. He explained that when Officer Stevenson has his lights on, he
is “trying to effect a traffic stop” on Maddy’s vehicle, and when Maddy
accelerates, he is eluding. According to Assistant Chief Mahaffey, when Officer
5 At oral argument before this court, the Estate agreed that it was not alleging Officer Stevenson was negligent until the point when he deactivated his emergency lights but kept pursuing Maddy. It stated that “in this particular set of circumstances, it is . . . the decision to continue the pursuit that . . . is the problem here.” Wash. Court of Appeals oral argument, Harder v. City of Seattle, No. 85812-2-I (July 16, 2024), at 2 min., 50 sec. to 3 min., 54 sec. (on file with court). Accordingly, we consider facts only after Officer Stevenson deactivated his lights to determine breach and proximate cause.
11 No. 85812-2-I/12
Stevenson switched off his emergency lights and returned to routine driving, the
distance grew between him and Maddy, so Officer Stevenson was not “trying to
keep pace.”
But the Estate submitted a declaration and expert report from retired
officer Hicks, in which he states that “[a]lthough [Officer] Stevenson testified that
he was merely following Maddy in an effort [to] ‘keep sight of’ him . . . , this
language is not in substance any different from ‘keeping pace’ ” with Maddy. He
concluded that Officer Stevenson engaged in an unauthorized pursuit in violation
of SPD policy 13.031.6
Because there is competing evidence about whether Officer Stevenson
pursued Maddy in violation of SPD policy 13.031,7 a question of fact remains as
to whether Officer Stevenson breached his duty to drive his patrol car with
reasonable care.
3. Proximate Cause
The Estate argues that it also raised genuine issues of fact as to whether
Officer Stevenson’s breach was a proximate cause of Maddy’s crash. We
disagree.
6 The Estate also provided testimony from Captain Davisson that Officer Stevenson did not have an “articulable justification” to initiate a pursuit in violation of SPD policy 13.031(4). 7 The Estate also argues that Officer Stevenson breached his duty by “operating ‘outside of normal traffic restrictions’ ” in violation of SPD policy 13.031(1). Like a violation of policy, violation of a statute, ordinance, or administrative rule may be considered as evidence of negligence. See, e.g., Skeie v. Mercer Trucking Co., 115 Wn. App. 144, 151, 61 P.3d 1207 (2003) (defendant’s failure to secure truck load to statutory standards was evidence of negligence). So, evidence that Officer Stevenson was speeding could also support breach. But because the Estate also raises an issue of fact as to whether Officer Stevenson was pursuing Maddy, we do not reach this argument.
12 No. 85812-2-I/13
To be liable for negligence, a plaintiff must show that a defendant’s
actions were a proximate cause of the plaintiff’s injury. Hartley v. State, 103
Wn.2d 768, 777, 698 P.2d 77 (1985). Proximate cause has two elements:
cause in fact and legal causation. Id. “[T]he cause in fact inquiry focuses on a
‘but for’ connection,” while “legal cause is grounded in policy determinations as to
how far the consequences of a defendant’s acts should extend.” Meyers v.
Ferndale Sch. Dist., 197 Wn.2d 281, 289, 481 P.3d 1084 (2021). Cause in fact,
or “but for” causation, refers to the “ ‘physical connection between an act and an
injury.’ ” Martini v. Post, 178 Wn. App. 153, 164, 313 P.3d 473 (2013) (quoting
Hartley, 103 Wn.2d at 778). To show cause in fact, the plaintiff “ ‘must establish
that the harm suffered would not have occurred but for an act or omission of the
defendant.’ ” Id. (quoting Joyce v. Dep’t of Corr., 155 Wn.2d 306, 322, 119 P.3d
825 (2005)).
Cause in fact is usually a question of fact not susceptible to summary
judgment. Martini, 178 Wn. App. at 164-65. But we may decide cause in fact as
a matter of law “if the facts and inferences from them are plain and not subject to
reasonable doubt or difference of opinion.” Id. While a plaintiff need not prove
cause in fact “to an absolute certainty,” they must present evidence that
“ ‘allow[s] a reasonable person to conclude that the harm more probably than not
happened in such a way that the moving party should be held liable.’ ” Id. at
1658 (quoting Little v. Countrywood Homes, Inc., 132 Wn. App. 777, 781, 132
8 Alteration in original.
13 No. 85812-2-I/14
P.3d 944 (2006)). The plaintiff cannot rest their claim on a speculative theory.
Id.
The Estate argues that there are issues of fact as to “whether Maddy
perceived that [Officer] Stevenson was pursuing him” after the officer deactivated
his emergency lights. But the evidence shows otherwise.
Using Rose’s animated reconstruction video of Maddy and Officer
Stevenson’s route up to the time of the collision, the City’s expert Dr. Arndt
analyzed the dynamics of the situation, including visual obstructions,
environmental obstructions, sightlines, and Maddy’s position in the car, to
determine whether Maddy could have seen Officer Stevenson following him.
From his analysis, Dr. Arndt determined that “Maddy would have had the ability
to see Officer Stevenson’s vehicle lights activated for a total of approximately 5
seconds” as he traveled north on 14th Avenue NE. Dr. Arndt explained that once
Maddy turned onto NE 127th Street, he had “no opportunity to see the activated
lights,”9 which was “approximately 34 seconds prior to the collision.” He also
explained that between the last point when Maddy could have seen Officer
Stevenson’s emergency lights on 14th Avenue NE and the point of the collision,
it is likely that there would only be two short opportunities for Mr. Maddy to even have the ability to have an unobstructed line of sight to Officer Stevenson’s vehicle. The likely total time for viewing would be approximately 3 seconds, and at each occurrence it
9 Officer Stevenson turned off his emergency lights after driving about 100 yards north on 14th Avenue NE.
14 No. 85812-2-I/15
would require Mr. Maddy to be looking back as he was navigating a corner.
Dr. Arndt also created a demonstrative that showed Maddy’s possible sight lines
of Officer Stevenson.
Based on Rose’s and Dr. Arndt’s demonstratives, accident
reconstructionist Dr. Bauer concluded that there were four moments when Maddy
could have seen Officer Stevenson following him: (1) when Officer Stevenson
first turned onto 14th Avenue NE, (2) the next two seconds before Maddy turned
onto NE 127th Street, (3) a split second when Officer Stevenson turned onto NE
127th Street as Maddy was turning onto 12th Avenue NE, and (4) a split second
just before Maddy turned onto NE 130th Street as Officer Stevenson turned onto
12th Avenue NE.
The Estate offers no affirmative evidence that Maddy saw Officer
Stevenson. Still, it argues the possibility that Maddy could have seen Officer
Stevenson, coupled with his erratic driving, show that he was eluding Officer
Stevenson’s continued pursuit. But Maddy testified to the contrary. Maddy
repeatedly said that he did not see Officer Stevenson following him. During his
arrest, officers asked Maddy three times if he saw Officer Stevenson trying to
make the traffic stop. Each time he said, “No,” “I didn’t even see him,” and, “No, I
did not.” Then again in his deposition, Maddy said that his driving was not
influenced by police following him. He testified that he did not see Officer
Stevenson at all. And he reaffirmed the statements he made at the time of his
15 No. 85812-2-I/16
arrest, saying they were truthful. Even on cross-examination by the Estate’s
attorney, after watching Rose’s animated reconstruction video, Maddy
acknowledged that the exhibit showed he could have seen Officer Stevenson but
maintained that he did not. He testified again that he “never [saw] any police
vehicles.”
The Estate argues that Maddy’s testimony is “highly questionable and
impeachable” because he admitted to using heroin just before the incident. But
to avoid summary judgment, the nonmoving party must present contradictory
evidence or otherwise impeach the evidence of the moving party. Dunlap v.
Wayne, 105 Wn.2d 529, 536, 716 P.2d 842 (1986). While Maddy acknowledged
that he used heroin on May 20, 2020, that he was driving erratically, and that the
events leading up to the collision were “a blur,” he consistently and adamantly
testified that he did not see Officer Stevenson. That Maddy is “impeachable”
does not amount to affirmative evidence sufficient to defeat summary judgment.
As a result, the Estate fails to show that “but for” Officer Stevenson’s pursuit,
Maddy would not have driven erratically and killed David.10
10 Because the Estate cannot show the City was a cause in fact of David’s death, we do not reach the issue of legal causation.
16 No. 85812-2-I/17
Because the Estate cannot show Officer Stevenson was a proximate
cause of David’s death, we affirm the trial court’s dismissal of its claims against
the City on summary judgment.
WE CONCUR: