No. 26495-1-II.The Court of Appeals of Washington, Division Two.
Filed: April 19, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Thurston County, No. 97-2-01535-6, Hon. Wm. T. McPhee, September 22, 2000, Judgment or order under review.
Counsel for Appellant(s), Garth L. Jones, Stritmatter Kessler Whelan Withey Coluccio, 413 8th St, Hoquiam, WA 98550.
Keith L. Kessler, Stritmatter Kessler Whelan Withey Coluccio, 413 8th St, Hoquiam, WA 98550.
Ray W. Kahler, Stritmatter Kessler Whelan Withey Coluccio, 413 8th St, Hoquiam, WA 98550.
Counsel for Respondent(s), David T. Wendel, Asst. Atty. General, P.O. Box 40126, Olympia, WA 98504-0126.
ELAINE M. HOUGHTON, J.
Marjorie Upham[*] appeals from the trial court’s dismissal of her negligence claims against the State. She argues that the trial court inappropriately decided factual issues on summary judgment and erred in excluding evidence. We affirm.
FACTS
On the morning of January 23, 1997, Upham drove eastbound on State Route (SR) 101 between Port Angeles and Sequim. At approximately 6:45 a.m., she encountered ice on the roadway near milepost 256, an area known as Siebert Creek. She lost control of her car, ran up the embankment, rolled over, and crashed. She sustained serious injuries and sued the State, alleging its negligence in failing to eliminate the icy and hazardous road condition. The State moved for partial summary judgment, seeking to dismiss three of Upham’s four allegations of negligence. In support of its motion, the State offered an excerpt from the deposition of Jolly Bittick, a Department of Transportation (DOT) employee on duty the morning of the accident. Bittick testified that the DOT had its road maintenance crew patrolling state highways to look for unsafe road conditions, that he had driven through the accident location earlier and did not see any ice on the roadway, and that the temperature that morning did not drop below 35 degrees on the truck’s thermometer.
The State also offered excerpts from depositions of Upham’s experts, including, Clifford Maff, Ph.D. Dr. Maff testified that he could not be sure when or where ice would have formed, but that ice could have formed one-half hour before the accident occurred. Dr. Maff also opined that, on a more probable than not basis, some icing would occur in the upper Olympic Peninsula region. Upham opposed the State’s motion and offered excerpts of lay and expert witness depositions and declarations, the DOT Maintenance Manual 1986,[1] and the Clallam County Fire District #3 incident report.[2] According to witnesses at the accident scene, the road was icy. Michael Evans, the DOT supervisor responsible for the upper Olympic Peninsula region, also declared that: the weather forecast for the Olympic Peninsula (from Port Angeles to Port Townsend, including Sequim) for the period from 6 p.m. January 22 to 6 a.m. January 23 showed a probability of ice as 1 (on a 1 to 10 scale), with zero as no concern, 1 as very little concern, and 10 as very high concern; there was `a very small concern’ a freeze could occur between 4:30 — 7:30 a.m. (the coldest part of the day); DOT rarely experienced problems at Siebert Creek; and on the day of the accident, Siebert Creek was last on a prioritized list of potential problem areas.
The parties also filed motions disputing the admissibility of nearby Clallam County’s sanding efforts on county roads during the morning of the accident. The trial court ruled that the evidence supporting Upham’s third contention that the State had notice (Clallam County’s sanding efforts that morning) was inadmissible. The trial court further indicated that the evidence was inadmissible for all three purposes that Upham sought to use it (standard of care,[3] presence of ice,[4] and constructive notice[5] ). The trial court also ruled that even if the evidence were admissible, taken alone or in combination with the evidence of the icy conditions, along with the weather forecast, it failed to establish the State’s duty to protect Upham.
The trial court granted the State’s motion to dismiss, noting that there was insufficient evidence to establish a duty.[6] The court determined that the State did not have notice of the icy conditions at the accident location or an opportunity to respond because the weather report forecast was for a minimal probability of ice throughout the entire region, and the first indication of ice on the road was when Upham and other witnesses encountered it.
At the hearing for presentment of the February 18, 2000 dismissal order, Upham proffered, and the trial court admitted, two additional declarations over the State’s objection. Kevin McManus, a former Grays Harbor County Road Department employee, stated that his duties included sanding roadways during winter months, and the general policy was to sand bridges, curves, low elevations, and shady areas when temperatures dropped below the mid-thirties as a preventive measure. Rod Carpenter, a former DOT employee, also stated that his duties included sanding roadways during winter months and that it was good policy to perform preventive sanding when temperatures were below the mid-thirties because bridges, shady spots, and lower elevations would freeze over at daybreak. In admitting the two declarations, the trial court noted that they did not change its previous summary judgment ruling.
Upham appeals.
ANALYSIS
Standard of Review On appeal from a grant of summary judgment, we employ the same analysis as the trial court. Manufactured Housing Communities v. State, 142 Wn.2d 347, 352-53, 13 P.3d 183 (2000); Hough v. Ballard, 108 Wn. App. 272, 279, 31 P.3d 6 (2001). We review legal issues de novo. Manufactured Housing, 142 Wn.2d at 353. Like the trial court, we take the facts in the light most favorable to the nonmoving party. Manufactured Housing, 142 Wn.2d at 353. Summary judgment is appropriate if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 140, 960 P.2d 919 (1998); CR 56(c). But `when reasonable minds can reach only one conclusion from the evidence presented, a question of fact may be determined as a matter of law.’ Bird v. Walton, 69 Wn. App. 366, 368, 848 P.2d 1298 (1993).
We review the trial court’s evidentiary rulings for abuse of discretion. Sunbreaker Condo. Ass’n v. Travelers Ins. Co., 79 Wn. App. 368, 372, 901 P.2d 1079 (1995), review denied, 129 Wn.2d 1020 (1996). A trial court abuses its discretion if its decision is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Dismissal of Claims
Upham first contends that the trial court erred in granting the State’s motion to dismiss. In a tort action based on negligence, the plaintiff must establish the existence of a duty owed to her, breach, and injuries proximately caused by that breach. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). An action for negligence does not lie if the plaintiff cannot establish that the defendant owed a duty of care. McCluskey v. Handorff-Sherman, 125 Wn.2d 1, 6, 882 P.2d 157 (1994). The preliminary determination of whether a duty of care exists is a question of law that the court decides. Hertog, 138 Wn.2d at 275; Keller v. City of Spokane, 104 Wn. App. 545, 552, 17 P.3d 661, review granted, 144 Wn.2d 1001 (2001).
The trial court ruled that Upham failed to establish that the State owed her a duty of care. Upham asserts that the State has a duty to exercise reasonable care in the maintenance of its public roads to ensure that they are reasonably safe for ordinary travel. Indeed, this is a well-established rule in Washington. See McCluskey, 125 Wn.2d at 6; Boeing Co. v. State, 89 Wn.2d 443, 446, 572 P.2d 8 (1978); Provins v. Bevis, 70 Wn.2d 131, 138, 422 P.2d 505 (1967); Berglund v. Spokane County, 4 Wn.2d 309, 313, 103 P.2d 355 (1940); Keller, 104 Wn. App. at 552; Bird, 69 Wn. App. at 368. But the government is neither an insurer nor a guarantor of the safety of travelers on its roadways. Provins, 70 Wn.2d at 138. To establish a duty of care on the part of a governmental entity to maintain its roads in a condition that is reasonably safe for ordinary travel, a plaintiff must meet a two-part test: notice to the governmental agency of the dangerous condition it did not create and a reasonable opportunity to correct it. Wright v. City of Kennewick, 62 Wn.2d 163, 167, 381 P.2d 620 (1963); Bird, 69 Wn. App. at 368. Here, evidence tending to establish notice included a weather forecast for a minimal possibility of ice in the upper Olympic Peninsula region for that morning (1 on a range of 1 to 10). Also, there was testimony from Dr. Maff, Upham’s expert witness, indicating that he could not be sure when or where ice would have formed but that ice could have formed one-half hour before the accident occurred. For purposes of our review, we assume ice had formed one-half hour before at the location of the accident. There was also evidence that Siebert Creek was tenth on a list of 10 potential problem areas. Finally, there was evidence that the DOT sent out its road maintenance crew in sand trucks that morning to patrol the state highways for icy conditions and that one DOT employee drove through the location of the accident earlier that morning without noticing any ice on the road. There was no evidence that any similar incidents had occurred in the past at Siebert Creek. There was also no evidence that anyone had reported the icy conditions at Siebert Creek to DOT or any governmental entities until after the accident. Here, viewing this evidence in the light most favorable to Upham, reasonable minds could not differ that the State did not have notice of the icy conditions at the accident location and, therefore, the State did not have an opportunity to correct it. The undisputed facts were that there was a minimal possibility of ice in the entire region and not any particular area and, historically, Siebert Creek was not a particularly dangerous spot. In the context of natural accumulations of ice on the road, our Supreme Court has held that a governmental entity has constructive notice of a dangerous condition if the condition has existed for such a period of time that the governmental entity should have known of its existence through the exercise of ordinary care. Niebarger v. City of Seattle, 53 Wn.2d 228, 230, 332 P.2d 463 (1958). The Niebarger court held that, as a matter of law, 15 hours was insufficient time to constitute constructive notice. Niebarger, 53 Wn.2d at 230. In the present case, Upham can only show that ice may have formed one-half hour before the accident. This is insufficient time to constitute constructive notice.
Upham argues that the trial court erred in deciding factual issues that should have been submitted to the jury. She is incorrect. As part of the initial step in deciding whether the State owed a duty of care here, the trial court must necessarily determine whether there was evidence showing that the State had notice and opportunity to respond. Even taking the evidence in the light most favorable to Upham, she fails to demonstrate notice and an opportunity to correct. Therefore, the trial court properly decided that Upham failed to establish the existence of a duty of care, an essential element of a negligence claim. The trial court appropriately granted summary judgment for the State. Inadmissible Evidence
Upham also contends that the trial court erred in not admitting evidence of Clallam County’s sanding efforts the morning of the accident. She asserts that this evidence demonstrates notice and an opportunity to respond, as well as the standard of care. Essentially, she argues that if Clallam County was sanding its roads, it obviously knew the roads were icy and, thus, DOT must be presumed to also have the same knowledge. In addition, she asserts that because Clallam County was sanding its roads that morning, any other governmental entity that did not also sand its roads fell below the reasonable standard of care established by Clallam County.
The first part of Upham’s contention posits that knowledge by one governmental entity constitutes constructive knowledge by another governmental entity — in essence, Clallam County’s knowledge of ice on its roads imputes knowledge to DOT. Upham cites no authority for this proposition, nor does she introduce any evidence that Clallam County and DOT share this knowledge, whether routinely or on this occasion. Upham claims that DOT and Clallam County have access to the same weather data and were operating from the same set of information. But she presents no evidence to support this claim.[7] But even if Upham’s claims were true, they would be relevant only if she could establish that Clallam County’s actions were the accepted standard of care. Upham is unable to meet this requirement.
The second part of Upham’s contention seeks to establish Clallam County’s conduct as the standard of care. The trial court properly rejected Upham’s argument. It is a well-recognized rule that evidence of industry custom is admissible to establish a standard of conduct, but not the practices of a single person or entity. Haysom v. Coleman Lantern, Co., 89 Wn.2d 474, 487, 573 P.2d 785 (1978); Meyers v. Meyers, 81 Wn.2d 533, 538, 503 P.2d 59 (1972); Swartley v. Seattle Sch. Dist. No. 1, 70 Wn.2d 17, 21, 421 P.2d 1009 (1966); Miller v. Staton, 58 Wn.2d 879, 885, 365 P.2d 333 (1961). Upham attempts to circumvent this by introducing declarations of two former road maintenance workers from Grays Harbor County and DOT at the hearing for the presentment of the summary judgment order. The two declarations simply reflect the personal opinions of these two former road maintenance workers. They do not represent the official policy or operating procedures of either Grays Harbor County or DOT. The declarations were not offered as expert opinions. Furthermore, neither declaration proposes to establish what can be considered as an industry custom. As previously noted, a trial court has wide latitude in evidentiary determinations, and we review its determinations for abuse of discretion. Sunbreaker, 79 Wn. App. at 372. Here, the trial court recognized Upham’s three possible theories for admitting the Clallam County evidence and then gave valid and justified reasons for not admitting this evidence.[8] The trial court did not abuse its discretion in excluding this evidence.
Affirmed.
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.
We concur: Armstrong, J., Hunt, C.J.
Priority designation provides that `[a]ll sections of highways having an average daily traffic (ADT) of 10,000 or more is designated Priority One. Appropriate ice control operations begin when ice conditions are evident. CP at 118.
The State also cited Miller v. Staton, 58 Wn.2d 879, 885, 365 P.2d 333
(1961), for the proposition that custom may not be established by evidence of a single person or business.
Finally, the trial court rejected Upham’s proposed use of this evidence to prove notice because it was too remote and speculative to establish constructive notice for the State.