IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LINDA NESTOR, individually and as Personal Representative of THE No. 84510-1-I ESTATE OF DR. PATRICK NESTOR, and ELLIOT NESTOR, DIVISION ONE
Appellants, UNPUBLISHED OPINION
v.
STATE OF WASHINGTON and JOHN WHITE, JR.,
Respondents.
CHUNG, J. — While the Nestors were on the Northgate Way on-ramp to
southbound Interstate 5 (I-5) in Seattle, John White, who was exiting I-5 south on
the neighboring exit ramp, lost control of his vehicle. White’s vehicle left the exit
ramp, became airborne, and landed on top of the Nestors’ car, causing serious
injuries to Linda Nestor and her son Elliot, and fatal injuries to her husband
Patrick. The Nestors filed a lawsuit against White and the State of Washington
alleging negligence. The State moved for summary judgment, which the trial
court granted on the issues of breach, causation, and discretionary immunity and
dismissed the claim against the State. We agree that summary judgment was
proper because, while the State had a duty to provide a roadway that was
reasonably safe for ordinary travel, the evidence did not establish a genuine No. 84510-1-I/2
issue of material fact as to whether the State breached that duty. Therefore, we
affirm the trial court’s dismissal of the Nestors’ claim against the State.
FACTS
On January 5, 2020, John White was suffering from mental health issues
and self-medicating with alcohol and drugs. Intoxicated and experiencing a panic
attack, White drove to his friend’s house. At some point during the drive, White
became suicidal, “that limbo of not caring if [he] lived, not caring if [he] died.” He
drove recklessly and at excessive speeds southbound on I-5. One witness
estimated he was driving over 80 miles per hour. Another witness said that White
was driving 75 to 80 miles per hour, attempted to pass cars on the left shoulder,
then crossed over all lanes of traffic and passed more cars while driving on the
right shoulder. She estimated White was driving 80 to 90 miles per hour on the
right shoulder when he took the exit ramp.
White exited the highway at Northgate Way. A sign on the side of I-5 near
the entrance to the off-ramp indicates an exit speed of 35 miles per hour. Upon
taking the exit, a driver encounters a sign showing the road curves to the right
and then to the left and a speed limit of 25 miles per hour. Approaching the curve
to the right, a right arrow sign points the direction of the first curve with a 25 miles
per hour sign. Then the driver enters a second curve, this time to the left. These
two curves in the off-ramp are depicted in the photo below.
2 No. 84510-1-I/3
Travelling at a high rate of speed, White failed to negotiate the first curve
to the right and went off the road into the grassy median at the circle shown in
the photo. His vehicle became airborne and struck the driver’s side and top of a
vehicle as it was proceeding on the on-ramp from Northgate Way to southbound
I-5. The accident is depicted in the diagram below from the Washington Police
Traffic collision report.
3 No. 84510-1-I/4
The vehicle on the on-ramp was being driven by Dr. Patrick Nestor, with
his wife, Linda, and son Elliot, in the car with him. The collision killed Patrick and
seriously injured Linda and Elliot. 1
An accident reconstruction expert determined that White was driving 91
m.p.h. approximately five seconds before impacting the Nestors’ vehicle.
However, because the vehicle data showed that White had already begun
applying his brakes, he was likely travelling in excess of 91 m.p.h. At this point,
White had already driven past the 35-m.p.h. advisory speed sign for the off-ramp
and was about to drive past a 25-m.p.h. sign. White was traveling approximately
63 m.p.h. when he entered the grassy median. He travelled approximately 120
feet through the median and struck the Nestors’ vehicle at 38 m.p.h. White’s
vehicle rolled completely and came to rest approximately 65 feet beyond where it
collided with the Nestors.
1 Elliot Nestor, Linda Nestor, and the Estate of Dr. Patrick Nestor are the plaintiffs in this
case, collectively referred to as the Nestors.
4 No. 84510-1-I/5
White was estimated to have had a blood alcohol level between .183 and
.195 and THC 2 in his system. He was convicted of vehicular homicide, vehicular
assault, and reckless driving and received a sentence of 131 months of
incarceration.
The Nestors filed a complaint against White for negligent operation of his
vehicle and against the State of Washington for failure to provide a reasonably
safe roadway. The State moved for summary judgment, supported by
declarations from four experts. The Nestors responded with a report by expert
Dale Dunlap, excerpts from deposition transcripts, and traffic collision reports
attached as exhibits to their attorney’s declaration. The State’s reply included
objections to consideration of this evidence.
The trial court determined that the State had a duty to the Nestors, but
granted summary judgment on breach and causation. The trial court also granted
summary judgment “based on discretionary immunity to the extent the Plaintiffs
argue that the road should have been improved by adding a guardrail even if the
order was reasonably safe for ordinary travel.” The court entered a partial final
judgment for the State under CR 54(b) and stayed the proceedings against White
pending resolution of this appeal.
The Nestors appeal the partial final judgment. White submitted a brief
joining the Nestors in their positions and arguments. The State cross-appealed
the trial court’s consideration of certain evidence submitted in opposition to its
motion for summary judgment.
2 Tetrahydrocannabinol.
5 No. 84510-1-I/6
DISCUSSION
I. State’s Objections to Evidence
The Nestors submitted Dunlap’s expert report, deposition excerpts, and
accident reports as exhibits to their attorney’s declaration in opposition to the
State’s motion for summary judgment. The State’s cross-appeal challenges the
admissibility of these documents due to various deficiencies with the exhibits.
King County Local Civil Rule 56(e) states in relevant part that “[a] party
objecting to the admissibility of evidence submitted by an opposing party must
state the objection in writing in a responsive pleading, [and] a separate
submission shall only be filed if the objection is to materials filed in the reply.” 3
The State complied with King County LCR 56(e) by raising its objections to the
Nestors’ evidence in its reply to the Nestors’ response to the motion for summary
judgment.
First, the State argued that the Nestors’ attorney, who attached “true and
accurate cop[ies]” of Dunlap’s curriculum vitae (CV), report, and deposition
excerpts, as well as White’s deposition and Washington Police Traffic Collision
reports, as exhibits, could not authenticate the attachments and exhibits based
on her personal knowledge, 4 so the documents are inadmissible. Similarly,
Dunlap’s report and CV were appended to the Nestors’ attorney’s declaration,
3 A comment regarding LCR 56(e) notes that it was “added to obviate the filing of motions
to strike objectionable evidence,” to “clarify local practice and to conform to Cameron v. Murray, 151 Wn. App. 646, 658, 214 P.3d 150 (Div. I, 2009).” Cameron noted that it was “misleading” to label as a “ ‘motion to strike’; what is actually an objection to the admissibility of evidence that could have been preserved in a reply brief rather than by a separate motion.” Id. 4 Initially the attorney’s declaration lacked a certification under penalty of perjury, but the
court allowed her to supplement with a corrected version containing the requisite certification language.
6 No. 84510-1-I/7
and the State objected that Dunlap did not provide a sworn affidavit or
declaration with his report. 5
Further, the Nestors’ attorney also appended excerpts of Dunlap’s
deposition as an exhibit to her declaration. The State noted that the Nestors
failed to include the court reporter’s certification for the submitted excerpts of
Dunlap’s deposition, and therefore, argued the excerpts were not properly
authenticated. 6
Finally, the State argued that Dunlap based his report on data protected
by the evidentiary privilege under 23 U.S.C. § 407, which applies to information
for the purpose of developing highway safety construction improvements using
federal highway funds. Dunlap testified he did not rely on this information to form
his opinions and would have reached the same conclusions without the
privileged information.
At oral argument on the State’s summary judgment motion, regarding the
State’s evidentiary objections, the trial court stated,
5 However, Dunlap’s introduction to his report states that the attorney’s firm had retained
his company as an engineering consultant to evaluate the I-5 interchange at issue in the case. He also included a cover page noting the law firm and directing the report to two attorneys. 6 Under the federal rules of evidence, “A deposition or an extract therefrom is
authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter’s certification that the deposition is a true record of the testimony of the deponent.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 774 (9th Cir. 2002). An attorney’s declaration is insufficient. Id. However, Orr allows that “when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity.” 285 F.3d at 776. Here, the State properly submitted parts of Dunlap’s deposition, including the reporter’s certification, as an exhibit to its attorney’s declaration. Thus, the State authenticated Dunlap’s deposition, which then establishes authenticity for the excerpts of the same deposition submitted by the Nestors. While Orr does allow a court to exclude “unauthenticated extracts of a document are submitted that do not readily indicate that they are parts of the same document authenticated by another party,” 285 F.3d at 776 n.16, the Dunlap deposition excerpts admitted by the State and the Nestors have identical headers and footers which suggests they are the same document.
7 No. 84510-1-I/8
[E]ven if I overlook the lack of a sworn statement for Mr. Dunlap himself his deposition address essentially overcame that technical defect. And so I want it to be clear I’m not relying on that. And I’m also not relying on the fact that the [ ] reports may be privileged. Even if they are privileged, which I don’t think I need to reach, Mr. Dunlap indicated his opinion would remain the same.
The trial court’s order granting summary judgment incorporated its oral ruling
fully. Other than the court’s statements at oral argument that it was not relying on
either the State’s arguments about “technical defects” or Dunlap’s reliance on
privileged documents, the court did not address the State’s evidentiary
objections. Instead, the written order lists all of the evidence submitted and
considered without any ruling regarding the admissibility of any portions thereof.
The order listed all the pleadings and files the court had reviewed, including
“Plaintiff’s Response to Defendant State of Washington’s Motion for Summary
Judgment,” the Nestors’ attorney’s declaration, and the “Notice of Errata”
regarding her declaration, which added the language certifying the contents
under penalty of perjury.
Here, even though the State used the proper procedure to object to the
admissibility of evidence, the court never ruled on the objections. Without rulings
to review, we cannot address the issues raised in the State’s cross-appeal. “It is
our duty to review evidentiary rulings made by the trial court; we do not ourselves
make evidentiary rulings.” Jacob’s Meadow Owners Ass’n v. Plateau 44 II, LLC,
139 Wn. App. 743, 756, 162 P.3d 1153 (2007). Moreover, “[i]t is our task to
review a ruling on a motion for summary judgment based on the precise record
considered by the trial court.” Id. at 754-55 (citing Wash. Fed’n of State
Employees, Council 28 v. Office of Fin. Mgmt., 121 Wn.2d 152, 163, 849 P.2d
8 No. 84510-1-I/9
1201 (1993)). Therefore, in reviewing the trial court’s ruling on summary
judgment, we consider the entirety of the record the parties submitted and that
the court considered, as identified in its written order.
II. Summary Judgment Dismissal of Negligence Claim
The Nestors argue the trial court erred by granting summary judgment on
the issues of breach and causation. We review orders on summary judgment de
novo. Kim v. Lakeside Adult Fam. Home, 185 Wn.2d 532, 547, 374 P.3d 121
(2016). Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998) (citing CR
56(c)). The moving party has the initial burden of showing the absence of an
issue of material fact. In re Est. of Black, 153 Wn.2d 152, 160, 102 P.3d 796
(2004). We construe evidence and reasonable inferences in the light most
favorable to the nonmoving party. Id. at 161.
If the moving party meets this burden, the nonmoving party must set forth
specific facts to show a genuine issue for trial. Id. The facts must rebut the
moving party’s contentions and demonstrate the existence of a genuine issue of
material fact. Citibank South Dakota N.A. v. Ryan, 160 Wn. App. 286, 289, 247
P.3d 778 (2011).
To prove negligence, a plaintiff must show (1) the existence of a duty,
(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). Generally,
whether there has been negligence “is a jury question, unless the facts are such
9 No. 84510-1-I/10
that all reasonable persons must draw the same conclusion from them, in which
event the question is one of law for the courts.” Hough v. Ballard, 108 Wn. App.
272, 279, 31 P.3d 6 (2001).
Whether a duty exists is a question of law. Degel v. Majestic Mobile
Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). The Washington Supreme
Court has established that “a municipality owes a duty to all persons, whether
negligent or fault-free, to build and maintain its roadways in a condition that is
reasonably safe for ordinary travel.” Keller v. City of Spokane, 146 Wn.2d 237,
249, 44 P.3d 845 (2002). However, municipalities are not insurers against
accidents or guarantors of public safety and “are not required to ‘anticipate and
protect against all imaginable acts of negligent drivers.’ ” Id. at 252 (quoting
Stewart v. State, 92 Wn.2d 285, 299, 597 P.2d 101 (1979)). Instead, the duty
extends only to the “foreseeable acts of those using the roadways.” Keller, 146
Wn.2d at 252. The parties agree that the State owed the Nestors the duty to
exercise reasonable care to design and maintain public highways “reasonably
safe for ordinary travel.” 7
The question of whether a roadway was reasonably safe for ordinary
travel is a question of fact that must be answered in light of the totality of
circumstances. Wuthrich v. King County, 185 Wn.2d 19, 27, 366 P.3d 926
7 The State argues that White’s extreme and reckless driving did not constitute “ordinary
travel.” However, it conflates the analysis of whether the State had a duty with the scope of that duty, which is part of the analysis of whether it breached the duty. The State owes a duty to all drivers, including the Nestors, to keep the road reasonably safe for ordinary travel. Whether the type of collision that occurred was foreseeable is integral to both the duty and causation analysis as they are interrelated. Lowman v. Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013). “In the context of liability for negligent roadway design or maintenance, any consideration of the legal cause question should . . . begin with a review of the duty question.” Id. Reasonable care is owed and the resulting injury must not be too remote under legal causation. Id. at 170.
10 No. 84510-1-I/11
(2016). The plaintiff does not need to prove a particular defect resulting in
inherently dangerous conditions. Xiao Ping Chen v. City of Seattle, 153 Wn. App.
890, 901, 223 P.3d 1230 (2009). Rather, a trier of fact may infer a breach of the
duty of care based on the surrounding circumstances. Id. For example, in Xiao
Ping Chen, a plaintiff raised genuine issues of material fact as to whether the City
of Seattle breached its duty to a pedestrian who was struck and killed in a
crosswalk where evidence showed the city had been aware of several accidents
or near-accidents at the same crosswalk, citizens had complained of the danger
and requested installation of a traffic signal at the location, and two experts
opined as to the dangerous conditions. 153 Wn. App. at 909-10. That particular
crosswalk had at least eight other accidents, including a fatality in exactly the
same location, which provided ample evidence that the city had breached its duty
to maintain the crosswalk in a condition reasonably safe for ordinary travel. Id. at
895, 909-10.
In Owen v. Burlington Northern and Santa Fe R.R. Co., the court
determined that summary judgment was inappropriate because reasonable
minds could differ as to whether the roadway was reasonably safe for ordinary
travel and appropriate corrective action had been taken. 153 Wn.2d 780, 790,
108 P.3d 1220 (2005). Owen involved a fatal accident where a road intersected a
set of railroad tracks. Id. at 784. At that location, the train crossing had a high
volume of both vehicle and train traffic, and nearby traffic signals frequently
caused cars to queue over the train tracks. Id. at 789. Additionally, the incline of
the road limited drivers’ ability to see the traffic signals or approaching trains. Id.
11 No. 84510-1-I/12
The absence of any remedial measures for the conditions at the railroad crossing
provided evidence from which a jury could conclude that roadway was not
reasonably safe for ordinary travel. Id. at 790.
By contrast, in Ruff v. County of King, our Supreme Court held there was
no issue of material fact as to whether the county had provided a road that was
reasonably safe for ordinary travel, despite its not installing a guardrail at the
accident site. 125 Wn.2d 697, 704, 887 P.2d 886 (1995). There, the plaintiff was
a passenger in a car that passed another car while approaching a curve on a
two-lane county road. Id. at 700. The driver crossed over the double yellow line
into the oncoming lane and continued to drive straight off the road into a stream
bed, landing upside down. Id. The undisputed evidence established that the road
was in excellent condition, the markings and signing were appropriate, and the
road width, including the shoulder, was standard, and none of the experts
testified that the roadway was inherently dangerous or deceptive. Id. at 706.
Thus, even though the experts stated that a guardrail would have redirected the
vehicle, none opined that a guardrail would have prevented injury. Id. at 706-07.
In support of its motion for summary judgment, the State provided several
opinions on the safety of the highway at the collision site. Assistant State Design
Engineer for Washington State Department of Transportation (WSDOT), John
Donahue submitted a declaration and opined, based on his training and
experience, that the condition of the ramp “meets or exceeds the relevant
published design criteria/expectations for similar facilities, available to highway
engineers in Washington in 1957, 1960, and 2021.” Specifically, the layout and
12 No. 84510-1-I/13
dimensions “confirm the intention of the designers to achieve the required
transition and reduction in operating speeds necessary to navigate the subject
ramp and its curves.”
Additionally, Donahue discusses the idea of “a clear zone,” defined as “a
clear, traversable area in which an errant vehicle can recover” which is normally
preferable to installing a traffic barrier because a barrier “normally increases the
number of crashes, as it reduces the roadside area in which an errant vehicle
may recover.” A clear zone’s required dimensions are based on the roadway’s
posted speed, traffic volume, and slope of the roadside, and WSDOT’s Design
Manual for a highway sets 54 feet as the widest clear zone recommended for
highest posted speed (70 m.p.h.) and traffic volume. The American Association
of State Highway and Transportation Officials (AASHTO) Roadside Design Guide
provides for a clear zone of 69 feet for areas with the highest speeds and traffic
volumes. The design criteria for the location where White’s vehicle ran off the
road would require a clear zone of 10 feet under WSDOT recommendations and
27 feet under AASHTO. Here, the distance between the point where White’s
vehicle left the roadway and collided with the Nestors’ vehicle was about 100
feet, far in excess of recommendations from the relevant design standards.
In response to the State’s evidence that the highway’s design satisfies
design and safety standards, the Nestors contend that evidence of prior collisions
and expert opinion on the design of the roadway raise questions of fact that
preclude summary judgment in this case. In his analysis of the crash location,
Dunlap noted the “uniqueness of the geometry” of the interchange, which he
13 No. 84510-1-I/14
described as a “folded diamond configuration.” He noted that 13 total accidents
had occurred involving the southbound I-5 to Northgate Way ramps between
October 2011 and January 2020. Dunlap summarized the accidents as follows:
Of the 13 reported accidents we are aware of, 9 occurred prior to the subject collision, 1 occurred 10 hours after the subject collision, and 2 occurred along the southbound 1-5 to eastbound Northgate Way off-ramp. A review of the summary indicates that all 11 collisions that occurred along the subject off-ramp involved a vehicle that left the roadway and collided with an object or another vehicle. The last accident in the list indicates that an errant vehicle ran off the left side of the subject off-ramp, struck a sign, and crossed the on-ramp, ultimately striking a fence as opposed to another vehicle only 10 hours after the subject collision. What’s more, 10 of the 11 collisions were listed as speed related, indicating the signs installed . . . were insufficient by themselves to provide a safe roadway for the traveling public.
This past history of collisions in the vicinity led to Dunlap’s opinion on the safety
of the roadway. In his report, Dunlap opined, “It is incumbent upon a public
agency like WSDOT to provide safe roads for the traveling public, free of
hazardous trap conditions like what existed at the subject accident location.”
According to Dunlap, “[w]hen it became apparent that motorists were either
failing to observe or understand the signage, WSDOT should have availed
themselves of additional safety improvements in the form of [sic] guardrail along
the outside of a problem curve (at the very least),” and installation of larger signs
and flashing beacons to draw the attention of drivers.
However, Dunlap admitted that regarding the “folded diamond
configuration” design, “you do find them and they are around Southern California
throughout quite a few locations,” and he was not opining that the intersection
was defective when it was designed. Moreover, the other collisions that occurred
14 No. 84510-1-I/15
near the I-5 southbound exit at Northgate Way have little similarity to this case.
While all of the accidents involved cars running off the road by proceeding
straight somewhere along the curve of the exit ramp, none of them occurred at
the same location at issue. Two of the accidents involved the eastbound ramp.
Of the eleven collisions on the westbound ramp, four involved a single vehicle
leaving the roadway on the second curve of the ramp, where it turned left, and
then striking a sign, curb, or ditch. By contrast, White’s vehicle left the road at the
first curve of the ramp as the road turned right. The State’s evidence shows that
the clear zone far exceeded design recommendations at the location that White’s
vehicle left the road. 8 For incidents where vehicles also left the roadway at the
first curve, none appear to have crossed the clear zone and reached the on-ramp
or collided with another vehicle. In all prior crashes in that location, the vehicles
came to a stop in the grassy area comprising the clear zone as designed. The
clear zone functioned properly in cases of ordinary travel. Thus, the prior
8 Dunlap stated that the road has a curb that defeats the clear zone. The curb is “going to
present an object that will trip or launch vehicles. And so it’s on the outside of a curve. It doesn’t need to be on the outside of the curve. That vertical curb needs to go.” However, Dunlap acknowledged he could not opine as to whether the area was a clear zone because he had not conducted a survey of the area. Dunlap acknowledged that the AASHTO definition determines the existence of a clear zone. Dunlap also inaccurately described the curb as vertical, rather than sloped. State’s expert Donahue opined that the curb did not preclude the grassy area’s function as a clear zone: “Based on Washington and National Standards a curb like the one outlined above is not a factor in determining the clear zone, as it does not represent an object that would indicate the need for barrier or shielding.” Further, Donahue stated that “[t]he Roadside Design Guide discusses curbing of various types, and indicates a strong preference for a sloping curb of less than four inches, which this is.” And AASHTO does not consider curbs to be fixed objects in the context of clear zones. Donahue concludes, “this curb serves a functional purpose and does not preclude the grassy area adjacent to this roadway from operating as an effective clear zone.” Thus, despite Dunlap’s deposition testimony about concerns due to the curb, his opinion does not create a fact question as to whether the clear zone satisfied highway design standards.
15 No. 84510-1-I/16
collisions do not establish that the part of the roadway at issue was unsafe for
ordinary travel.
According to Dunlap and the Nestors, the main breach of the State’s duty
is the lack of a guardrail due to the configuration of the highway interchange. But
Dunlap does not say that the road was not reasonably safe for ordinary travel.
Instead, he opined about the need for a guardrail in this location. Dunlap stated
that putting in a guardrail at that location would protect people in the act of
ordinary travel. In addition, he was asked, “Is it your opinion that given the design
of this ramp, its proximity to the other ramp, and the collision history for this
particular off-ramp, exercise of ordinary care by the State of Washington required
installation of a guardrail as indicated in your report?” Dunlap responded:
So the responsibility of the engineers is to make the roadway safe for the ordinary driver, the drivers that you would encounter on the roadway. With respect to the proximity of these ramps as they converge on the southbound direction for the off-ramp, it’s foreseeable, I think, that a vehicle that leaves the south side of the curve could encroach into the on-ramp. And we have evidence, of course, that that has occurred. So we do know that that’s a potential outcome of a vehicle that leaves the roadway. Because of that, guardrail is then, in my mind, triggered.
Dunlap opined that if a guardrail had been put into place, “the dynamic of the
accident completely changes, and innocent bystanders and people can be
protected.”
John Milton, Director of Transportation Safety and Systems Analysis at
WSDOT, provided his opinion that a guardrail would not improve safety at the
location of the accident and could actually increase crash severity and the
likelihood of collisions with cars on the on ramp:
16 No. 84510-1-I/17
It is far preferred to have a clear zone free from fixed objects, as is the case with the open grassy area that exists at this location. This is because fewer crashes will occur, when compared to a location that might have guardrail. Additionally, crashes that happened at this location were single vehicle, all of which proceeded into the grassy area adjacent to the curve. With a barrier installed the result would be to potentially increase the crash severity, with a higher potential of redirection into other vehicles traveling on the ramp. Thus, the crash costs would likely increase not decrease with a guardrail or other barrier.
This reflects Dunlap’s deposition testimony that with a guardrail in place, “there’s
still an accident. It’s just different.” Dunlap did not opine in his report or offer
testimony that the road as designed was not reasonably safe for ordinary travel.
Thus, the Nestors’ evidence fails to create an issue of fact as to whether the lack
of a guardrail was a breach of the State’s duty to provide roads safe for ordinary
travel.
White’s conduct was far from ordinary and amounted to criminal conduct
and homicide. White was impaired and driving recklessly. Despite advisory
speed signs indicating first 35 m.p.h. and then 25 m.p.h., White continued to
drive at a speed in excess of 91 m.p.h. In addition, White failed to apply the full
braking power of his vehicle when he lost control. According to accident
reconstructionist Nathan Rose, at the point where White was traveling 91 m.p.h.,
his vehicle braking system had the capacity to stop short of even entering the
median. With his actual brake input, White would have come to a stop before
entering the on-ramp and colliding with the Nestors even if he had been traveling
at 77 m.p.h., over three times the posted speed of 25 m.p.h.
Given the I-5 speed limit of 60 m.p.h., and the advisory speeds of 35
m.p.h. and 25 m.p.h. on the exit ramp, White’s driving in excess of 91 m.p.h.
17 No. 84510-1-I/18
while impaired was clearly not a foreseeable act of those using the roadway.
Rose’s analyses demonstrate that White would not have left the roadway at 91
m.p.h. had he applied his full braking capacity. The grassy area serving as the
clear zone had stopped all prior accidents at that location.
Dunlap’s opinion does not raise a question of fact as to whether the
roadway at issue complied with applicable design and safety requirements. At
most, he suggests that a guardrail would have prevented the accident. But not
only is this speculation, whether a different design would have led to a different
result is not the standard for determining breach. The State was not required to
anticipate or protect against criminally dangerous driving such as White’s. See
Keller, 146 Wn.2d at 252 (municipalities not required to anticipate and protect
against all imaginable acts of negligent drivers.). Based on the admissible
evidence in the form of the expert opinions, the Nestors have failed to raise any
issues of material fact as to whether the State breached its duty to exercise
ordinary care to provide roadways that are reasonably safe for ordinary travel.
Therefore, we need not reach the elements of legal causation or cause-in-fact.
Summary judgment was properly granted for the State.
III. Discretionary Immunity
Although we affirm the summary judgment dismissal of the Nestors’ claim
against the State, we also address the State’s invocation of discretionary
immunity as a defense, as the court granted dismissal on this basis in the
alternative.
18 No. 84510-1-I/19
Discretionary immunity is a narrow exception to the State’s waiver of
sovereign immunity, wherein “discretionary” governmental acts are immune from
tort liability. Taggart v. State, 118 Wn.2d 195, 214-15, 822 P.2d 243 (1992). We
apply a four-factor test to determine when discretionary immunity applies:
(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?
Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246, 255, 407
P.2d 440 (1965). “In order for a decision to qualify as discretionary, the State
must show that the decision was the outcome of a conscious balancing of risks
and advantages. And the decision must be a basic policy decision by a high-level
executive.” Avellaneda v. State, 167 Wn. App. 474, 481, 273 P.3d 477 (2012)
(internal citations omitted). For example, in Avellaneda, the decision at issue was
WSDOT’s calculation of the priority for installation of a cable barrier on the
median of a highway. 167 Wn. App. at 482-83.
The State argues that Highway Safety Executive Committee’s
implementation of the legislature’s policy of priority programming for highway
improvements under RCW 47.05.010 entitles it to discretionary immunity.
However, the State has not identified a specific policy decision related to the
location at issue. Based on the fatality and injury crash screening criteria, the
19 No. 84510-1-I/20
location failed to make the 2012 ranked list of locations requiring safety
measures. As of 2016, a newly adopted evaluation method excludes ramp
segment locations because they most often do not have fatal and serious
crashes warranting consideration for additional measures. Unlike in Avellaneda,
where the WSDOT calculated the benefits and costs of the project and made a
determination of its priority, here, the State has not established that the lack of
additional safety measures—such as a guardrail at the crash site—reflects a
high-level decision rather than a conclusion based on the application of
screening criteria or lack of evaluation. Without a policy decision by a high-level
executive, the State cannot establish an entitlement to discretionary immunity.
The trial court erred by granting summary judgment on this ground.
Nevertheless, because we may affirm on any basis, we conclude that
summary judgment dismissal of the Nestors’ claim against the State was proper
based on our resolution of the issue of breach of duty.
Affirmed.
WE CONCUR: