IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROBIN LERUM, No. 87665-1-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION CITY OF BELLEVUE; the BELLEVUE POLICE DEPARTMENT; CITY OF SEATTLE; and the SEATTLE POLICE DEPARTMENT,
Respondent.
SMITH, J. — In 2019, a vehicle driving on the shoulder of the freeway
struck Robin Lerum’s car. At the time of collision, a Seattle police officer and
Bellevue police officer were on motorcycles behind the stolen vehicle on the
shoulder. Lerum sued the City of Seattle and the City of Bellevue for negligent
pursuit and failure to give due regard to her safety. The City of Seattle and City
of Bellevue moved for summary judgment dismissal. The trial court granted the
Cities’ motions for summary judgment. Lerum appealed claiming the trial court
erred when it granted the motions for summary judgment because issues of fact
existed as to whether a pursuit occurred and whether the pursuit was a
proximate cause of her injuries. We find issues of fact exist, and we reverse and
remand for further proceedings. No. 87253-2-I/2
FACTS
Background
On the morning of October 31, 2019, Seattle Police Department (SPD)
Officer Gary Davenport and Bellevue Police Department (BPD) Officer Robert
Welty were traveling northbound on the I-5 freeway. Both officers were in the
HOV lane on their way to work. Officer Davenport was several vehicles in front
of Officer Welty. Traffic was stop and go because of an earlier accident, and the
officers were moving at approximately five to ten miles per hour.
While slowly moving in the left lane, Officer Welty heard a loud noise and
then saw a black SUV speed by him on his left, on the shoulder of the freeway.
Officer Welty estimated the vehicle was going in excess of 50 miles per hour. A
couple seconds later, the SUV passed Officer Davenport.
After the SUV passed Officer Davenport, he moved to the left, onto the
shoulder, to see if he could get a visual on the vehicle and see where and how
far it was traveling. Officer Davenport estimated the car was traveling
approximately 100 miles per hour when it passed him. He testified that he did
not believe the car was committing a felony, but deemed the car was engaged in
negligent and reckless driving. Officer Davenport increased his speed slightly
and remained moving at 15 to 20 miles per hour on the shoulder as the SUV
sped ahead. Officer Davenport also turned on his emergency lights to “provide
an awareness to all the drivers that were ahead that there’s a vehicle driving at a
high rate of speed” and alert them to the “dangerous situation.” Officer
2 No. 87253-2-I/3
Davenport was not aware there was another motorcycle officer (Officer Welty)
behind him.
Officer Welty observed Officer Davenport move onto the shoulder after he
was passed by the SUV. Officer Welty also moved onto the shoulder to
“investigate.” At the time, Officer Welty testified he believed the speeding vehicle
was a family member driving to the scene of the collision ahead. Officer Welty
maintained a speed of approximately 20 miles per hour and initiated his rear
emergency lights only. Officer Welty testified that shortly after he pulled onto the
shoulder, the SUV crested a hill and went out of sight.
Officer Davenport was able to maintain eyesight with the SUV as the
distance between his motorcycle and the SUV increased. Shortly after Officer
Davenport moved onto the shoulder—Officer Davenport estimated about six
seconds—the SUV collided with a vehicle in the HOV lane to the right of the
shoulder. About 450 feet ahead of where the collision occurred, the shoulder
narrowed from about 10 feet to 4 feet wide.
The SUV hit a vehicle occupied by Robin Lerum and her daughter, Jordyn
Myers. Officer Davenport followed Lerum and Myers to the hospital after the
accident and stayed at the hospital for about four hours. In her declaration,
Myers indicated she overheard a conversation between Officer Davenport and
her husband, who also worked for SPD. Myers contends Officer Davenport told
her husband the SUV was within its lane of travel but “driving too fast for his
liking,” so he pursued the SUV. According to Myers, Officer Davenport then told
her husband he got behind the SUV, at which point the SUV accelerated and
3 No. 87253-2-I/4
began driving on the shoulder, and Officer Davenport followed. Myers claims
Officer Davenport ended the conversation by stating that the vehicle he was
“after” was the one that crashed into her vehicle.
In her declaration, Myers recounts that Detective John Ford from SPD
came into her hospital room to check on her and update her about the
investigation. According to Myers, Detective Ford told her, “[t]he man who we
learned was driving [the SUV] said he saw that the police were after them, so he
got onto the left shoulder and accelerated to get away because he said he ‘got
spooked.’ ”
At the hospital, on the day of the collision, Detective Ford also interviewed
the occupants of the SUV, Oscar Hernandez-Buenrostro and Ernesto Rojas-
Renteria. In his interview, Hernandez-Buenrostro falsely told Detective Ford that
Rojas-Renteria was driving the vehicle when they got onto the freeway. He
stated that they saw a cop when they entered the freeway,1 and he told Rojas-
Renteria to “watch out.” According to Hernandez-Buenrostro, Rojas-Renteria
sped up and then Hernandez-Buenrostro did not see a cop behind them
anymore, but he said that he “saw the lights” and told Rojas-Renteria to slow
down. Hernandez-Buenrostro estimated Rojas-Renteria was driving “[m]aybe
120, 130” miles per hour. Hernandez-Buenrostro admitted to smoking cannabis
and methamphetamine that day.
1 A state trooper was parked at the on ramp where Hernandez- Buenrostro and Rojas-Renteria entered onto the freeway. The trooper did not follow the SUV after it merged onto the freeway.
4 No. 87253-2-I/5
Rojas-Renteria provided a different version of events during his interview
with Detective Ford. Rojas-Renteria stated Hernandez-Buenrostro was the
driver. Similar to Hernandez-Buenrostro, Rojas-Renteria said they saw a state
patrol vehicle when they entered the freeway, but the patrol car did not try to pull
them over. He stated that once they hit the flat part of the freeway, Hernandez-
Buenrostro “started smashing through the outside” and going to the left. Then,
Rojas-Renteria “saw a motorcycle officer” and he told Hernandez-Buenrostro to
stop, but Hernandez-Buenrostro said no. Rojas-Renteria said he thought they
were going “from 60, 70, 80” miles per hour. He noted that Hernandez-
Buenrostro tried to brake once the shoulder narrowed, but he could not control
the car.
Hernandez-Buenrostro subsequently pleaded guilty to vehicular assault
and admitted driving in a reckless manner, causing the collision and substantial
bodily harm to Lerum. Hernandez-Buenrostro stated he was “speeding and
passing on the shoulder after consuming [cannabis] and methamphetamine and
caused a 5-car crash.”
In November 2022, Lerum initiated a complaint against the City of Seattle
(Seattle) and the City of Bellevue (Bellevue)2 claiming Officer Davenport and
Officer Welty negligently pursued the SUV, violated police policies, failed to give
due regard to Lerum’s safety, and contributed to the collision. Both Seattle and
Bellevue moved for summary judgment, contending insufficient admissible
2 Where applicable, Seattle and Bellevue will be referred to collectively as the “Cities.”
5 No. 87253-2-I/6
evidence existed to support Lerum’s claims of negligence. The Cities both
maintained they did not owe Lerum a duty because the officers were not
engaged in a pursuit. And, even if the Cities had owed a duty, Lerum presented
no evidence to establish the Officers’ actions proximately caused the collision.
Bellevue specifically contended that no evidence existed to establish Hernandez-
Buenrostro saw Officer Welty and, as a result, increased his speed.
In support of its motion for summary judgment, Seattle submitted a
declaration from accident reconstructionist, Nathan Rose. Rose reviewed the
evidence and materials in the case and prepared a report outlining his analysis
and opinions on the incident. Rose concluded, among others, that before
Hernandez-Buenrostro applied the brakes, the SUV was going at least 60 miles
per hour, and the SUV was travelling approximately 50 to 55 miles per hour when
it hit Lerum’s vehicle. Rose opined that from the time Officer Davenport reached
20 miles per hour after entering the shoulder until the time of collision,
approximately 9.8 to 17.6 seconds elapsed.
In response to the Cities’ motions for summary judgment, Lerum retained
Russ Hicks, a law enforcement practices expert, to prepare a report evaluating
whether Officer Davenport’s and Officer Welty’s actions violated law enforcement
policies. Hicks’s report relied on applicable law enforcement policies and training
materials, relevant RCWs, and depositions and interviews related to the incident.
These included the interviews with Hernandez-Buenrostro, Rojas-Renteria, and
Myers’s declaration. Based on his review of the record, Hicks concluded the
following:
6 No. 87253-2-I/7
- Hernandez-Buenrostro drove onto the shoulder only after Officer Davenport got behind him. - The SUV accelerated to 80 to 100 miles per hour to flee Officer Davenport before it crashed into Lerum’s vehicle. - Officer Davenport engaged in a de[]facto pursuit3 of the SUV, violating law enforcement policies and standards. - Alternatively, Office Davenport engaged in a “ghosted pursuit.”4 - Because Officer Davenport initiated a pursuit, Hernandez-Buenrostro eluded the officer. - Officer Welty engaged in a de[]facto pursuit of the SUV, violating law enforcement policies and standards. - Officer Welty’s actions of pulling onto the shoulder and activating his rear emergency lights only was a violation of law enforcement policies and standards. - Both officers violated police policies by engaging in a pursuit in response to a misdemeanor traffic violation.
Lerum’s response in opposition to the Cities’ motions for summary
judgment also relied on the declaration of Jeremy Bauer, an accident
reconstructionist. Bauer concluded the following: a. [t]here were no visual obstructions that would have prevented the driver of the [SUV] from seeing both officers on their motorcycles as they drove on the shoulder of the Interstate; b. [t]he statements made by the occupants of the [SUV] confirming they saw lights and law enforcement behind them before the collision, corroborate the absence of visual obstructions between the [SUV] and the officers on the shoulder of the interstate in the moments leading up to the collision; c. [t]he driver of the [SUV] had a reasonable amount of time to observe the lights on Officer Davenport's motorcycle, notice both motorcycles on the shoulder of the interstate, but refused to stop.
3 A de facto pursuit is when the officer does not activate their emergency lights and sirens. 4 The International Association of Chiefs of Police coined the phrase “ghosted pursuit” to describe when officers engage in vehicle pursuit without reporting the incident.
7 No. 87253-2-I/8
In their replies, Bellevue and Seattle moved to strike the interviews with
Hernandez-Buenrostro and Rojas-Renteria.5 The Cities contended the
interviews were hearsay and were inadmissible as substantive evidence. Seattle
also requested the court exclude the statements of Officer Davenport as set forth
in Myers’s declaration. The Cities both asserted that Hicks’s opinions should be
excluded because they were mere factual determinations that relied on the
hearsay statements made by Hernandez-Buenrostro and Rojas-Renteria.6
In December 2024, the court held a hearing on the Cities’ summary
judgment motions. During the hearing, the court determined the interviews of
Hernandez-Buenrostro and Rojas-Renteria would be inadmissible for all
purposes. The court did not address the admissibility of Myer’s declaration.
Following the hearing, the court granted the Cities’ motions for summary
judgment and issued an order memorializing the bench ruling excluding the
statements of Hernandez-Buenrostro and Rojas-Renteria. In each of the orders
granting summary judgment, the court noted it did not find proximate cause: The Court does not find proximate cause. Specifically, the court does not find that but/for Officer [Davenport’s/Welty’s] actions, the driver—who was speeding and driving under the influence of drugs—would not have caused the accident.
Lerum appeals both orders granting summary judgment.
5 Bellevue moved separately to exclude the interviews of Hernandez- Buenrostro and Rojas-Renteria. 6 Seattle moved separately to exclude the opinion testimony of Hicks. This motion was scheduled for a later hearing, which did not take place because the summary judgment motion was granted before that date.
8 No. 87253-2-I/9
ANALYSIS
Summary Judgment
Lerum contends the court erred when it granted the Cities’ motions for
summary judgment because there are issues of fact as to whether Officer
Davenport and Officer Welty engaged in a pursuit of the SUV and whether the
pursuits were a causal factor of the collision. Both Bellevue and Seattle claim no
admissible evidence supports the conclusion a pursuit occurred or that the
Officers’ actions were a proximate cause of the collision. We conclude that
issues of fact exist as to whether Officer Davenport and Officer Welty engaged in
a pursuit.
We review a trial court’s decision to grant summary judgment de novo.
Lakey v. Puget Sound Energy, Inc, 176 Wn.2d 909, 922, 296 P.3d 860 (2013).
We also review de novo a trial court’s “ruling on a motion to strike evidence made
in conjunction with a summary judgment motion.” Rice v. Offshore Systems, Inc.,
167 Wn. App. 77, 85, 272 P.3d 865 (2012).
A party is entitled to summary judgment as a matter of law when no
genuine issue exists as to any material fact. Kofmehl v. Baseline Lake, LLC, 177
Wn.2d 584, 594, 305 P.3d 230 (2013); CR 56(c). “A genuine issue of fact exists
when reasonable minds could disagree on the facts controlling the outcome of
the case.” Mackey v. Home Depot USA, Inc., 12 Wn. App. 2d 557, 569, 459
P.3d 371 (2020). All facts and reasonable inferences are viewed in the light most
favorable to the nonmoving party. Kofmehl, 177 Wn.2d at 594.
9 No. 87253-2-I/10
The party seeking summary judgment “bears the initial burden of showing
the absence of an issue of material fact.” Young v. Key Pharms., Inc., 112
Wn.2d 216, 225, 770 P.2d 182 (1989). If the moving party meets this burden, the
burden then shifts to the nonmoving party to show that facts support each
element essential to their claim. Young, 172 Wn.2d at 225. Where there is
“ ‘competing, apparently competent evidence,’ ” summary judgment is improper.
Woods View II, LLC v. Kitsap County, 188 Wn. App. 1, 19, 352 P.3d 807 (2015)
(quoting Larson v. Nelson, 118 Wn. App. 797, 810, 77 P.3d 671 (2003)).
The facts presented by the parties must be evidentiary in nature—
conclusory statements of fact or speculation are insufficient. Overton v. Consol.
Ins. Co., 145 Wn.2d 417, 430, 38 P.3d 322 (2002); Elon Constr., Inc. v. E. Wash.
Univ., 174 Wn.2d 157, 169, 273 P.3d 965 (2012). Speculation is “[t]he practice
of theorizing about matters over which there is no certain knowledge.” BLACK’S
LAW DICTIONARY 1692 (12th ed. 2024). Conversely, circumstantial evidence is
“ ‘evidence of facts or circumstances from which the existence or nonexistence of
other facts may be reasonably inferred from common experience.’ ” State v.
Jackson, 145 Wn. App. 814, 818, 187 P.3d 321 (2008) (quoting WASHINGTON
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 5.01, at 124 (2d
ed.1994)). At the summary judgment stage, “it is irrelevant whether the fact
question arises from direct or circumstantial evidence.” Asphy v. State, 31 Wn.
App. 2d 605, 630, 552 P.3d 325, review denied, 3 Wn.3d 1033 (2024).
The facts must also be admissible; “ ‘unauthenticated or hearsay evidence
does not suffice.’ ” Spohn v. Dep’t of Lab. and Indus., 20 Wn. App. 2d 373, 378-
10 No. 87253-2-I/11
79, 499 P.3d 989 (2021) (quoting SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 141,
331 P.3d 40 (2014)).
When a party presents expert opinions to support their opposition to
summary judgment, “ ‘[t]he expert’s opinion must be based on fact and cannot
simply be a conclusion or based on an assumption.’ ” Peterhans v. Univ. of
Wash., 34 Wn. App. 2d 745, 755, 571 P.3d 322 (2025) (quoting Volk v.
DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d 254 (2008)). If the nonmoving party
fails to produce sufficient facts to support the elements of their claim, summary
judgment is proper. Lake Chelan Shores Homeowners Ass’n v. St Paul Fire &
Marine Ins. Co., 176 Wn. App. 168, 179, 313 P.3d 408 (2013).
Negligence
Lerum contends Officer Davenport and Officer Welty breached their duties
owed to Lerum—both under common law and statute—and those actions were
the proximate cause of her injuries. The Cities contend its respective officers did
not have a duty to Lerum, and even if they did owe her a duty, they did not
breach it. We conclude issues of material fact exist concerning both duty and
causation; therefore, the trial court erred when it granted the Cities’ motions for
summary judgment.
“To prevail on a negligence claim, a plaintiff ‘must show (1) the existence
of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the
breach as the proximate cause of the injury.’ ” Ehrhart v. King County, 195
11 No. 87253-2-I/12
Wn.2d 388, 396, 460 P.3d 612 (2020) (internal quotation marks omitted) (quoting
N.L. v. Bethel Sch. Dist., 186 Wn.2d 422, 429, 378 P.3d 162 (2016)).7
1. Duty and Breach
“The threshold determination of 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).
Whether a party breached a duty of care is generally a question of fact. Meyers
v. Ferndale Sch. Dist., 12 Wn. App. 2d 254, 262, 457 P.3d 483 (2020). But,
breach “may be determined as a matter of law where reasonable minds could not
differ.” Walter Family Grain Growers, Inc. v. Foremost Pump & Well Servs., LLC,
21 Wn. App. 2d 451, 459-60, 506 P.3d 705 (2022).
“At common law, every individual owes a duty of reasonable care to
refrain from causing foreseeable harm in interactions with others.” Beltran-
Serrano v. City of Tacoma, 193 Wn.2d 537, 550, 442 P.3d 608 (2019) (citing
RESTATEMENT (SECOND) OF TORTS, § 281 cmt. e (Am. Law Inst. 1965)). This duty
applies to law enforcement and “encompasses the duty to refrain from directly
causing harm to another through affirmative acts of misfeasance.” Beltran-
Serrano, 193 Wn.2d at 550. To impose liability for the negligent actions of law
enforcement, the duty owed must be one owned to the injured person as an
individual and “ ‘not merely the breach of an obligation owed to the public in
general (i.e., a duty to all is a duty to no one).’ ” Babcock v. Mason County Fire
Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001) (internal quotation marks
omitted) (quoting Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447
7 The Cities do not dispute Lerum suffered an injury.
12 No. 87253-2-I/13
(1988)). A 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
v. State, 197 Wn. App. 77, 93, 387 P.3d 1093 (2016).
SPD and BPD policies outline the duties of law enforcement officers with
regard to emergency response procedures. SPD’s policy on emergency vehicle
operations defines “emergency response” as “an officer operat[ing] an authorized
police vehicle in a matter that is substantially outside of a normal traffic pattern.”
According to the policies, officers may drive in an emergency response “only
when the need outweighs the risk.” (Capitalization omitted.) Under the policies,
“[m]isdemeanor or property crimes do not justify an emergency response unless[]
responding to an in-progress crime, [o]r [w]here there is a legitimate concern for
the preservation of life.”
Under SPD policies, a pursuit occurs “when an officer, in an effort to keep
pace with and/or immediately stop or apprehend an eluding driver, drives in a
matter that is outside of normal traffic restrictions.” (Emphasis omitted.)
“Eluding” occurs 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.
SPD policies also direct officers in pursuit to use lights and sirens “as necessary
to warn others of the emergency nature of the situation.” (Capitalization omitted.)
13 No. 87253-2-I/14
BPD policies also outline the requirements for responding to emergency
situations and engaging in pursuits. BPD policies state, “[w]here no emergency
exists (i.e., routine calls for service), officers will proceed without the use of
emergency equipment and in compliance with all traffic regulations.” When
responding to an emergency, officers shall “evaluate the net benefit (giving due
regard to the risk) of exercising the emergency vehicle privileges set forth in
RCW 46.61.035.”
BPD policies outline factors that “shall be considered by every officer
when responding to an emergency call.” The factors include safety of the public
in the area, volume of vehicular and pedestrian traffic, and the speeds involved.
The policies state that circumstances may exist where the use of emergency
equipment may not be desirable, such as when the “use of the emergency
equipment may alert the suspect to the approaching police.” If an officer
chooses not to use the vehicle’s emergency equipment, “the officer will obey all
traffic regulation.”
BPD policies define “pursuit” as, [a] vehicle attempt to apprehend the occupant(s) of a motor vehicle when the driver has been requested or signaled to stop by a uniformed officer operating a marked police vehicle and giving such signal by using a hand, voice, emergency light or siren, AND the driver is resisting apprehension by maintaining or increasing the vehicle's speed or otherwise maneuvering his/her vehicle in such a manner as to elude the officer.
The policies provide that lights and sirens are required continuously through a
pursuit. Pursuits for traffic violations, misdemeanors, gross misdemeanors and
property crimes alone are prohibited under BPD policies. The policies also
14 No. 87253-2-I/15
define “paralleling” or “trailing,” which is when an officer drives parallel to the
pursuit route or trails at a safe distance behind the pursuit route with lights and
sirens engaged.
In addition to duty arising from department policies, duty can arise out of
statutory authority. Mason v. Bitton, 85 Wn.2d 321, 325, 534 P.2d 1360 (1975).
Under RCW 46.61.035(4), the driver of an authorized emergency vehicle has a
duty “to drive with due regard for the safety of all persons” and the driver is
responsible for “the consequences of his or her reckless disregard for the safety
of others.” RCW 46.61.035 provides, in relevant part, operators of authorized
emergency vehicles, “when responding to an emergency call or when in the
pursuit of an actual or suspected violator of the law,” may (a) [p]ark or stand, irrespective of the provisions of this chapter; (b) [p]roceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation; (c) [e]xceed the maximum speed limits so long as he or she does not endanger life or property; (d) [d]isregard regulations governing direction of movement or turning in specified directions.
The privileges set forth in RCW 46.61.035 apply only when the vehicle is
making use of visual signals meeting the requirements of RCW 46.37.190.
RCW 46.37.190 requires every authorized emergency vehicle to “be equipped
with at least one lamp capable of displaying a red light visible from at least 500
feet in normal sunlight and a siren capable of giving an audible signal.”
Additionally, under RCW 46.61.035, “authorized emergency vehicles shall use
15 No. 87253-2-I/16
audible signals when necessary to warn others of the emergency nature of the
situation.”
a. Pursuit
Here, the Cities claim a duty exists only if a pursuit occurred, and both
Cities maintain no pursuit occurred. Seattle contends Officer Davenport did not
engage in a pursuit because no evidence indicates that Officer Davenport
activated his siren or made any effort to keep pace with or immediately
apprehend Hernandez-Buenrostro. Seattle points to Officer Davenport’s
deposition where he testified that he was not trying to catch up with the SUV and
his intention for turning on his light was to warn vehicles ahead that a dangerous
driver was coming up on their left. But, Officer Davenport’s intentions for his
actions are not determinative—what is relevant at the summary judgment stage
is the fact that he engaged in those actions at all. Officer Davenport activated his
light and moved onto the shoulder behind the SUV. SPD policy does not require
an authorized emergency vehicle to signal with both lights and a siren to
effectuate a pursuit—the use of lights alone may support the finding of a pursuit.
Accordingly, Officer Davenport’s movement onto the shoulder and use of his light
creates an issue of fact as to whether he engaged in a pursuit.
Similarly, Bellevue maintains no evidence exists that Office Welty signaled
for the SUV to stop or that Hernandez-Buenrostro was “resisting apprehension.”
Bellevue cites to Officer Welty’s deposition where he testified he was not chasing
the SUV, he was merely “interested in knowing where [the SUV] was going” and
was “going to investigate.” But, like Officer Davenport, Officer Welty’s
16 No. 87253-2-I/17
explanation of his actions does not establish the absence of a pursuit for the
purposes of summary judgment. Officer Welty turned on his rear-facing light and
moved onto the shoulder. BPD policies do not distinguish between rear-facing
lights and other emergency lights for the purpose of a pursuit. Therefore, an
issue of fact exists as to whether Officer Welty’s actions are consistent with the
definition in BPD’s policy of signaling the SUV to stop.
b. Eluding
Next, the Cities contend a pursuit did not occur because no admissible
evidence exists to support the conclusion that Hernandez-Buenrostro intended to
elude either Officer Davenport or Officer Welty.8 The Cities claim Lerum relies on
inadmissible evidence to contend Hernandez-Buenrostro saw Officer Davenport
or Office Welty and, in response, took evasive actions, such as increasing speed
or refusing to stop.9
But Bauer relied on the data in Rose’s report to conclude there was a
reasonable amount of time between when Officer Davenport and Officer Welty
turned on their lights and when the SUV crashed for the occupants of the SUV to
8 The Cities contend Russ Hicks’s report relies on the inadmissible interviews of Hernandez-Buenrostro and Rojas-Renteria and Myers’s declaration in reaching his conclusions. While some of Hicks’s conclusions were supported by the inadmissible interviews, he also relied on admissible evidence, such as the officers’ testimony, facts underlying the crash, applicable SPD policies, and law enforcement training materials. 9 The only evidence supporting Hicks’s conclusion that Hernandez- Buenrostro increased his speed after seeing Officer Davenport is based on Myers’s declaration. Seattle contends this evidence is inadmissible because it is hearsay, but the trial court never ruled the declaration inadmissible. Because enough evidence creates a material issue of fact without Myers’s declaration, we need not address its admissibility.
17 No. 87253-2-I/18
see the lights and react. While Rose’s report noted that the SUV’s speed at the
time of impact was not a marked increase from even the lowest estimate
provided by witnesses, that finding does not establish that Hernandez-Buenrostro
did not maintain speed prior to the collision. And maintaining speed may be
indicative of a refusal to stop. Based solely on Bauer’s report, a reasonable
person could infer that Hernandez-Buenrostro saw either of the officers’ lights
and engaged in eluding behavior by maintaining his speed and refusing to stop.
In addition to contending Lerum’s experts relied on inadmissible evidence,
the Cities claim Lerum’s experts’ opinions do not create a triable issue of fact.
The Cities contend Hicks’s opinions are merely conclusory statements and do
not involve the application of specialized knowledge. Specifically, Seattle
maintains that because Hicks did not perform a forensic speed analysis or
accident reconstruction analysis, the subject matter is not within Hicks’s area of
expertise. But analyzing law enforcement procedures and practices is precisely
the type of work that Hicks specializes in.10
The Cities also insist any opinions that Hernandez-Buenrostro “could have
seen” Officer Davenport or Officer Welty are purely speculative and are
insufficient to withstand summary judgment. Both Seattle and Bellevue cite to
Harder v. City of Seattle11 to support the contention that there is a lack of
proximate cause, but the facts of that case are distinguishable. In Harder, Officer
10 Even the trial court noted Hicks was “clearly qualified.” 11 No. 85812-1-I (Wash. Ct. App. Oct. 28, 2014) (unpublished), https:// www.courts.wa.gov/opinions/pdf/858122.pdf
18 No. 87253-2-I/19
Stevenson followed Payton Maddy for approximately a minute and a half through
a neighborhood in North Seattle before Maddy hit David Harder's motorcycle,
killing him. No. 85812-1-I, slip op. at 1. Harder’s estate sued the City of Seattle,
alleging negligence. Id. at 4. Seattle moved for summary judgment, contending
no evidence existed to support a claim that Officer Stevenson’s actions were a
proximate cause of the collision. Id. at 4-5. The estate opposed the motion,
claiming “Officer Stevenson’s conduct was a proximate cause of the collision
because Maddy’s erratic driving shows that he was fleeing from Officer
Stevenson.” Id. at 6. The trial court granted the City’s motion. Id. at 7. On
appeal, we affirmed the trial court, noting “no affirmative evidence that Maddy
saw Officer Stevenson” existed. Id. at 15.
There are two distinguishing elements in Harder. First, in Harder, the
expert testimony concluded that there were only a few seconds where Maddy
could have possibly seen Officer Stevenson.12 Id. at 14. Here, while there is
dispute as to how much time passed between when the officers turned on their
lights and when the collision occurred, it was somewhere between 6 to 17.6
seconds. Additionally, unlike Harder, where Maddy was making multiple turns,
there was a straight line of sight between the SUV and the officers.
Second, in Harder, Maddy testified multiple times that he did not see
Officer Stevenson. No direct testimony contradicted Bauer’s inference that,
12 One expert testified Maddy would have had the ability to see Officer Stevenson’s lights activated for a total of five seconds. Harder, No. 85812-1-I, slip op. at 5-6. Another expert estimated there were only four, split second, opportunities where Maddy could have seen Officer Stevenson following him. Id.
19 No. 87253-2-I/20
based on the facts of the case, Hernandez-Buenrostro could have seen either
officer. While Officer Welty testified the SUV crested a hill and went out of sight,
Bauer’s report concluded that, while there was a slight rise in the road, no
roadway obstructions prevented Hernandez-Buenrostro from seeing Officer
Davenport or Officer Welty. Contrary to Seattle’s assertion, Bauer’s conclusion
did not rely on the inadmissible statements of Hernandez-Buenrostro and Rojas-
Renteria; instead, his conclusions relied on the testimony of the officers and
images from the freeway where the incident occurred.
The admissible portions of Hicks’s and Bauer’s opinions raise genuine
issues of fact as to whether a pursuit occurred and, as such, whether the officers
breached their duties under their respective police department policies.
2. Causation
Lerum contends sufficient evidence exists to create an issue of material
fact as to whether the actions of Officer Welty and Officer Davenport were a
proximate cause of the collision. The Cities claim Lerum presents no admissible
evidence to establish cause in fact. We agree with Lerum.
Proximate causation requires two elements: cause in fact and legal
causation. Little v. Countrywood Homes, Inc., 132 Wn. App. 777, 780, 133 P.3d
944 (2006). Cause in fact “ ‘refers to the physical connection between an act and
an injury.’ ” Cho v. City of Seattle, 185 Wn. App. 10, 16, 341 P.3d 309 (2014)
(internal quotation marks omitted) (quoting M.H. v. Corp. of Catholic Archbishop
of Seattle, 162 Wn. App. 183, 194, 252 P.3d 914 (2011)). Typically, cause in fact
is a question for the jury, “but it may be decided as a matter of law if the causal
20 No. 87253-2-I/21
connection between the act and the injury is ‘so speculative and indirect that
reasonable minds could not differ.’ ” Cho, 185 Wn. App. at 16 (internal quotation
marks omitted) (quoting Moore v. Hagge, 158 Wn. App. 137, 148, 241 P.3d 787
(2010)). Conflicting views presented in declarations, deposition testimony, and
expert reports as to whether the alleged breach was the cause of injury
establishes a factual question and are sufficient to survive summary judgment.
Meyers, 197 Wn. 2d at 265.
To demonstrate the existence of proximate cause, a party utilizes the “but
for” test. Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 864, 147 P.3d
600 (2006). The plaintiff must establish that “but for” the defendant’s conduct,
the injury would not have occurred. Smith, 135 Wn. App. at 864. The claimant
does not need to establish cause in fact with absolute certainty, it is enough to
present evidence “sufficient to allow 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.” Little, 132 Wn. App. at 781. But evidence establishing
proximate cause must amount to more than mere speculation. Moore, 158 Wn.
App. at 154.
Here, the Cities contend Lerum presents no evidence to show Hernandez-
Buenrostro saw Officer Davenport or Officer Welty and, as a result, increased his
speed or took evasive action. But Lerum’s experts’ reports show that
Hernandez-Buenrostro had the opportunity to see the officers behind him, and it
is reasonable to believe Hernandez-Buenrostro reacted to the presence of the
officers.
21 No. 87253-2-I/22
As discussed supra, Bauer concluded in his report that sufficient time
elapsed between the officers activating their lights and the time of collision for
Hernandez-Buenrostro to see either officer and respond. Additionally, Bauer
noted no visual barriers existed to obstruct Hernandez-Buenrostro’s view of the
officers. Hicks’s report, citing a Washington State Criminal Justice Training
Commission manual, noted “fleeing drivers will more often than not continue to
flee using evasive driving tactics.”13 Importantly, here, it is not necessary that
Hernandez-Buenrostro increased his speed—eluding also includes taking
evasive action or refusing to stop. Because there are conflicting expert opinions,
supported by admissible evidence, causation cannot be determined on summary
judgment.
Because genuine issues of material fact exist concerning breach of duty of
causation, we conclude the trial court erred when it granted the Cities’ motions
for summary judgment.
We reverse and remand for further proceedings.
WE CONCUR:
13 At the summary judgment hearing, the trial court noted this expert research is evidence, and it is not necessary to have the drivers testify why they may have taken elusive actions “because there is research on that.”