William Dussault, V. Washington State University, Respondent's

• Court: Court of Appeals of Washington
• Decided: December 12, 2022
• Docket: 82525-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

WILLIAM DUSSAULT, as Litigation No. 82525-9-I Guardian ad Litem on behalf of MATTHEW GRAY; ANDREA GRAY; and DIVISION ONE JIM GRAY, UNPUBLISHED OPINION Petitioner,

v.

WASHINGTON STATE UNIVERSITY; a subdivision of the State of Washington; and TAU KAPPA EPSILON FRATERNITY; an Indiana Corporation; TKE ALPHA GAMMA CHAPTER, aka ALPHA-GAMMA, an association; and TKE HOLDING GROUP ALPHA GAMMA CHAPTER; a Washington corporation; and ABC, DEF, GHI, JKL CORPORATIONS; and JOHN/JANE DOES,

Respondents.

ANDRUS, C.J. —William Dussault, the litigation guardian ad litem for

Matthew Gray, and Matthew’s parents, appeal the summary judgment dismissal of

their claims against Tau Kappa Epsilon Fraternity and its affiliated entities for

allegedly overserving alcohol to Matthew, an underage freshman at Washington

State University, and causing him to sustain injuries from a fall from his dormitory

window. We reverse the summary judgment and remand for further proceedings.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82525-9-I/2

FACTS

In August 2017, 18-year-old Matthew Gray 1 started his freshman year at

Washington State University (WSU). Matthew moved into a university-run

residence hall, where he moved his bed against the window in his room. He also

became a freshman pledge of the Tau Kappa Epsilon (TKE) fraternity.

On August 23, 2017, Matthew attended an off-campus party at the TKE

fraternity house, where he drank alcohol and became intoxicated. Sometime

before midnight, Matthew went back to his residence hall and encountered his

Resident Advisor, Matthew Lomasney, who noticed Matthew was under the

influence.

Shortly before 2 a.m. another resident, Aaron Cothard, returning to the

dormitory, noticed Matthew curled up and sleeping against his second story

window. A few seconds later, Cothard saw the window screen pop off and Matthew

fall to the concrete below without reaching out to break his fall. Matthew sustained

a traumatic brain injury, requiring extensive brain, cranial, and orthopedic surgeries

and brain damage rehabilitation.

Matthew’s litigation guardian ad litem, William Dussault, and his parents,

Andrea and Jim Gray (collectively “Dussault”) filed suit against both WSU and TKE

for negligence. 2 Dussault alleged that TKE was negligent in knowingly serving

alcohol to a minor. He alleged that WSU was negligent in permitting TKE to host

parties at which students would engage in excessive alcohol consumption and

1 We will refer to Matthew and his parents by their first names for clarity. 2 Dussault named TKE Fraternity, an Indiana corporation, TKE Alpha Gamma Chapter, aka Alpha-

Gamma, an association, and TKE Holding Group Alpha Gamma Chapter, a Washington corporation. We refer to these entities collectively as “TKE.” -2– No. 82525-9-I/3

failing to warn freshmen of the hazards associated with the dorm windows and

failing to train the resident advisors on these hazards and precautions needed to

prevent student falls from heights.

Both TKE and WSU denied liability and asserted that other parties, including

Matthew himself, were at fault. WSU specifically raised the affirmative defenses

that Matthew’s injuries were a result of his own negligence, RCW 5.40.060 barred

liability because Matthew was under the influence of alcohol and more than 50

percent at fault, Matthew’s injuries were caused by TKE, and any award to

Matthew must be reduced by an amount equal to the percentage of fault

attributable to non-parties.

TKE moved for summary judgment, seeking dismissal of Matthew’s claims,

because Dussault conceded in discovery that he had no evidence to prove that

alcohol consumption was a proximate cause of Matthew’s fall. Dussault did not

oppose TKE’s motion. In response, Dussault represented to the trial court that

“there is no evidence that Matthew Gray’s intoxication was a proximate cause of

his injuries.” Dussault submitted a declaration from Dr. Jennifer Souders, who

reviewed the record and reported that on August 23, 2017, witnesses saw Matthew

drinking, experiencing slurred speech, leaning against walls to walk, getting lost in

his residence hall after the party, and needing the assistance of Lomasney to find

a restroom to get water and vomit. Lomasney left Matthew in his room between

11:50 p.m. and 12:00 a.m. Matthew fell from his dorm window almost two hours

later, at 1:49 a.m. Hospital records indicated that Matthew’s blood serum level at

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2:05 a.m. was 258 mg/dL. 3 Dr. Souders computed his blood alcohol level to be

0.219 g/dL.

Dr. Souders opined that Matthew’s “central nervous system was impaired

to some degree at the time that he fell out of his dorm window and at the time that

he was interacting with resident advisor Matthew Lomasney.” She also testified

that “[o]n a more probable than not basis, [Matthew] would have had decreased

physical and cognitive abilities compared to a sober person at the time of his fall.”

Dr. Souders stated that Matthew likely experienced increased drowsiness,

decreased perception, increased reaction time, increased sensory-motor

incoordination, decreased balance, decreased memory, slurred speech and

vomiting. But she nevertheless “[could not] say on a more probable than not basis

that [Matthew’s] alcohol intoxication was a contributing factor to his fall.” She

concluded that “even while accepting as true that [Matthew] had some degree of

diminished physical and mental acuity at the time of the fall, there is no way to

determine if this contributed to his fall.” She further opined that “no qualified

medical professional could determine on a more probable than not basis, to a

reasonable degree of medical certainty, whether alcohol intoxication was a

contributing factor in [Matthew’s] fall.”

Dussault not only asked the trial court to “issue an [o]rder dismissing the

TKE Defendants,” but he also asked the court to preclude WSU from arguing or

seeking to admit evidence at trial that Matthew’s intoxication caused or contributed

3 Dr. Souder testified that fatalities from alcohol poisoning are reported at blood serum levels that

meet or exceed 400 mg/dL and that Matthew’s level was not in the lethal range. -4– No. 82525-9-I/5

to his damages. Neither TKE nor Dussault moved to dismiss WSU’s affirmative

defenses.

On the same day Dussault requested the dismissal of claims against TKE,

WSU submitted evidence in opposition to TKE’s summary judgment motion. WSU

submitted the declaration of Dr. Daniel Repplinger to establish the impact of

Matthew’s alcohol consumption that night. Dr. Repplinger testified that Matthew’s

blood alcohol concentration was 0.258 g/dL, over three times the legal limit to

operate a motor vehicle, 0.08 g/dL. He recounted evidence that witnesses

observed Matthew consuming alcohol beginning as early as 8:00 p.m. that evening

and drinking high alcohol concentration malt beverages and beer throughout the

night. Dr. Repplinger recounted testimony from Lomasney that Mathew lost his

key card and forgot his password and needed 30 minutes to recall. He stated:

Based on witness reporting and the BAC of [Matthew,] he was likely severely intoxicated at the time of the fall. A BAC of .258 can result in a variety of symptoms including disorientation, mental confusion, muscular incoordination, slurred speech, loss of motor function, decreased response to stimuli, impaired consciousness, and sleep or stupor. At the time of his fall, [Matthew] was neurologically and physically impaired by the alcohol he had consumed earlier that evening.

At the March 29, 2021 hearing, the trial court concluded that, by joining

TKE’s motion, Dussault had in effect chosen not to prosecute Matthew’s claim

against the fraternity. WSU pointed out that in addition to the dismissal of

Matthew’s claims against TKE, Matthew was also asking the court to “take the

issue of intoxication away from the jury.” At the conclusion of the hearing, the trial

court concluded that the only motion before it was TKE’s motion to dismiss

Matthew’s claims against the fraternity, that Dussault agreed to the dismissal of

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those claims. Based on that agreement, it granted TKE’s summary judgment. It

further ruled that

to the extent there is an effort here to also argue that nobody [with a claim] could prove TKE’s failure to monitor and restrict the amount of alcohol that was served to the child in this case, [Matthew], that is something [that’s] never going to be successful at summary judgment on this record. . . . [T]he evidence taken in the light most favorable to the nonmoving party, which here would be only, frankly, WSU defending its affirmative defense is that [Matthew] was over- served by a lot at a TKE function; that TKE’s responsibility to monitor over-service should lead to people of [Matthew’s] age wasn’t fulfilled, and that [Matthew] was very, very intoxicated when he returned to his dormitory and he showed his impairment in a number of different ways to people who interacted with him. . . . So a jury could reasonably determine that a cause of [Matthew] going out the window and being badly injured was the fact that he was very drunk and because he had been over-served at a TKE function. And that inference reasonably arises from this evidence, you know, partly because we have a clash of the experts, but mostly because that’s what the evidence shows when it’s construed in the light most favorable to a party that isn’t TKE in this case.

It indicated its intent to sign an order “that simply indicates that without objection

from plaintiff, TKE is dismissed form this lawsuit from plaintiff’s claims” and that its

ruling “does not in any way affect the viability of WSU’s affirmative defenses,

including its affirmative defense of TKE being negligent and over-serving [Matthew]

. . . .” In its written order, the court reiterated that it “[made] no findings of fact or

conclusions of law regarding WSU’s affirmative defenses or any other factual

issue.”

Dussault moved for reconsideration under CR 59(a)(7), arguing that the trial

court should modify the order to reflect that TKE was dismissed on summary

judgment and was thus a fault-free party against whom WSU could not seek to

allocate fault under RCW 4.22.070. Alternatively, Dussault argued that if the trial

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court found a genuine issue of material fact as to TKE’s liability, then it should not

have granted summary judgment at all.

The trial court denied the motion for reconsideration, reiterating that the only

motion before it was a motion to dismiss Dussault’s claim against TKE, not a

motion to dismiss WSU’s affirmative defenses and it had granted TKE’s motion

solely on the basis that Dussault did not oppose it. The court noted that “[there

are] significant material issues of fact as to plaintiff’s intoxication and the causal

relationship with his injury” and repeated that its ruling had “no effect whatsoever”

on WSU’s affirmative defenses.

Dussault asked the trial court to certify the orders for appeal under CR

54(b), or in the alternative, to certify the question for discretionary review pursuant

to RAP 2.3(b)(4). The trial court denied this motion, stating: “For the final time, this

Court granted TKE’s motion for dismissal of plaintiff’s claims against TKE because

plaintiff did not oppose it. The Court did not reach or rule upon proximate

causation. That an unopposed motion should be granted is not a matter that merits

appellate review.”

This court granted Dussault’s motion for discretionary review.

ANALYSIS

Dussault argues that the trial court erred in dismissing TKE if it did not also

foreclose WSU from seeking to allocate fault to TKE.

Appellate courts review a summary judgment order de novo and perform

the same inquiry as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC,

196 Wn.2d 199, 205, 471 P.3d 871 (2020). A moving party is entitled to summary

judgment “if the pleadings, depositions, answers to interrogatories, and -7– No. 82525-9-I/8

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact.” CR 56(c). We consider all the evidence and

reasonable inferences in the light most favorable to the nonmoving party. Keck v.

Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). “A genuine issue of material

fact exists when reasonable minds could differ on the facts controlling the outcome

of the litigation.” Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484,

258 P.3d 676 (2011).

To prevail on his negligence claim, Dussault must show (1) the existence of

a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) that

the breach of duty was the proximate cause of the injury. N.L. v. Bethel Sch. Dist.,

186 Wn.2d 422, 429, 378 P.3d 162 (2016). TKE sought summary judgment on the

issue of causation. Dussault did not oppose that motion and, in fact, affirmatively

requested the same relief TKE sought—dismissal of all claims against TKE.

If the trial court initially erred in dismissing TKE, Dussault invited that error.

The invited error doctrine precludes a party from setting up an error at the trial

court and then complaining of it on appeal. Shavlik v. Dawson Place, 11 Wn. App.

2d 250, 270, 452 P.3d 1241 (2019). The doctrine applies when a party takes

affirmative and voluntary action that induces the trial court to take an action that

the party later challenges on appeal. Grange Ins. Ass'n v. Roberts, 179 Wn. App.

739, 774, 320 P.3d 77 (2013). Despite finding a material question of fact, the trial

court granted summary judgment to TKE because Dussault asked it to do so.

Dussault, in responding to the TKE motion, wrote:

TKE Defendants state [in] their Motion for Summary Judgment that “Plaintiffs have repeatedly and unequivocally admitted that [Matthew] was asleep at the time of the incident, was -8– No. 82525-9-I/9

not acting under the influence of alcohol and that alcohol did not cause or contribute to his fall.” This is correct. Plaintiffs admit that Matthew was intoxicated at the time of the subject incident. However, Plaintiffs are aware of no evidence supporting the contention that Matthew’s intoxication caused or contributed to the subject incident.

(Emphasis added.) Dussault “respectfully request[ed] that the Court issue an

Order dismissing the TKE Defendants . . . .” Dussault cannot complain that the

court erred in granting the summary judgment when he asked for that relief. See

Grange Ins. Ass’n, 179 Wn. App. at 774 (a party cannot complain that the trial court

dismissed a claim for the “wrong reason” when that party affirmatively asked the

court to dismiss the claim and failed to argue the merits of the claim).

But the real issue is not the court’s dismissal of TKE but the court’s refusal

to preclude WSU from seeking to apportion fault to TKE at trial. Dussault argued

on reconsideration that the summary judgment order is a final judgment in TKE’s

favor, making TKE a fault-free entity to whom fault cannot be allocated as a matter

of law under RCW 4.22.070. Apparently, Dussault believed that by not opposing

TKE’s summary judgment, he could in effect obtain a dispositive ruling

undercutting WSU’s main defense in the case.

The court clearly was not willing to allow Dussault to obtain such a legal

ruling without Dussault properly putting the issue before it in a dispositive motion.

The trial court correctly concluded that TKE’s motion was the only motion properly

before it. See Doyle v. Lee, 166 Wn. App. 397, 272 P.3d 256 (2012) (trial court

had no opportunity to consider a motion that was not properly noted and therefore

was not properly before that court). It was not an abuse of discretion to deny

Dussault’s attempt to obtain what is effectively a significant dispositive legal ruling

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adverse to WSU when Dussault did not file a CR 56 motion to give WSU the time

and opportunity to respond. 4

But the trial court did abuse its discretion in not granting Dussault’s motion

for reconsideration when it became clear Dussault was not asking for a voluntary

dismissal, and without a legal ruling that TKE was fault-free, wanted reinstatement

of Matthew’s claims against TKE. CR 59(a) permits a trial court to grant

reconsideration of a decision that is “contrary to law.” “Motions for reconsideration

are addressed to the sound discretion of the trial court; a reviewing court will not

reverse a trial court’s ruling absent a showing of manifest abuse of that discretion.”

Wagner Dev., Inc. v. Fid. & Deposit Co. of Maryland, 95 Wn. App. 896, 906, 977

P.2d 639 (1999). But refusal to correct a legal error raised in a motion for

reconsideration is an abuse of discretion. Singleton v. Naegeli Reporting Corp.,

142 Wn. App. 598, 612, 175 P.3d 594 (2008).

Here, the trial court correctly concluded that it could not deem TKE to be

without fault as there are genuine issues of material fact as to whether TKE caused

Matthew’s injuries by overserving alcohol to him at a frat party. 5 In the hours

leading up to the fall, TKE served Matthew, a minor, so much alcohol that he was

unable to find his dorm room or walk unassisted. More than two hours after he left

4 Relying on federal civil procedure rules, Dussault argues that no separate motion was required

because the court had the “obligation to grant summary judgment whenever it is warranted, even if it is in favor of the nonmoving party.” But under Washington law, granting summary judgment to the nonmoving party is only appropriate when both parties seek a resolution of a legal issue based on stipulated facts, Mut. of Enumclaw Ins. Co. v. Cox, 110 Wn.2d 643, 653, 757 P.2d 499 (1988), or when the moving party has admitted liability to the nonmoving party. Leland v. Frogge, 71 Wn.2d 197, 201, 427 P.2d 724 (1967). Neither circumstance exists here. 5 Dussault contends that the trial court failed to give him the benefit of all the evidence in the record,

which establishes a genuine issue of material fact and precludes summary judgment. Dussault never asked the court to deny the summary judgment based on WSU’s evidence. He cannot raise on appeal an argument he failed to advance below. RAP 2.5(a); Aventis Pharm., Inc. v. State, 5 Wn. App. 2d 637, 650, 428 P.3d 389 (2018). - 10 – No. 82525-9-I/11

the party, his blood alcohol concentration remained somewhere between 0.218

g/dL and 0.258 g/dL—a level high enough to cause diminished physical and mental

acuity. An eye witness saw Matthew fall from a second story window without

reaching out to break his fall, from which a reasonable jury could conclude Matthew

was in an alcohol-induced stupor. In discovery, Matthew conceded that “the

alcohol in [his] system may have been a contributing factor to his fall.” A

reasonable jury could conclude that TKE’s over-service of alcohol caused Matthew

to become intoxicated, which caused his fall.

Dussault asked the court on reconsideration to reinstate Matthew’s claims

against TKE if genuine issues of material fact exist as to TKE’s fault. Dussault

made it clear that the premise on which the court based its summary judgment

decision—that Dussault did not want to prosecute the claim against TKE—was

erroneous. Because genuine issues of material fact exist and Dussault no longer

sought to abandon Matthew’s claims against TKE, the trial court abused its

discretion in denying the motion for reconsideration.

We reverse the trial court’s order granting TKE’s motion for summary

judgment and remand for further proceedings.

WE CONCUR:

- 11 –