JOHNSON v. MERNAUGH, 146 Wn. App. 1060 (2008)

ALISA A. JOHNSON ET AL., Appellants, v. ANTHONY MERNAUGH ET AL., Respondents.

No. 60934-3-I.The Court of Appeals of Washington, Division One.
September 22, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for King County, No. 06-2-37173-9, Charles W. Mertel, J., entered November 13, 2007.

UNPUBLISHED OPINION

PER CURIAM.

Alisa Johnson suffered serious injuries when a truck carrying a teenage driver and four teenage passengers ran a stop sign and struck her car. She sued everyone in the truck, alleging in part that the passengers breached statutory and common law duties of care. The superior court dismissed all claims against the passengers on summary judgment. Johnson appeals the judgment dismissing her claims against one of those passengers. We affirm.

On September 27, 2006, a truck driven by Anthony Mernaugh ran a stop sign on the passenger side of the truck and “T-boned” a car driven by Alisa Johnson.

In August, 2007, Johnson, her husband, and her minor child sued Mernaugh, his parents, and his four teenage passengers for physical injuries and other damages resulting from the collision. The complaint alleged in part that the passengers breached statutory and common law duties and that their conduct proximately caused the collision. The passengers moved for summary judgment, arguing that the Johnsons had failed to demonstrate duty, breach, and proximate cause.

The evidence before the trial court included the depositions and/or declarations of all the occupants of Mernaugh’s truck. Mernaugh testified that he had been driving one or two months at the time of the accident and was aware of the law prohibiting him from carrying passengers, other than family members, under the age of twenty. He stated that nothing obstructed his view of the stop sign or distracted him prior to the accident. He remembered music playing in the car but did not recall any conversations, wrestling, or horseplay among the passengers, and did not remember anyone warning him about the stop sign.

Joshua Rubideaux and Griffin Fowler testified that they were seated in the back of the truck. Both said nothing prevented viewing the stop sign from the vehicle. Fowler stated that there was no reason a person would not see the sign, that everyone else in the truck saw it, and that they all told Mernaugh to “stop.” He also testified that nothing occurred inside the truck that would have distracted Mernaugh. He estimated the truck was traveling 40 miles per hour just before the accident.

Danielle Olmstead and Margeaux Green testified they were sitting too high in the front passenger seat. Green, who is 4 feet ten inches tall and weighs 93 pounds, was sitting on Olmstead’s lap. Her head was next to Olmstead’s rather than in front of it, but she was “pretty close” to the dashboard. Green testified that the truck was going nearly 50 mph in a 25 mph zone immediately before the accident. About 50 feet before the stop sign, Green and the other passengers began yelling “stop.” Olmstead testified that she and Green both saw the stop sign and that nothing obscured Mernaugh’s view of it. Olmstead did not recall any conversations in the truck prior to the accident but said she and Green “probably talked.”

Firefighter Scott Thomas saw Mernaugh’s truck several seconds before the accident. Mernaugh appeared to be talking with several passengers. Thomas said the driver, who was steering with his left arm draped over the steering wheel, “appeared very casual.” He estimated Mernaugh’s speed at 40 to 45 miles per hour.

Detective David Wells of the King County Sherriff’s Office investigated the accident and submitted a declaration. He stated that based on his experience and prior investigations, “teenage passengers create a distraction to the inexperienced driver” and that “[t]his distraction exists even if the teenage passengers are simply riding in the vehicle. . . .” This is particularly true when there are “one or more conversations ongoing amongst the teenage passengers or if the vehicle is filled to (or, especially, beyond) capacity by the teenage passengers.” Such distractions make teenage drivers “less likely to notice and react to traffic conditions including relevant signage (such as a stop sign).” Detective Wells believed that Green and Olmstead obstructed Mernaugh’s view “out the passenger side window,” and that “it is more likely than not that the distracting presence of the four teenage passengers . . . contributed to [Mernaugh’s] failure to stop at the stop sign and the collision. . . .”

The court granted the passengers’ motions for summary judgment. The Johnsons subsequently settled with all defendants except Danielle Olmstead, who was seated in the truck’s front passenger seat.

The Johnsons appeal the dismissal of the claims against Olmstead.

We review a summary judgment order de novo, engaging in the same inquiry as the trial court and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party.[1] Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.[2]

The Johnsons contend summary judgment was improper because Olmstead breached duties of care under RCW 46.61.615(2), RCW 46.20.075, and various tort principles, and those breaches proximately caused the collision. For the reasons set forth below, we conclude that summary judgment was proper.

RCW 46.61.615(2) provides that “[n]o passenger in a vehicle shall ride in such position as to interfere with the driver’s view ahead or to the sides, or to interfere with his control over the driving mechanism of the vehicle.” Assuming without deciding that Olmstead breached a duty under this statute, the evidence failed to establish a genuine issue of material fact as to whether that breach was a cause in fact of the accident.

Cause in fact, or “but for” causation, refers to the “physical connection between an act and an injury.”[3] Although a party need not prove causation with absolute certainty to avoid summary judgment, the evidence must be sufficient to support a reasonable inference that the defendant’s negligence “more probably than not caused the accident.”[4] A party resisting summary judgment cannot satisfy this burden by relying merely on conclusory allegations, speculative statements or argumentative assertions, but rather “must set forth specific facts” demonstrating a genuine issue of fact.[5] If there is “nothing more tangible to proceed upon than two or more conjectural theories under one or more of which a defendant would be liable and under one or more of which a plaintiff would not be entitled to recover, a jury will not be permitted to conjecture how the accident occurred.”[6]

Here, the evidence did not support a reasonable inference that, more likely than not, Olmstead and Green’s seating arrangement contributed to the accident. Mernaugh testified that his view through the windshield was not obstructed. The passengers corroborated that testimony. Passengers in both the front and back of the truck testified they had no trouble seeing the stop sign before the truck reached it. While Mernaugh’s view through the passenger window was at least partially obstructed by Green and Olmstead, that would have been the case even if there had been only one front seat passenger. In any case, there was no competent evidence supporting an inference that a clearer view out that window could have prevented or lessened the severity of the accident.[7]

Contrary to the Johnsons’ assertions, Detective Wells’ declaration does not create an issue of fact. Although he correctly noted that Olmstead and Green partially obstructed Mernaugh’s view through the passenger window, Wells did not conclude that the obstruction contributed to the accident and, in any event, did not offer any factual basis to infer that a clearer view out that window could have prevented or lessened the severity of the collision. His declaration is thus insufficient to create an issue of fact.[8]

The Johnsons next cite RCW 46.20.075(2) and certain tort principles as a basis for Olmstead’s liability. That statute provides that the holder of an intermediate driver’s license may not carry passengers under the age of twenty who are not members of the holder’s immediate family until the holder has been driving for six months. RCW 46.20.075(2). The Johnsons concede that this statute imposes no duty on underage passengers to refrain from riding with drivers during the six-month period. They argue, however, that this court should imply or create such a duty based on the statute’s purpose and tort concepts relating to the creation and foreseeability of risks of harm.[9] But even if we were to create such a duty, the evidence presented below was insufficient for this theory to withstand summary judgment.

Under the duty proposed by the Johnsons, an underage passenger would be liable only if he or she knew or should have known that the driver had not been driving for the requisite six months and was therefore prohibited from driving with underage passengers.[10] Here, there is insufficient evidence that Olmstead knew or should have known of Mernaugh’s probationary status. It is undisputed that, unlike passengers Rubideaux and Fowler, Olmstead barely knew Mernaugh and did not attend his high school. The only evidence bearing on her knowledge of Mernaugh’s driving status is her testimony that she asked him how long he had been driving and he said “long enough.” A jury could not reasonably infer from this evidence that Olmstead knew or should have known of Mernaugh’s driving status.[11]

The Johnsons also contend Olmstead had a common law duty to refrain from distracting Mernaugh and that she breached that duty by allowing Green to sit on her lap, talking to Green, and talking to Mernaugh. But again, even assuming Olmstead had such a duty, there is no genuine issue of material fact requiring a trial. Although Scott Thomas testified that Mernaugh “appeared” to be conversing with several people in the car, he did not identify who Mernaugh appeared to be talking to. And while Olmstead said she and Green “probably” talked, there is no evidence concerning the nature or timing of their conversation. Mernaugh denied being distracted in any way and did not recall any conversations. On this evidence, a jury could not reasonably infer, without speculating, that Olmstead breached a duty to refrain from distracting Mernaugh, or that the alleged breach was a cause in fact of the accident. The same is true of Mernaugh’s seating arrangement with Green. A jury could not infer, without speculating, that Mernaugh was distracted by that arrangement, or that the arrangement was a cause in fact of the accident.

To the extent the Johnsons contend Olmstead’s mere presence could violate a common law duty to not distract the driver, we reject that theory of liability as well. The Johnsons offer no authority, nor have we found any, supporting passenger liability to third parties in the absence of active negligence by the passenger. And as the Johnsons recognize, liability for mere presence in a car would amount to strict liability; therefore, passenger liability should, at a minimum, require knowledge that the passenger’s presence will create an unreasonable risk of harm. As noted above, the evidence was insufficient to demonstrate an issue of fact as to Olmstead’s knowledge of Mernaugh’s driving status. Nor is there any evidence that Mernaugh knew or should have known that her presence would cause Mernaugh to drive recklessly.

The trial court properly granted summary judgment.

Because this appeal does not meet the requirements of a frivolous appeal, we deny Olmstead’s request for attorney’s fees under RAP 18.9.

We affirm the summary judgment order.

[1] Hearst Communications, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005).
[2] CR 56(c); Hearst, 154 Wn.2d at 501.
[3] Ang v. Martin, 154 Wn.2d 477, 482, 114 P.3d 637
(2005) (quoting Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985)).
[4] Little v. Countrywood Homes, Inc., 132 Wn. App. 777, 782, 133 P.3d 944, review denied, 158 Wn.2d 1017
(2006).
[5] Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992) (citation omitted). Little v. Countrywood Homes, Inc., supra.
[6] Marshall v. Bally’s Pacwest, Inc., 94 Wn. App. 372, 379, 972 P.2d 475 (1999) (quoting Gardner v. Seymour, 27 Wn.2d 802, 809, 180 P.2d 564 (1947)).
[7] Given Mernaugh’s speed, it seems highly unlikely that the accident could have been avoided at the point when the stop sign and/or the Johnson vehicle became visible through the passenger window.
[8] See e.g., Griswold v. Kilpatrick, 107 Wn. App. 757, 762, 27 P.3d 246 (2001) (expert’s testimony that, based on his experience, the case would have settled for a greater amount absent the attorney’s breach of his duty of care, was “speculative and conclusory” and therefore insufficient “to create an issue of material fact.”); see also Melville v. State, 115 Wn.2d 34, 41, 793 P.2d 952 (1990) (“An opinion of an expert which is simply a conclusion or is based on an assumption is not evidence which will take a case to the jury.”).
[9] The duty proposed by the Johnsons would support liability based on the mere presence of underage passengers who knowingly ride with a driver during the six month period, so long as their presence was a cause in fact of the accident. In this case, the Johnsons contend that the passengers’ mere presence could have contributed to the accident by, among other things, giving Mernaugh a reason to show off and drive recklessly.
[10] The Johnsons contend liability could be imposed if the passengers had actual or constructive knowledge of, acted in concert with, or aided and abetted, the driver’s violation of the statute. All three theories require that the passengers either knew or should have known of the driver’s statutory violation.
[11] Olmstead’s admission that she ignores the six month rule when she drives if the passenger’s parents give the passenger permission to ride with her, and her statement that the rule is not a “big deal” have no bearing on whether she knew or should have known of Mernaugh’s driving status.

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