Gunderson v. Asbury, No. 31685-4-II (WA 8/16/2005)
| Decision Date | 16 August 2005 |
| Docket Number | No. 31685-4-II,31685-4-II |
| Court | Washington Supreme Court |
| Parties | MICHAEL D. GUNDERSON, Respondent, v. BRIAN K. ASBURY and `JANE DOE' ASBURY, husband and wife, individually and the marital community composed thereof, Appellants, KITSAP COUNTY, Respondent. |
Appeal from Superior Court of Kitsap County. Docket No: 98-2-03534-1. Judgment or order under review. Date filed: 04/16/2004. Judge signing: Hon. M Karlynn Haberly.
Counsel for Appellant(s), Novelle Frances Ballard, Mitchell Lang & Smith, 1001 4th Ave Ste 3714, Seattle, WA 98154-1107.
Marilee C. Erickson, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Counsel for Respondent(s), John Dolese, Kitsap County Prosecutors Office, Msc 35a, 614 Division St, Port Orchard, WA 98366-4681.
Francis Berne Jr Ladenburg, Attorney at Law, 6602 19th St W, Tacoma, WA 98466-6131.
Shelly K Speir, Troup Christnacht Ladenburg McKasy et al, 6602 19th St W, Tacoma, WA 98466-6193.
Brian Asbury appeals following a jury verdict finding him wholly liable for damages sustained in a two-car collision that occurred on Highway 303 in Kitsap County when a deputy sheriff's patrol vehicle struck his truck as he was making a left turn onto the highway. Asbury contends that the trial court erred in entering a partial summary judgment determining that he was negligent for failing to stop at a stop line before entering the highway. He also contends that the trial court erred in entering a judgment as a matter of law that the speed of the patrol vehicle, which was driven by Kitsap County Deputy Sheriff Michael Gunderson, was not a proximate cause of the collision; that the trial court improperly emphasized Asbury's negligence and the judgment as a matter of law in its oral and written instructions to the jury; and that the trial court erred in declining to give Asbury's proposed emergency vehicle jury instruction. Respondents Deputy Gunderson and Kitsap County seek attorney fees on appeal.
We affirm in all respects. Because there was no issue of material fact and Asbury has offered no valid justification for failing to stop at the stop line, we uphold the trial court's summary judgment that Asbury was negligent. And because as a matter of law Deputy Gunderson's speed was not a proximate cause of the accident, we also affirm the trial court on that ground. Asbury did not preserve for our review any error as to the court's written instructions to the jury. And he offers no authority or argument supporting his contention that it was improper for the trial court to notify the jury of its legal ruling that Deputy Gunderson's speed was not a proximate cause of the collision. Finally, we hold that the trial court properly exercised its discretion in refusing to give Asbury's proposed instruction on the privileges of emergency vehicles. But because we do not find Asbury's appeal frivolous, we deny Deputy Gunderson and the County's attorney fee requests.
On December 6, 1995, at approximately 10 p.m., a truck driven by 19-year-old Asbury and a Kitsap County Sheriff's patrol car driven by Deputy Gunderson collided at the intersection of Highway 303 and Old Military Road in Kitsap County.
Deputy Gunderson and his passenger, reserve Deputy Donald LaCroix, were traveling northbound on Highway 303 toward Silverdale. After passing a Camaro traveling 70 miles per hour in the opposite direction, Deputy Gunderson made a U-turn near a church,1 headed southward, and began overtaking the Camaro. The speed limit for that stretch of highway is 50 miles per hour. The deputies estimated that the patrol car was traveling at 55 to 60 miles per hour at the time. The testimony of Richard Penor, who was driving on Highway 303 behind the Camaro, supported this he estimated that he was traveling at 50 to 55 miles per hour and Deputy Gunderson's car was slowly gaining on him.
Deputy Gunderson did not activate his patrol car's lights or sirens when pursing the Camaro. After rounding a curve just north of the intersection of Highway 303 with Old Military Road, Deputy Gunderson visually scanned the intersection but saw no one there. Deputy Gunderson then turned his attention to the Camaro. Suddenly, Deputy LaCroix yelled, 4 Report of Proceedings (RP) at 282. Deputy LaCroix testified that he yelled because he had seen a truck on Old Military Road roll past the stop sign and continue past the stop line2 toward the highway.
Believing that the truck had simply overshot the stop line, Deputy Gunderson first tried to steer around the front of the truck. But when he realized that Asbury was not going to stop, he tried to steer around the back of the truck. The patrol car collided with the truck, and both Deputy Gunderson and Asbury were seriously injured.
At the time of the collision, Asbury had a cast on his right foot and was driving with his left foot. He had played pool and was driving to pick up his paycheck at a friend's house. When he reached the intersection, he was planning to turn left onto Highway 303. He testified that as he approached the intersection, he recalled stopping at the stop sign and looking both left and right. He saw `a couple cars' drive by. 6 RP at 837. Asbury did not recall stopping at the stop line. After he had already entered the highway (past the stop line), he noticed lights out of the corner of his eye and he accelerated to try to get through the intersection.
Deputy Gunderson sued Asbury. Asbury counterclaimed against Deputy Gunderson and Deputy Gunderson's employer, Kitsap County. The County counterclaimed against Asbury for the total loss of the patrol vehicle.
Deputy Gunderson moved for a partial summary judgment on the issue of Asbury's negligence: he argued that all the evidence (including that provided by Richard Chapman, Asbury's accident reconstruction expert) established that the truck did not stop at the stop line. On April 25, 2003, the trial court granted Deputy Gunderson's partial summary judgment motion.
Trial was held between February 23 and March 10, 2004. At trial, Deputy Gunderson's accident reconstruction expert, Charles R. Lewis, estimated that Asbury's truck was traveling at about 22 miles per hour at the time of the collision and that the truck could not have reached that speed if it had stopped at the stop line or even the stop sign 33 feet up the hill. Lewis estimated that Deputy Gunderson's vehicle was traveling 40 to 50 miles per hour at the time of impact and 45 to 55 miles per hour when it began to take `evasive action' in respect to Asbury's truck. 4 RP at 339. He testified that even if Deputy Gunderson had been traveling at the speed limit, he could not have avoided the collision.
Similarly, Asbury's accident reconstruction expert, Chapman, calculated that the truck was traveling at 23 miles per hour at the time of the collision.3 But he estimated that the patrol car was traveling 66 miles per hour at the point of the collision and 72 miles per hour before he began to brake, 36 feet before that point. Chapman opined (over Deputy Gunderson's objection, which the court sustained) that the patrol car's speed caused the accident. He also testified that the patrol car's speed was `deceptive.' 8 RP at 1122. But Chapman acknowledged that Asbury was not deceived by the speed of approaching headlights because Asbury had not seen any headlights. Asbury's `human factors' expert witness, Gary Sloan, agreed that there was no evidence that Asbury was deceived in that manner.
Regarding Deputy Gunderson's actions before the collision in respect to the speeding Camaro, a number of expert witnesses, including Kitsap County Sheriff Steven A. Boyer, Kitsap County Undersheriff Dennis Bonneville, and former Kitsap County Patrol Chief Wayne Gulla, testified as to distinctions between `overtaking' a vehicle; `pursuit' of a vehicle; and `emergency' response. The distinctions can be summarized as follows:
`Overtaking' entails speeding up to faster-than-normal speed to catch up with another vehicle. Once the other vehicle is overtaken, the police officer turns on his lights and siren. `Pursuit' occurs once the police vehicle has overtaken the other vehicle, activated its lights, and then the other `take{s} off' or tries to evade. 5 RP at 575. An `emergency run' involves responding to a 911 call. 12 RP at 1699.
Chief Gulla testified that Kitsap deputies are trained to overtake a traffic violator before activating overhead lights. Sheriff Boyer testified that, under the circumstances here, Deputy Gunderson was Sovertaking' and not in pursuit of a vehicle.
Asbury's counsel cross examined Sheriff Boyer on the Kitsap County Sheriff's `Policy and Procedures Manual' (rev. June 1995). Exh. 12. According to the manual, patrol vehicles were not to exceed the speed limit or normal flow of traffic unless responding to an emergency or in 'immediate pursuit.' Exh. 12 at sec. 2.02.24. Asbury called as an expert Pierce County Sheriff's Department employee Walter Becinski, who had for many years instructed that department's officers on emergency vehicle driving. Becinski testified that, in his opinion, it was proper to immediately turn on lights when making a routine traffic stop. Asbury also presented Sloan's expert testimony that if Deputy Gunderson had immediately activated his lights, Asbury would have seen the lights, and the likelihood of the collision occurring would have been reduced.
At the close of testimony, Deputy Gunderson moved for judgment as a matter of law that the patrol car's speed was not a proximate cause of the collision. The court granted the motion. Later, when the parties were discussing the proposed jury instructions, Deputy Gunderson requested that the trial court advise the jury of its ruling on the motion. Asbury objected. But the court granted...
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