118 Wash. App. 165 | Wash. Ct. App. | 2003
Connie and James Unger appeal the superior court’s decision in a wrongful death action denying a motion for change of venue under RCW 4.12.030 and holding as a matter of law that Island County owed no duty to their son, the decedent, because he was driving recklessly. We affirm the trial court’s denial of the motion for change of venue, but we reverse summary judgment and remand for trial because there is a genuine issue of material fact that should be decided by a jury.
FACTS
On January 2, 1997, Jeremy Unger died from injuries sustained in a single car accident on Camano Island. Before his death, he was dating Christine Cauchon, who ran away from home about a month before the accident occurred.
Heavy rains and snowmelt in Island County have resulted in several small-scale slides on Whidbey and Camano Islands. Some unstable bluffs or hillsides have slid, causing damage to primarily empty structures or vehicles; some roadways may be partially blocked.
. . . Standing water or overflowing roadside ditches may impact vehicular traffic. Major roads are open.
Media advisories will be forthcoming as the situation changes.
Jeremy Unger successfully “lost” Joey several minutes before the accident on Camano Ridge Road. Unger’s single-car accident occurred on a different road called Camano Hill Road. There were no witnesses to the accident. Unger was injured and airlifted to Harborview Medical Center. He died two days later from his injuries.
The Ungers brought a wrongful death action against Connie and James Cauchon, Joey Cauchon, and Island County. The action against the Cauchons was dismissed with prejudice by stipulation on June 7, 2001. On March 5, 2001, the Ungers brought a motion to change venue, arguing they could not receive a fair and unbiased trial in Island County due to adverse publicity, most of the witnesses to the action lived in Snohomish County, and the ends of justice would be ill served by Island County, which has an apparent conflict of interest. The trial court denied the motion on March 16, 2001. On March 29, 2002, after
ANALYSIS
I. Change of Venue
A trial court may transfer a case to a different county when it appears by affidavit or other satisfactory proof “[t]hat there is reason to believe that an impartial trial cannot be had therein,”
“(1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of the prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of the publicity; (8) the severity*171 of the charge; and (9) the size of the area from which the venire is drawn.”[7 ]
The Ungers argue that the trial court abused its discretion by refusing to grant its motion under RCW 4.12.030(2) and RCW 4.12.030(3) because the newspaper articles about the accident were inflammatory and prejudicial, providing reason to believe that the Ungers could not receive an impartial trial in Island County, a change in location would be more convenient for witnesses,
First, the trial court did not abuse its discretion by denying the motion for change of venue under RCW 4.12.030(3).
Second, the trial court did not abuse its discretion by denying the motion for change of venue under RCW 4.12.030(2)
Summary judgment is proper where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.
Proximate cause consists of two elements: cause in fact and legal causation. Thompson [v. Devlin], 51 Wn. App. [462,] 466[, 754 P.2d 1003 (1998)].
Cause in fact refers to the actual (“but for”) consequences of an act. . .. The cause in fact determination is not appropriate for summary judgment unless there is but one reasonable conclusion.[17 ]
Legal causation . . . requires a determination of whether liability should attach as a matter of law, given the existence of cause in fact. . . . Determining factors in resolving an issue of “legal causation” have been described as “mixed considerations of logic, common sense, justice, policy, and precedent.”[18 ]
The Ungers argue that the trial court did not properly view all facts in the light most favorable to them as the nonmoving party. They assert the speed of the vehicle at the time of the accident and the reason why Unger lost control
In this case, the trial court relied upon this court’s opinion in Braegelmann v. Snohomish County.
The Ungers contend that the Washington Supreme Court’s opinion in Keller overrules our opinion in Braegelmann. In Keller, the plaintiff was traveling by motorcycle as fast as 50 miles per hour over the posted speed limit when it hit a car at an intersection with no stop signs. A jury found that Keller and the other driver were at fault and the City was not. The Supreme Court reversed because it concluded the instructions improperly permitted the jury to determine the City had no duty at all if it found Keller was negligent. In its analysis, the Supreme Court discussed conflicting opinions
Accordingly, the trial court erred in this case by concluding that because Unger was driving recklessly, the County owed him no duty as a matter of law. Although the jury instruction approved in Keller does not say so,
There is evidence in the record that the road was not maintained in a safe condition for ordinary travel on the night in question
We reverse and remand.
Ellington and Schindler, JJ., concur.
She reportedly ran away for weeks at a time before and during her relationship with Unger.
RCW 4.12.030(2).
RCW 4.12.030(3).
West v. Osborne, 108 Wn. App. 764, 770, 34 P.3d 816, review denied, 145 Wn.2d 1012 (2001).
State v. Boot, 89 Wn. App. 780, 786, 950 P.2d 964 (citing State v. Nelson, 108 Wn.2d 491, 504-05, 740 P.2d 835 (1987)), review denied, 135 Wn.2d 1015 (1998).
Id. (citing State v. Crudup, 11 Wn. App. 583, 586, 524 P.2d 479, review denied, 84 Wn.2d 1012 (1974)).
Id. (quoting Crudup, 11 Wn. App. at 587).
The Ungers note that the Island County courthouse is on Whidbey Island, while the appellants live on Camano Island, all expert witnesses are located in King County, and severed fact witnesses live in Snohomish County.
89 Wn. App. 780, 950 P.2d 964, review denied, 135 Wn.2d 1015 (1998).
RCW 4.12.030(3) states:
The court may, on motion, in the following cases, change the place of trial when it appears by affidavit, or other satisfactory proof:
(3) That the convenience of witnesses or the ends of justice would be forwarded by the change ....
Lincoln v. Transamerica Inv. Corp., 89 Wn.2d 571, 573 P.2d 1316 (1978) (holding a trial court’s refusal to grant a change in venue was proper when the
RCW 4.12.030(2) states:
The court may, on motion, in the following cases, change the place of trial when it appears by affidavit, or other satisfactory proof:
(2) That there is reason to believe that an impartial trial cannot be had therein
Wojcik v. Chrysler Corp., 50 Wn. App. 849, 751 P.2d 854 (1988).
Id.
Id.
LaPlante v. State, 85 Wn.2d 154, 159, 531 P.2d 299 (1975).
Braegelmann v. Snohomish County, 53 Wn. App. 381, 384-85, 766 P.2d 1137 (citations omitted) (quoting Baumgart v. Grant County, 50 Wn. App. 671, 673, 750 P.2d 271, review denied, 110 Wn.2d 1033 (1988)), review denied, 112 Wn.2d 1020 (1989).
Id. (citation omitted) (quoting King v. City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)).
62 Wn. App. 140, 813 P.2d 608, review denied, 118 Wn.2d 1004 (1991). In Stephens, this court concluded that summary judgment was improper when a traffic expert indicated that if Stephens, who was injured in a motorcycle accident, had been traveling at 40-45 m.p.h. at impact, the cause of the accident was the design of the roadway. An eyewitness estimated Stephens’ speed at 50-60 m.p.h. Taking the evidence in a light most favorable to Stephens, we accepted the 50 m.p.h. estimate and concluded that the 5 m.p.h. difference was not so significant to justify holding as a matter of law that the proximate cause of the accident was Stephens’ own negligence.
It is undisputed that up to one quarter mile from the accident site, which is where the chase ended and the last time anyone saw Unger, he was driving in excess of 70 m.p.h. where the posted speed was between 35 m.p.h. and 50 m.p.h., and he was driving with his headlights off.
146 Wn.2d 237, 44 P.3d 845 (2002).
53 Wn. App. 381, 766 P.2d 1137, review denied, 112 Wn.2d 1020 (1989).
An expert witness testified that the posted speed limit for the road was set too high and the crest of the hill should have been three feet lower to provide adequate sight distance. Braegelmann, 53 Wn. App. at 385.
Id. at 386.
Id. (citing Klein v. City of Seattle, 41 Wn. App. 636, 705 P.2d 806 (holding as a matter of public policy, a city cannot be expected to guard against another at-fault driver who was negligently driving 20-30 m.p.h. over the posted limit, crossing the center line, and had a blood alcohol content of .04 percent), review denied, 104 Wn.2d 1025 (1985)).
The court lists an array of conflicting views and the cases supporting them in its opinion. See Keller, 146 Wn.2d at 246-47.
Id. at 249.
Id. (emphasis added). The court overruled only one case in Keller, stating that “[although several Court of Appeals cases state that municipalities owe a duty only to nonnegligent users of their roadways, with the exception of Wick v. Clark County, 86 Wn. App. 376, 936 P.2d 1201[, review denied, 133 Wn.2d 1019] (1997), these cases are factually distinguishable because the streets were found to be safe for ordinary travel.” Id. at 254-55.
Id. at 249 (quoting Berglund v. Spokane County, 4 Wn.2d 309, 321, 103 P.2d 355 (1940)).
The instruction stated: “A [County] [City] [Town] [State] has a duty to exercise ordinary care in the [construction] [repair] [maintenance] of its public [roads] [streets] [highways] to keep them in a reasonably safe condition for ordinary travel.” Id. at 254.
The County argues that it was doing all it could to maintain the roads on the night of the accident. It issued advisories warning motorists and claims the dangerous conditions were the result of “unavoidable acts of God.” The adequacy of these warnings and the evidence suggesting the County failed to maintain the roadway in a condition safe for ordinary travel on days with less severe weather are issues the jury must weigh and resolve.
In his deposition, Trooper J.A. Meldrum stated that from his investigation, it appeared quite likely that Unger lost control of his vehicle when it encountered
She described the “washout” as “a lot of water running over the road and dirt and gravel.”
Recognizing that a court may not consider inadmissible evidence when ruling on a motion for summary judgment, Dunlap v. Wayne, 105 Wn.2d 529, 535, 716 P.2d 842 (1986), it is important to note that although this evidence would not be admissible as a later remedial measure to prove negligence, it might be admissible to rebut a contention that the County was not responsible for maintaining the culvert or that precautionary measures were not feasible. ER 407.