BRISBON v. BREM-AIR DISPOSAL, INC., 26849-3-II (Wash.App. 5-24-2002)

No. 26849-3-IIThe Court of Appeals of Washington, Division Two.
Filed: May 24, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of Kitsap County, No. 98-2-02695-4, Hon. Leonard W. Costello, December 8, 2000, Judgment or order under review.

Counsel for Appellant(s), J. M. Koch, Attorney At Law, 10049 Kitsap Mall Bl #201, P.O. Box 368, Silverdale, WA 98383-0368.

Counsel for Respondent(s), Pamela M. Andrews, Johnson Martens, 7400 Bnk of America Tower, 701 5th Ave., Seattle, WA 98104.

Kimberly S. Schultz, Johnson Martens, 701 5th Ave Ste 7400, Seattle, WA 98104.

HOUGHTON, J.

Christina and David Brisbon appeal from a trial court order striking Christina Brisbon’s declaration and dismissing their negligence claims against Brem-Air Disposal, Inc. We reverse and remand for further proceedings.

FACTS
On October 23, 1995, Christina Brisbon (Brisbon) sustained a head injury while putting trash in a dumpster as part of her job at a Barnes Noble store in Silverdale. Brem-Air provided the dumpster and garbage collection service. A three-sided six-foot-tall masonry wall enclosed the dumpster. Barnes Noble employees customarily used a two-to three-foot long piece of wood to prop open the dumpster’s lid. A prop mechanism designed to hold the lid of the dumpster open was inaccessible because of the rear wall. The top of the dumpster was at Brisbon’s shoulder height. On the day of the accident, Brisbon opened the dumpster’s lid and propped it open with the piece of wood kept next to it. She swung a heavy garbage bag above her head and into the dumpster. Brisbon’s memory of what happened next is unclear, but she alleges that she sustained head injuries. Brisbon and her husband filed a lawsuit against three dumpster manufacturers and Brem-Air. Discovery ensued.[1] During her deposition, Brisbon testified that “[t]he next thing I remember was seeing everything. It’s like I heard it, but didn’t feel it. It’s like I heard the thump, and then when I kind of got my head out of it, I remember seeing flashes of stars going round and round.’ Clerk’s Papers (CP) at 193. She testified that she did not remember what happened next. She testified that she knew her face had been hit by something, probably the wooden stick. Brisbon also testified during her deposition that she believed that the stick came down and hit her in the face before the dumpster’s lid hit her head. She testified that she could not remember if she was hit twice. She testified that she knew the wooden stick hit her because she cleaned wood slivers out of her face when she got home. Upon further questioning, Brisbon testified that she `had to lift up [the dumpster lid] to get out of it.” CP at 195. But later when asked directly if she had to lift the dumpster lid off her head, she replied, “I don’t think so.” CP at 197. Brisbon testified that she dropped to one knee and saw stars, although she did not believe she lost consciousness. Brisbon had difficulty completing her deposition because she continued to suffer from chronic headaches and short-term memory loss since the accident. Brem-Air moved for summary judgment. In response, and to support the theory that Brem-Air’s negligence caused Brisbon’s injuries, Brisbon’s attorney submitted a declaration. Counsel attached Brisbon’s medical records; the declaration of Gary Passmore, a manager at Brem-Air; and portions of Brisbon’s deposition transcript. Brisbon’s attorney also attached Brisbon’s declaration to his own. In it, Brisbon stated that she filed the declaration because she “wanted the court to see what I thought happened to me as a consequence of the incident and what I was doing at the time.” CP at 234. Brisbon attached photographs of herself lifting a garbage bag into a dumpster that was “substantially like the one that was involved in the incident . . . .” CP at 234. She also attached pictures of herself measuring the masonry dumpster enclosure behind the bookstore, but with a smaller dumpster in place. On the same day that Brisbon’s attorney filed his declaration, he moved to continue discovery. In support of the motion, he declared that further discovery would include “whether the height of the dumpster in question in the back would make it foreseeable that the steel lid prop would not be accessible to foreseeable users,” and facts regarding whether the manufacturer knew this. CP at 248-49.

In addition to moving for summary judgment, Brem-Air moved to strike Brisbon’s declaration. Brem-Air argued that Brisbon could not establish how her injuries occurred.

The trial court granted Brisbon’s motion to continue the argument on summary judgment for 30 days. After that time elapsed, Brisbon asked for more time for discovery and filed the declaration of Dr. Daniel Johnson, an ergonomist. Dr. Johnson’s declaration was based on photographs of the dumpster with a “propping rod” located at the back. CP at 278. He stated that “[a]ssuming that someone had ready access to the side of the dumpster, [the propping] rod could be easily used for the purpose of supporting the lid.” CP at 278. Dr. Johnson further stated that “the prop rod was never utilized because of its inaccessibility . . . .” CP at 278. He testified that this was not nearly so safe within the enclosure and that Brisbon probably dislodged the stick when she swung the bag into the dumpster.[2] The trial court considered Dr. Johnson’s declaration, but it granted Brem-Air’s motion to strike Brisbon’s declaration. The trial court then determined that there were no genuine issues of material fact and granted Brem-Air’s motion for summary judgment. Brisbon appeals.

ANALYSIS
The Brisbons contend that the trial court erred when it granted Brem-Air’s motions to strike and its motion for summary judgment of dismissal. Before determining whether the trial court properly granted summary judgment, we must decide what evidence was properly before the trial court when it made its ruling. Therefore, we turn to the question whether the trial court erred in striking Brisbon’s declaration. Brisbon’s Declaration The Brisbons argue that the trial court improperly applied the Marshall rule in striking Brisbon’s declaration. Marshall v. ACS, Inc., 56 Wn. App. 181, 782 P.2d 1107 (1989).

The Marshall Rule
The Marshall rule provides that (1) when a party has given clear and unambiguous deposition testimony that indicates there is no genuine issue of material fact, (2) that party may not create an issue of material fact with a later self-serving affidavit or declaration that contradicts, without explanation, the previous testimony. Marshall, 56 Wn. App. at 185.

The later declaration must be in flat contradiction to the previous testimony. Berry v. Crown Cork Seal Co., 103 Wn. App. 312, 322, 14 P.3d 789 (2000), review denied, 43 Wn.2d 1015 (2001); McCormick v. Lake Wash. Sch. Dist., 99 Wn. App. 107, 111, 992 P.2d 511 (1999) (citing Safeco Ins. v. McGrath, 63 Wn. App. 170, 175, 817 P.2d 861
(1991), review denied, 118 Wn.2d 1010 (1992)). The declaration may be arguably inconsistent with the previous testimony, but if it does not directly contradict the deposition testimony, the rule does not exclude the declaration. Duckworth v. Langland, 95 Wn. App. 1, 7-8, 988 P.2d 967 (1998), review denied, 138 Wn.2d 1002 (1999).

The Marshall rule’s two elements are not met here. First, Brisbon’s testimony is unclear and ambiguous. Brisbon testified via deposition that she believed that the stick came down and hit her in the face, and then the lid of the dumpster hit her head. Later, she testified that she could not remember if she was hit twice. Brisbon also testified that she “had to lift up [the dumpster lid] to get out of it.” CP at 195. Later, however, when asked directly if she had to lift the dumpster lid off her head, she replied, “I don’t think so.” CP at 197. Although her testimony is inconsistent, it does not clearly remove an issue of material fact. Second, Brisbon’s declaration does not flatly contradict her deposition testimony. Although Brisbon’s declaration statement that `the lid of the dumpster fell on upon my head’ may be inconsistent with some of her prior testimony, it does not directly contradict other testimony that the lid did fall on her. CP at 234; Duckworth, 95 Wn. App. at 7-8. Here, Brisbon’s deposition testimony was unclear and incomplete. In her later declaration, she attempted to clearly articulate the dumpster’s placement and configuration, not to contradict her earlier testimony. The trial court improperly applied the Marshall rule in striking Brisbon’s declaration. Nevertheless, portions of Brisbon’s declaration should be stricken under CR 56(e). CR 56(e) CR 56(e) provides that “[s]upporting and opposing affidavits [to a summary judgment motion] shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence . . . .” The rule further requires that “[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial.” CR 56(e). Parts of Brisbon’s declaration violate this rule and parts do not. Those parts that provide what Brisbon thought or believed happened should be stricken.[3] Those parts that are based on Brisbon’s personal knowledge do not conflict with CR 56(e) and should not be stricken. Thus, Brisbon’s explanation of the accompanying photographs and the photographs themselves remain part of the record before us on review.

Summary Judgment Standard of Review
The Brisbons further contend that the trial court erred in granting summary judgment and dismissing her claims.

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998); Attwood v. Albertson’s Food Ctrs., Inc., 92 Wn. App. 326, 330, 966 P.2d 351 (1998). We affirm summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Crowe, 134 Wn.2d at 514 Attwood, 92 Wn. App. at 330. We consider all facts, and all reasonable inferences from those facts, in the light most favorable to the nonmoving party. Crowe, 134 Wn.2d at 514; Attwood, 92 Wn. App. at 330. Summary judgment should be affirmed only if we determine that reasonable persons could only reach one conclusion from the all the evidence because there is no issue of material fact. Attwood, 92 Wn. App. at 330.

The moving party bears the burden of showing the absence of an issue of material fact. Bruns v. PACCAR, Inc., 77 Wn. App. 201, 208, 890 P.2d 469, review denied, 126 Wn.2d 1025 (1995). A fact is material if it affects the outcome of the litigation. Ruff v. The County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). When the moving party is a defendant, it may meet this burden by pointing out to the court that there is a lack of evidence to support the nonmoving party’s case. Howell v. Spokane Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d 1056
(1991). If the defendant meets this initial burden, the burden shifts to the plaintiff to make a prima facie showing of all essential elements Bruns, 77 Wn. App. at 208. A plaintiff establishes a prima facie case when he or she produces[4] evidence that supports a reasonable inference of the existence of each element. Pelton v. Tri-State Mem. Hosp., Inc., 66 Wn. App. 350, 354, 831 P.2d 1147 (1992). See also Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 12-13, 721 P.2d 1
(1986) (citing CR 56(e)). In a negligence claim, the plaintiff has the burden of establishing facts that show that the defendant had a duty to the plaintiff, the defendant breached that duty, and the breach was the cause in fact and proximate cause of the plaintiff’s injury. Ruff, 125 Wn.2d at 703-04; Watters v. Aberdeen Recreation, Inc., 75 Wn. App. 710, 714, 879 P.2d 337 (1994). Duty and Breach First, duty is not at issue because, for purposes of summary judgment, Brem-Air admitted that it owed a duty to Brisbon to act with reasonable care in providing a dumpster to her employer, Barnes Noble. Second, a jury could reasonably infer that Brem-Air breached its duty because Brisbon presented evidence of an unsafe condition. See Watters, 75 Wn. App. at 714
(holding that “[t]he first step toward proving breach is to produce evidence from which it can be inferred that an unsafe condition existed”). Here, Brem-Air recognizes that the dumpster has a prop mechanism designed to hold the dumpster safely open, much like the prop for a car hood. Brisbon presented deposition testimony in which she stated that the prop mechanism was inaccessible to her and other employees because a masonry wall enclosed the dumpster on three sides. She testified that her supervisor told her to use a piece of wood to hold the dumpster lid open. Dr. Johnson, an ergonomist[5] hired by Brisbon, corroborated that the inaccessible prop mechanism created an unsafe condition. He filed a declaration after reviewing a photograph of a representative dumpster in the enclosure[6] and Brisbon’s testimony. He stated that “[a]ssuming that someone had ready access to the side of the dumpster, [the propping] rod could be easily used for the purpose of supporting the lid.” CP at 278. Dr. Johnson testified further, however, that the propping rod was inaccessible because of the three-sided masonry enclosure and, therefore, was not safe. From this, a reasonable person could conclude that an unsafe condition existed.

The next step in establishing that the defendant breached the duty is to show “that the [unsafe] condition was . . . within the actual or constructive knowledge of the defendant.” Watters, 75 Wn. App. at 714. Brisbon met this burden by first producing evidence that Brem-Air provided the dumpster to Barnes Noble. Brisbon then presented evidence that Brem-Air was at least constructively aware that the prop mechanism was impossible to access. This evidence is sufficient to take the question of whether Brem-Air breached its duty to Brisbon to a jury. A reasonable person could conclude that Brem-Air was constructively aware that the prop mechanism on the dumpster it provided to Barnes Noble in Silverdale was inaccessible and that this created an unsafe condition.

Causation
The issue of proximate cause is generally a question of fact for the jury and not subject to determination at summary judgment as a matter of law. Ruff, 125 Wn.2d at 703-04; Attwood, 92 Wn. App. at 330. A proximate cause is a cause that is natural and continuous, unbroken by an independent cause, and one that produces the plaintiff’s injury. Attwood, 92 Wn. App. at 330. The cause must be one without which the injury would not have occurred (also known as cause-in-fact). Attwood, 92 Wn. App. at 330; see also Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985). Causation may only be determined as a matter of law on summary judgment if the appellate court determines that reasonable minds could reach only one conclusion because the facts, and inferences from them, are plain and not subject to reasonable doubt or a difference of opinion. Ruff, 125 Wn.2d at 704; Attwood, 92 Wn. App. at 330. To meet this burden in the present case, Brisbon needed to produce evidence sufficient to allow a jury reasonably to infer causation from the preponderance of the evidence. See Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992). Brem-Air argues correctly that Brisbon cannot meet her burden of production based only on speculation. Although reasonable inferences cannot rest on conjecture, the party who has the burden of production does not have to provide proof to an absolute certainty. Gardner v. Seymour, 27 Wn.2d 802, 808, 180 P.2d 564
(1947).

The party with the burden of production meets that burden by submitting evidence that provides a logical basis for making the inferences necessary to support causation. Gardner, 27 Wn.2d at 808-09. To support her theory that the inaccessible prop for the dumpster lid caused her injuries, Brisbon produced facts from which a reasonable inference can be drawn that the precariously propped lid injured her. She primarily presented her deposition testimony, in which she stated that the piece of wood came down and hit her in the face, and then the lid of the dumpster hit her head. Brisbon also testified that she “did have the dumpster that [she] had to lift up to get out of it.” CP at 195. To corroborate this, Brisbon presented her medical reports, which indicate she suffered injuries consistent with being hit with the piece of wood near her left eye and hit on the top of her head by the dumpster lid. Nevertheless, Brem-Air argues that because Brisbon does not remember exactly how the piece of wood or lid fell and that she sometimes contradicted herself in her deposition, she does not provide sufficient factual evidence for a jury to reasonably conclude that Brem-Air’s negligence was the proximate cause of her injuries. Citing Marshall v. Bally’s Pacwest, Inc., 94 Wn. App. 372, 378-79, 972 P.2d 475 (1999),[7] Brem-Air asserts that when a plaintiff has no memory of how an accident occurred, his or her case must be dismissed on summary judgment for lack of causation.

In Bally’s, the plaintiff had a complete memory lapse that lasted for two weeks due to her head injuries from falling off a treadmill at a Bally’s fitness club. Bally’s, 94 Wn. App. at 379. The plaintiff unequivocally testified that she completely lacked memory of the incident. The court in Bally’s applied the Marshall rule, holding that because the plaintiff stated clearly that she did not remember anything, she had negated the existence of an issue of material fact. She could not later create an issue of material fact with an affidavit of her memory of the incident because it would flatly contradict her prior testimony Bally’s 94 Wn. App. at 379 (quoting Duckworth, 95 Wn. App. at 7-8
(quoting Marshall, 56 Wn. App. at 185)). As discussed, however, the Marshall rule is inapplicable here. Unlike the plaintiff in Bally’s, Brisbon remembers significant parts of the injurious event. Her testimony clearly reflects that she was struck in the head as she swung garbage into the dumpster that was propped open with the piece of wood. Although Brisbon is sometimes inconsistent about what happened after her head was struck, she remembers using the makeshift wooden prop. She testified clearly that her injury occurred just as she slung the garbage bag into the dumpster. Her memory becomes unclear only at the moment she raised the garbage bag and something struck her head:

I remember slinging a light blue, plastic garbage bag into the dumpster. The dumpster was fairly empty. I remember throwing it in, and then I’m not — I’m not really sure. The next thing I remember was seeing everything. . . . It’s like I heard the thump, and then when I kind of got my head out of it, I remember seeing flashes of stars going round and round. . . I do know that my face had been hit by something, probably the wood . . . but I’m not really sure about what happened after that.

CP at 193.

These facts distinguish this case from Bally’s because a rational person could reasonably infer that Brem-Air’s unsafe dumpster caused Brisbon’s head injury. Brem-Air argues that a jury could infer other causes of Brisbon’s injury. For example, Brem-Air argues that it is equally likely that Brisbon was hit by an object other than the wooden prop or the dumpster lid, or that Brisbon merely lost her balance and hit her head on the side of the dumpster.8 It is true that a jury cannot be allowed to speculate between several equally likely causes. But if there is substantial evidence of negligence, a defendant cannot escape trial by speculating that something other than its own negligence was the cause of the plaintiff’s injuries. Brem-Air correctly cites Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 199, 831 P.2d 744
(1992), to argue that the mere occurrence of an accident is not itself sufficient evidence of negligence, or evidence that a dangerous condition existed. The present case, however, is distinguishable from Las. In that case, Las was injured in a department store when some pans fell on her foot. Las, 66 Wn. App. at 197. The court held that Las only produced her belief that the pans must have been unbalanced or precariously stacked Las, 66 Wn. App. at 198. Las presented no evidence of the department store’s practice of stacking pans or any expert testimony about how pans should be stacked. Las, 66, Wn. App. at 198-99. The court held that absent facts supporting a theory of res ipsa loquitur, an accident itself is not sufficient proof of unreasonable risk Las, 66, Wn. App. at 199. Here, Brisbon has provided more than the mere fact of her accident. She testified that the piece of wood was usually used to prop open the dumpster’s lid, and she also produced an expert who could testify that the dumpster was unsafe.

Because Brisbon provided facts from which a jury could reasonably infer that Brem-Air’s breach of its duty to Brisbon caused her head injuries, the trial court erred in dismissing the Brisbons’ claims.

Reversed and remanded for further proceedings.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

MORGAN, P.J. and SEINFELD, J., concur.