Hough v. Ballard, 25411-5-II.

• Decision Date: 31 August 2001
• Docket Number: No. 25411-5-II.,25411-5-II.
• Citation: 31 P.3d 6,108 Wash. App. 272
• Court: Washington Court of Appeals
• Parties: Lawerence R. HOUGH and Ethel Hough, husband and wife; and Roberta Hough, a single person, Respondent, v. Robin S. BALLARD and "Jane Doe" Ballard, husband and wife, and the marital community consisting thereof, Appellant.

31 P.3d 6

108 Wash. App. 272

Lawerence R. HOUGH and Ethel Hough, husband and wife; and Roberta Hough, a single person, Respondent, v. Robin S. BALLARD and "Jane Doe" Ballard, husband and wife, and the marital community consisting thereof, Appellant.

No. 25411-5-II.

Court of Appeals of Washington, Division 2.

August 31, 2001.

David Michael Jacobi, Wilson Smith Cochran & Dickerson, Seattle, for Appellants.

Mark W. Conforti, William M. Wood, Meikle & Wood, Tacoma, Raymond W. Schutts, Spokane, for Respondents.

HUNT, A.C.J.

IT IS SO ORDERED.

Robin S. Ballard appeals partial summary judgment in favor of Lawerence R. Hough in a tort action arising from a nighttime collision at an intersection with inoperative traffic lights. The trial court ruled as a matter of law that Ballard was 100 percent liable because Hough was the favored driver. Because there are material issues of fact concerning the cause of the accident and Hough's comparative negligence, we reverse and remand on the issue of liability.

FACTS

I. THE ACCIDENT

It was a stormy, dark night on September 28, 1995, and the power was out. The traffic signals and streetlights were not functioning at the intersection of Canyon Road and 128th Street E. in Pierce County. Recognizing that visibility was poor, Robin Ballard, driving west on 128th Street E., had stopped at the darkened intersection before proceeding carefully across 128th Street going 10 miles per hour. Lawerence Hough's vehicle was nowhere in sight as Ballard entered the five-lane-wide intersection. But as Ballard proceeded across the intersection, reaching the far lane, Hough rammed into the side of Ballard's van. See diagram below, taken from the Traffic Collision Report appended to Respondent's Brief.¹

Hough had been driving south on Canyon Road, with his headlights on, at between 35 and 40 miles per hour, about 10 miles per hour below the speed limit. Hough's daughter, Roberta Hough, was a passenger in his car. Hough knew that there was a power outage in the area, a mile before the intersection, an area that he had driven before. But as Hough approached the intersection, he was unaware that he was entering it; he neither stopped nor slowed. He did not perceive that the traffic signals were out until he saw Ballard's van in front of his headlights and hit it.² "[U]ntil then, [Hough] had no idea where [he] was located." Clerk's Papers at 56-57. See also Traffic Collision Report, supra.

II. PROCEDURAL BACKGROUND

Three years later, Hough sued Ballard for personal injuries arising from the collision. Hough moved for partial summary judgment on liability, supported by a memorandum, an affidavit containing excerpts from Ballard's deposition, and affidavits from Hough and his daughter. Ballard filed an Opposition to Plaintiffs' Motion for Partial Summary Judgment, supported by a declaration with excerpts from Ballard's and Hough's depositions. Hough filed a Reply Memorandum, supported by an affidavit containing further excerpts from his and his daughter's depositions.

The trial court granted Hough's motion for partial summary judgment, ruling that Ballard was "liable for all damages sustained by the Plaintiffs, which were proximately caused by the collision on September 28, 1995." Clerk's Papers at 77. The court also "declared [Hough] to be free of any comparative negligence for purposes of the arbitration award and/or verdict to be rendered in this case." Clerk's Papers at 77.

The case was then set for mandatory arbitration to determine damages. After the arbitration, the trial court entered a Judgment on Arbitration Award in the amount of $18,791 for Hough, and $9,081 for Roberta Hough. Ballard appealed.

ANALYSIS

I. APPEALABILITY

On January 7, 2000, our court Clerk questioned whether the findings below were sufficient for appellate review under RAP 2.2(d) and set the matter on the court's motion docket without oral argument. RAP 6.2(b). Ballard filed a memorandum arguing that the case was "ripe for review and that he [was] entitled to pursue this appeal as a matter of right under RAP 2.2(a)(1)." Hough did not allege that the case was not appealable.

On January 28, 2000, our court commissioner ruled the matter appealable under RAP 2.2(a)(1). Hough did not file a motion to modify; thus, the commissioner's ruling became final in that neither party was entitled to further review as a matter of right.³

Hough now argues for the first time that this case is not properly before us, characterizing it as an improper appeal from a mandatory arbitration, citing MAR 6.3. Ballard responds that the case is appealable because: (1) he is not challenging the arbitration damages award; (2) the trial court's partial summary judgment on liability was not itself a final, appealable judgment; and (3) his first chance to appeal summary judgment arose only after the trial court's entry of final judgment under RAP 2.2(a)(1) following the arbitrator's damages award. Reply Brief of Appellant at 3-4.

Hough's appealability challenge is untimely: He failed to contest appealability when that issue was before the court commissioner. He failed to move to modify the commissioner's determination of appealability under RAP 17.7. Moreover, he sought to benefit from the jurisdiction of this Court by filing a motion on the merits under RAP 18.14, in which he asked for dismissal of the appeal or, in the alternative, an order affirming the trial court's entry of judgment.⁴ Hough cannot now argue that this court has no jurisdiction when he had ample opportunity previously to argue this claim and failed several times to do so.

II. SUMMARY JUDGMENT

A. STANDARD OF REVIEW

On a motion for summary judgment, the trial court is required to view all evidence, to draw all reasonable inferences in favor of the nonmoving party, and to deny the motion if the evidence and inferences create any question of material fact. DeYoung v. Providence Med. Ctr., 136 Wash.2d 136, 140, 960 P.2d 919 (1998); Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 487, 834 P.2d 6 (1992). Here, the trial court granted Hough's motion for partial summary judgment on the ground that Ballard was negligent as a matter of law and, therefore, 100 percent liable for Hough's damages.

On appeal from a grant of summary judgment, we engage in the same inquiry as the trial court. Benjamin v. Wash. State Bar Ass'n, 138 Wash.2d 506, 515, 980 P.2d 742 (1999). 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. Kruse v. Hemp, 121 Wash.2d 715, 722, 853 P.2d 1373 (1993); CR 56(c). Whether there has been negligence or comparative negligence is a jury question, unless the facts are such that all reasonable persons must draw the same conclusion from them, in which event the question is one of law for the courts. Shook v. Bristow, 41 Wash.2d 623, 626, 250 P.2d 946 (1952).

B. PARTIAL SUMMARY JUDGMENT ON LIABILITY

Drawing all inferences in favor of the nonmoving party, Ballard, the primary legal question is whether he produced sufficient evidence concerning questions of material fact to defeat a motion for summary judgment under the standards of DeYoung v. Providence Med. Ctr., 136 Wash.2d at 140, 960 P.2d 919. Contrary to the trial court's order granting summary judgment,⁵ Ballard produced ample facts for a jury to conclude that Hough was comparatively negligent in failing to follow the applicable rules of the road. The trial court erred in granting Hough's motion for summary judgment on liability.

1. RULES OF THE ROAD

The facts as alleged could reasonably lead to the conclusion that Ballard followed the applicable rules of the road and that Hough did not, yielding a result short of 100 percent fault and liability on Ballard's part.

a. FAVORED DRIVER

RCW 46.61.180, governing vehicles approaching an intersection, provides:

(1) When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.

(2) The right of way rule declared in subsection (1) of this section is modified at arterial highways⁶ and otherwise as stated in this chapter.

(Emphasis added.) The accident report depicts Ballard's vehicle almost entirely through the intersection by the time Hough entered the intersection and hit the right rear of Ballard's vehicle. See reproduced diagram, supra. Thus, first, there is a question of fact as to whether the two vehicles entered the intersection "at approximately the same time" so as to call into play the favored driver-on-the-right rule for intersections. RCW 46.61.180(1). If they did not, then Hough was not the favored driver under this statute.

As the accident report diagram demonstrates, the timing and location of the collision raise material questions of fact contrary to the trial court's conclusion that Hough was the favored driver simply because he eventually entered the intersection to Ballard's right. Viewing the facts in the light most favorable to the party opposing summary judgment, the facts are susceptible to the conclusion that Ballard entered the intersection well before Hough and that Hough came along somewhat later at a higher rate of speed and entered the intersection without stopping, slowing, or seeing Ballard passing in front of him.

The nature of intersection collisions makes timing an all pervasive element to be evaluated by the jury when the circumstances leave the imposition of fault open to question. The interaction between two vehicles involves location, direction, movement, conditions, obstructions, actions, observations and numerous other influences that may have brought about a crash course rather than safe passage. These matters must be assessed by the jury unless the evidence permits no inference of negligence on the part of one party or on the part of the other. The conduct of the favored or the

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