Gunshows v. Vancouver Tours and Transit, Ltd.

• Decision Date: 04 April 1995
• Docket Number: No. 13326-5-III,13326-5-III
• Citation: 891 P.2d 46,77 Wn.App. 430
• Court: Washington Court of Appeals
• Parties: Patricia Ann GUNSHOWS, a single woman, and the Estate of Arlin Henry Gunshows, by Personal Representative Patricia Ann Gunshows, and Kathleen Broken Rope, Guardian ad Litem for Vine Broken Rope, Appellants, v. VANCOUVER TOURS AND TRANSIT, LTD., a Vancouver B.C. Corporation, Edward N. Tiller and Jane Doe Tiller, husband and wife, Defendants, State of Washington, Department of Transportation, Respondent.

Page 430

77 Wn.App. 430

891 P.2d 46

Patricia Ann GUNSHOWS, a single woman, and the Estate of Arlin Henry Gunshows, by Personal Representative Patricia Ann Gunshows, and Kathleen Broken Rope, Guardian ad Litem for Vine Broken Rope, Appellants, v. VANCOUVER TOURS AND TRANSIT, LTD., a Vancouver B.C Corporation, Edward N. Tiller and Jane Doe Tiller husband and wife, Defendants State of Washington, Department of Transportation, Respondent.

No. 13326-5-III.

Court of Appeals of Washington, Division 3 Panel Three.

April 4, 1995.

Rodney Reinbold, Mansfield, Reinbold & Gardner, Okanogan, for appellants.

John J. Kirschner, Asst. Atty. Gen., Seattle, for respondent.

THOMPSON, Chief Judge.

Patricia Ann Gunshows, individually and as the personal representative of the Estate of Arlin Henry Gunshows, appeals the Superior Court's summary dismissal of her action against the State of Washington. The action asserted the State was liable for the death of 13-year-old Arlin because it allegedly failed to post adequate speed warning signs to slow traffic at the intersection of SR 97 and Malott Road. Arlin was struck by a tour bus and killed when he failed to stop before crossing the intersection on his bicycle. On appeal, Ms. Gunshows contends the trial court erred when it held the State was not negligent because the signing was sufficient to warn persons using the intersection in a proper manner. She argues the fact children on bicycles frequently crossed the intersection raised an issue as to whether the State had breached its duty of care. We affirm.

On April 29, 1989, Arlin and his cousin Vine Broken Rope decided to ride their bikes to Malott from their homes in a HUD housing development. Their course took them west along Malott Road. A stop sign for traffic on Malott Road is situated at the point where the road intersects with SR 97. Just before the intersection, Arlin's hat blew off and he turned his head to look for it. He did not see a tour bus proceeding north on SR 97, and he failed to stop. The driver of the tour bus slammed on the brakes when he saw Arlin enter the intersection. Unfortunately, it was too late. The bus struck and killed Arlin.

Ms. Gunshows sued the tour company which owned the bus. She subsequently amended her complaint to add the State as a defendant. ¹ She alleged the accident was the result of the State failing to post signs slowing traffic on SR 97. Further, the lack of proper signing made the highway inherently dangerous for juvenile bicyclists, who the State knew used the intersection.

The State moved for summary judgment. In support of its motion, the State submitted the declaration of Kern Jacobson, a traffic and highway engineer. He described the signing at the intersection. The road on which Arlin was riding was controlled by a stop sign and a painted stop bar. The tour bus, which was northbound on SR 97, had the benefit of (1) a sign reading "Malott Left 1/2 Mile", (2) a pedestrian ahead warning sign located approximately 530 feet south of the intersection, and (3) a second sign reading "Malott" with an arrow pointing left just south of the intersection. Mr. Jacobson stated the sight distance for someone stopped at the stop bar on Malott Road looking south on SR 97 is 4,350 feet. A sight distance of 582 feet is required by the Washington State Transportation Design Manual. In his opinion, "the signing at this intersection ... satisfied the Manual On Uniform Traffic Control Devices and was in compliance with all applicable traffic and highway engineering standards.... [A]dditional warning signs ... were not warranted."

In response, Ms. Gunshows filed the affidavit of Ronald O. Carlson, who has investigated over 100 accidents as a reconstruction expert. In his opinion, "[a]t a speed limit of 55 mph and given appropriate time for reaction, it would be impossible for a northbound vehicle traveling at the speed limit ... to stop for a bicycle who approaches and crosses the intersection at 10 mph without a stop." ² He therefore concluded the road speed is not safe for ordinary use, which includes use by juvenile bicyclists who are prone to disregard stop signs. He stated his opinion that "[a] bus traveling 45 mph would have stopped before impact with a comfortable margin."

Ms. Gunshows also submitted the affidavit of Don Bleakney, whom she asked to investigate the bicycle use patterns of the HUD housing development. He stated that there are 37 houses in the development, and that all commercial vending facilities are located on the other side of SR 97. The housing development has a large ratio of children to adults. He observed 29 bicycles parked on property adjacent to 19 of the 37 homes. A door to door canvass revealed 31 bicycle riders between the ages of 4 and 18. The owner of the Malott store confirmed that many of his customers are juvenile bicyclists who come from the housing development across SR 97.

In addition, Ms. Gunshows filed the affidavit of Eric Thompson, a clinical psychologist employed by the United States Public Health Service, with offices in Winthrop, Washington. Referring to the crossing, he stated: "I cannot think of a more dangerous situation anywhere else in the County."

Despite Ms. Gunshows' arguments that the above evidence raised an issue of fact, the court granted the State's motion for summary judgment.

On appeal, Ms. Gunshows contends the court erred when it held as a matter of law that the State's duty was limited to keeping the highway reasonably safe for persons using it in a proper manner and exercising ordinary care for their own safety. Specifically, she maintains the State should have foreseen that child bicyclists would fail to stop at the stop sign; that the posted speed limit and signing did not allow for child avoidance; and that application of the standard used by the trial court violates the statutory provision for comparative negligence.

The cornerstone of Ms. Gunshows' argument is former WPI 140.01 and the comment thereto. The pattern instruction advises that the State has a duty to exercise ordinary care in the design of its public roads to keep them in a manner "that is reasonably safe for ordinary travel." The committee deleted the qualification found in the instruction as it appeared prior to the adoption in Washington of comparative negligence, i.e., that the public highways be reasonably safe for "persons using them in a proper manner and exercising ordinary care for their own safety." Comment, WPI 140.01 (quoting Argus v. Peter Kiewit Sons' Co., 49 Wash.2d 853, 307 P.2d 261 (1957)). The committee stated it believed this qualification did not apply "since contributory negligence is not now a bar to recovery." Comment, at 632.

However, the 1994 pocket part to the WPI's contains a revised WPI 140.01, which includes the previously deleted qualification. The comment explains that the committee's...