No. 36384-4-II.The Court of Appeals of Washington, Division Two.
May 20, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-06719-1, John R. Hickman, J., entered May 11, 2007.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Quinn- Brintnall, J.
PENOYAR, J.
Joseph Curtin’s motorcycle collided with a car pulling out of a driveway. Curtin sued King County, arguing that it had breached its duty to him to construct and maintain roadways reasonably safe for ordinary use. Specifically, Curtin argued that a rise in the roadway prevented him from seeing the car pulling out in front of him, denying him enough time to stop his motorcycle. King County prevailed on a motion for summary judgment and Curtin appeals. We affirm.
FACTS
In the early morning hours of May 14, 2004, Joseph Curtin rode his motorcycle northbound on 138th Avenue Southeast (“138th”), a two lane road. The posted speed limit was 25 mph, though Curtin admitted that he was “probably speeding a little bit.” Clerk’s Papers (CP) at 113. As he rode, he noticed a car pulling out into the northbound lane ahead of him. There was a rise in the roadway, and Curtin remembers that he was not “quite to the top [of the hill] when [he saw] her pulling out” of a driveway. CP at 113. Upon cresting the hill, Curtin observed Jinhua Li making a wide right turn out of the driveway in front of him. In an attempt to avoid her, Curtin pulled his motorcycle to the middle of the roadway, into the oncoming lane of traffic. Despite this attempt, Curtin could not stop his motorcycle in time to avoid hitting the car. Curtin’s motorcycle and Li’s car collided in the middle of the roadway. Curtin sustained serious injuries from the collision, which were treated at Harborview Medical Center. Though Curtin admitted three days later that he could see the car enter onto the roadway before cresting the hill on 138th, the other driver involved, Jinhua Li, stated that she did not see Curtin until he hit her car.
Curtin sued King County on April 7, 2005 for negligence.[1]
Specifically, Curtin alleged that the County owed him, as a citizen, a duty to construct and maintain roadways in a reasonably prudent fashion in “accordance with appropriate standards.” CP at 2. Curtin claimed that the County breached this duty by constructing/maintaining a hill in the roadway on 138th that allegedly obstructed his, and Li’s, view on the morning of the accident. CP at 3.
February 3, 2006, the County moved for summary judgment alleging that it had breached no duty and that summary judgment was required as a matter of law. On May 11, 2006, after reviewing numerous declarations and hearing oral arguments, the trial court entered an order granting summary judgment to the County. Subsequently, Curtin filed this appeal.
ANALYSIS
Summary Judgment
A. Standard of Review
We review summary judgment orders de novo and perform the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). We examine the pleadings, affidavits, and depositions before the trial court and “take the position of the trial court and assume facts [and reasonable inferences] most favorable to the nonmoving party.” Ruff v. King County, 125 Wn.2d 697, 703, 887 P.2d 886 (1995) (citing Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985)). Curtin is the nonmoving party. Thus, we view all facts and reasonable inferences from them in the light most favorable to him. Ruff, 125 Wn.2d at 703. Summary judgment is proper if the record before the trial court establishes “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c).
B. Duty
We first examine the County’s duty, if any. We hold Governmental entities are held to the same negligence standards as private individuals. Keller v. City of Spokane, 146 Wn.2d 237, 242-43, 44 P.3d 845
(2002). Liability for negligence does not require a direct statutory violation, though a statute, regulation, or other positive enactment may help define the scope of a duty or the standard of care. Cf. Bauman v. Crawford, 104 Wn.2d 241, 244-45, 704 P.2d 1181 (1985).
King County acknowledges that it has a duty to provide reasonably safe roads and this duty includes the duty to safeguard against an inherently dangerous or misleading condition. A county’s duty to eliminate an inherently dangerous or misleading condition is part of the overarching duty to provide reasonably safe roads for the people of this state to drive on. Keller, 146 Wn.2d at 249. The inherently dangerous formulation recognizes that “[a]s the danger becomes greater, the actor is required to exercise caution commensurate with it.” Ulve v. City of Raymond, 51 Wn.2d 241, 246, 317 P.2d 908 (1957). Simply stated, the existence of an unusual hazard may require a county to exercise greater care than would be sufficient in other settings. Ulve, 51 Wn.2d at 246.
Whether the roadway was reasonably safe for ordinary travel is, generally, a material question of fact. Questions of fact may be determined as a matter of law when reasonable minds could reach but one conclusion. Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005). If reasonable minds can differ, the question of fact is one for the trier of fact, and summary judgment is not appropriate. As noted in prior Washington Supreme Court cases, issues of negligence and proximate cause are generally not susceptible to summary judgment. Owen, 153 Wn.2d at 788.
Similarly, whether a condition is inherently dangerous or misleading, and whether the government’s attempts to take corrective action to cure the condition are adequate, generally are questions of fact. Owen, 153 Wn.2d at 788; Livingston v. City of Everett, 50 Wn. App. 655, 658, 751 P.2d 1199 (1988).
C. Dispute Regarding Dangerous Condition
Though the County recognizes it owes a duty to motorists, it disputes that 138th was inherently dangerous. Further, the County asserts that if a dangerous condition existed, it was created by the unapproved driveway from which Li emerged and not the County road. Since the driveway was built without the County’s consent or permit, the County asserts that any dangerous condition posed by the driveway was the sole responsibility of those who built it.[2] Curtin argues that the rise in the roadway itself constitutes an inherently dangerous condition. Additionally, Curtin argues that because the County failed to take adequate remedial measures to correct the dangerous condition posed by the driveway when they were notified of its existence in 2001, that the County should be held responsible for the accident.
Curtin and the County dispute the sight lines on 138th and safe stopping distances. Curtin asserts that the inadequate sight lines due to the crest of the hill on 138th created an inherently dangerous or misleading condition.[3] To prove this, he offers the expert opinion of Edward Stevens, civil engineer, who asserts that the road, as designed, did not provide adequate stopping sight distance for cars traveling northbound given the 25 mile per hour (mph) posted speed. Instead, Stevens asserts that a vehicle would need to slow to 18.4 mph when cresting the hill to have enough time/space to safely stop if an obstruction was in the roadway at the point of the driveway. The County disputes these assertions with its own expert testimony, stating that there was adequate stopping distance on the morning of the accident.
Entering sight distance (ESD) is defined as the required sight distance that a driver must be able to see, from a stopped position at a driveway, to safely enter the highway for any posted road speed. Both experts agree that the King County Road Standards do not specify any particular ESD for Urban Local Access roads, such as 138th. Stevens continues his analysis noting that, though ESD is not required on a local access road, ample stopping sight distance (SSD) is. Stevens defines SSD as “that length of highway that the operator of a vehicle can see and safely stop when an object comes into view.” CP at 40. Paulette Norman, King County Road Engineer and the County’s expert witness, agrees with this definition, further adding that SSD is a road design element for the “traveling corridor of the roadway, based upon speed and distance from where a driver, driving in the roadway corridor, can see a 6 inch high object in the road.” CP at 135. Stevens uses the concept of SSD to determine that there was not adequate stopping distance on the morning of the accident and to show that the rise in the roadway at 138th constitutes a dangerous condition.
Norman does not dispute the existence of the concepts Stevens used, but she argues that Stevens conflates them. Norman states in her affidavit that “stopping sight distance is not a design element for connecting driveways to roadway corridors. Therefore, [] Stevens’ use of [SSD] as a design element to make a case for the impropriety of where the Stuth driveway is connected to 138th Avenue S.E. is incorrect, improper and inapplicable.” CP at 135. Even if Norman is incorrect and SSD is an appropriate factor for evaluating driveway placement or the safety of the road grade itself, Stevens ignores the fact that Li’s vehicle is much taller than the 6-inch factor used for setting the SSD. In other words, the stopping distance that was available for Curtin was obviously greater than the SSD because Li’s car was taller than 6 inches. Trigonometry and Stevens’ expertise might allow an analysis of Curtin’s actual adequate stopping distance, but lacking these calculations there is nothing in the record to indicate that Curtin would not have been able to see Li in time to avoid a collision at any particular speed. Speculation is not sufficient to resist summary judgment. Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). In sum, Stevens’ use of SSD is improper in this case because it does not tend to prove Curtin lacked time or distance to stop.
Regardless of the proper terminology or design elements, it appears from Officer Sybrand Hiemstra’s interview with Curtin and his mock-up of the accident that Curtin saw Li the morning of the accident with enough distance to safely stop his motorcycle. Curtin indicated that he saw Li’s car before the hill obscured his view, and given that information, Hiemstra calculated his distance at that point (from the driveway) to be 144.5 feet. At that distance, Hiemstra calculates that Curtin could have safely stopped his motorcycle before impact had he been traveling the 25 mph posted speed (even up to 35 mph).
Curtin provides no credible evidence, or any evidence, from which a reasonable inference can be drawn that he did not have time to stop on the morning of the accident. His expert witness’ evaluation of the roadway is interesting, but it uses the standards he advances improperly and does not reflect what actually happened. Without evidence based on something more than mere speculation, the trial court’s grant of summary judgment in favor of King County was appropriate. We affirm the trial court.[4]
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.
VAN DEREN, A.C.J. and QUINN-BRINTNALL, J., concur.