Hartley v. State, No. 51084-9

• Court: United States State Supreme Court of Washington
• Writing for the Court: DOLLIVER; PEARSON
• Citation: 698 P.2d 77,103 Wn.2d 768
• Parties: , 53 USLW 2527 Richard S. HARTLEY, as Personal Representative of the Estate of Janet H. Hartley, and as husband of deceased Janet H. Hartley; Erin A. Hartley, as minor daughter of deceased Janet H. Hartley; and Sean A. Hartley, as minor son of deceased Janet H. Hartley, Respondents, v. The STATE of Washington; "John Does" Numbers One Through Ten, and "Jane Does" Numbers One Through Ten; and Eugene R. Johnson and Jane Doe Johnson, husband and wife, Petitioners, Pierce County, Petitioner.
• Decision Date: 11 April 1985
• Docket Number: No. 51084-9

Page 768

103 Wn.2d 768 698 P.2d 77, 53 USLW 2527 Richard S. HARTLEY, as Personal Representative of the Estate
of Janet H. Hartley, and as husband of deceased Janet H.
Hartley; Erin A. Hartley, as minor daughter of deceased
Janet H. Hartley; and Sean A. Hartley, as minor son of
deceased Janet H. Hartley, Respondents,
v.
The STATE of Washington; "John Does" Numbers One Through
Ten, and "Jane Does" Numbers One Through Ten; and
Eugene R. Johnson and Jane Doe Johnson,
husband and wife, Petitioners,
Pierce County, Petitioner. No. 51084-9. Supreme Court of Washington,
En Banc. April 11, 1985.

Page 769

[698 P.2d 78] Ken Eikenberry, Atty. Gen., Michael E. Tardif, Asst. Atty. Gen., Olympia, for State.

Burgess, Kennedy, Fitzer & Strombom, P.S., Timothy Gosselin, Tacoma, for Pierce County.

Rush, Kleinwachter, Hannula & Harkins, Daniel L.

Page 770

Hannula, Bradford E. Furlong, Tacoma, Loucks, Lamb, Oros & Jankovich, Dan B. Oros, Seattle, for respondents.

DOLLIVER, Chief Justice.

This case was certified to this court for direct review by Division Two of the Court of Appeals prior to a hearing on the merits. Defendants, State of Washington and Pierce County, appeal the trial court's dismissal of their motion for summary judgment. The State and County sought to be dismissed as defendants in a personal injury and wrongful death action brought by the husband and minor children of a woman killed in an automobile collision. In turn plaintiffs (the Hartleys) moved, as part of their brief before the Court of [698 P.2d 79] Appeals, for dismissal of this appeal and remand for trial.

We conclude the appeal is properly before this court. We further conclude there is not sufficient legal causation to implicate the County and State as defendants, thus their motion for summary judgment should be granted.

Since this case is before the court on an interlocutory review, there are no trial court findings of fact. The following facts, however, are undisputed: Janet Hartley was killed when an automobile driven by Eugene R. Johnson crossed the center line and collided with her auto February 6, 1980, on a highway between Tacoma and Puyallup. Johnson was intoxicated at the time of the collision and was charged with negligent homicide. He has since pleaded guilty.

Johnson possessed a valid driver's license at the time of the collision. This license was a reinstatement issued to him on November 9, 1979 by the Washington State Department of Licensing (DOL) following a 1-year revocation. Prior to causing Mrs. Hartley's death, however, Johnson had been arrested numerous times for driving while intoxicated, and had been arrested for driving without a valid driver's license. Because of these offenses, Johnson was subject to a revocation of his driver's license for 5 years under the Washington Habitual Traffic Offenders Act (HTOA), RCW 46.65.

The HTOA enunciates the following state policy:

Page 771

(1) To provide maximum safety for all persons who travel or otherwise use the public highways of this state; and

(2) To deny the privilege of operating motor vehicles on such highways to persons who by their conduct and record have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state, the orders of her courts and the statutorily required acts of her administrative agencies; and

(3) To discourage repetition of criminal acts by individuals against the peace and dignity of the state and her political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws.

RCW 46.65.010. The statute provides for license revocation as a means of effectuating this policy.

Prior to June 1979, county prosecutors were responsible for initiating HTOA proceedings after notice from the Department of Motor Vehicles. Laws of 1971, 1st Ex.Sess., ch. 284, §§ 5, 6, 7, 8, p. 1488. After June 1979, the statute was amended to make the DOL responsible for HTOA proceedings. RCW 46.65. Thus, as a resident of Pierce County at the time he was subject to HTOA revocation, Johnson could have had his license revoked by either the State, Pierce County, or both. An affidavit filed by defendants indicates the statute was changed to provide for an administrative proceeding rather than a judicial proceeding because of the small number of cases actually adjudicated prior to 1979 (11,000 referrals were still outstanding).

A major dispute between the parties concerns the validity of an affidavit filed by plaintiffs in which Johnson attests to the following: (1) He was intoxicated at the time of the accident; (2) he presently is aware his driving offenses would have subjected him to HTOA revocation of license; (3) the DOL had reinstated his license during the period when he was subject to the HTOA; (4) he has not driven since his license was revoked in 1980; and (5) he would not have been driving if his license had been revoked. Another affidavit from Johnson, which is undisputed,

Page 772

indicates that he has no assets, that he has been unemployed since December 1982, and that the entire amount of his insurance policy ($15,000) has been offered to plaintiffs.

Further areas of disputed fact concern notice of Johnson's various infractions. The County contends it did not receive notice of Johnson's HTOA status from the State. The State, in turn, contends it could [698 P.2d 80] not have received notice of Johnson's conviction for driving with a revoked license on June 2, 1979, in time to affect reinstatement of his license in November of 1979, or in time to revoke his license prior to the collision with Mrs. Hartley.

After a motion to dismiss for failure to state a claim was denied by the trial judge, defendants filed a motion for summary judgment which was also denied.

Plaintiffs raise a single issue: Are the questions of law presented to the Court of Appeals and transferred to this court improperly brought on discretionary review? Defendants' appeal of the trial court's refusal to grant their motion for summary judgment raises the following issues: (1) Do plaintiffs present an issue of material fact upon which reasonable minds could disagree? (2) Was the failure of the State or County to institute HTOA proceedings against Eugene Johnson a proximate cause of Mrs. Hartley's death? (3) Were the State and County exempt from liability under the public duty doctrine because the duty owed to Mrs. Hartley was a duty owed to the public in general? (4) Is the State or County immune from liability for failure to take action against persons subject to license revocation under the HTOA? (The State asserts general governmental immunity for high level discretionary acts. The County asserts prosecutorial immunity.)

A conclusion supporting plaintiffs as to the inappropriateness of appellate review would result in remand for trial without reaching the other issues. For this reason, we address that question first. A conclusion supporting either the State or County on any of the remaining issues would warrant its dismissal as a party, and reversal of the trial

Page 773

court's decision to deny summary judgment as to that party.

Appropriate Appellate Review

The Commissioner for Division Two of the Court of Appeals granted review December 22, 1983, recognizing review of a denial of summary judgment was proper to avoid a useless trial. See Glass v. Stahl Specialty Co., 97 Wash.2d 880, 652 P.2d 948 (1982). The Commissioner also referred to the trial judge's own statement that appellate review was appropriate. Defendants moved to modify the Commissioner's ruling. This motion was denied.

The Court of Appeals then transferred the case to this court pursuant to RAP 4.2(a)(4) as a matter of "broad public import" appropriate for disposition by the Supreme Court.

The Hartleys contend discretionary review under RAP 2.3 is not proper in this case. They argue the trial court did not commit obvious error in denying summary judgment, nor would a trial be useless. They distinguish Glass v. Stahl Specialty Co., supra, on the basis that the earlier case involved application of new and novel legislation, whereas, under their analysis this case is covered by established case law.

Plaintiffs further argue that admission of evidence at trial would have been discretionary with the trial judge, overturned only for an abuse of discretion. Jones v. Robert E. Bayley Constr. Co., 36 Wash.App. 357, 359, 674 P.2d 679 (1984). Thus, they argue appellate review is premature, and they are entitled to a chance to prove their case in court.

Judicial policy generally disfavors interlocutory appeals. Maybury v. Seattle, 53 Wash.2d 716, 721, 336 P.2d 878 (1959). In this instance, however, we are interpreting a new statute with wide implications for governmental liability. Thus, the issues are similar to those in Glass, in which we determined denial of a summary judgment motion to dismiss a party was not a final judgment, but was nevertheless appealable. In Glass, we found the trial court had

Page 774

committed "obvious or probable error" in its interpretation of the tort reform act, RCW 4.22.040; therefore, the case was treated as appropriate for discretionary review under RAP 2.3(b) and RAP 5.1(c). Glass, 97 Wash.2d at 883, 652 P.2d 948. We reach a similar conclusion in this case. The questions of law raised as to the [698 P.2d 81] interpretation of the HTOA are appropriate for review. A useless lawsuit would be prevented by a decision in favor of dismissing the State and County as defendants.

Motion for Summary Judgment

Summary judgment is appropriate "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). Herskovits v. Group Health Coop., 99 Wash.2d 609,...