Nguyen v. City of Seattle

• Decision Date: 27 January 2014
• Docket Number: No. 69263–1–I.,69263–1–I.
• Citation: 179 Wash.App. 155,317 P.3d 518
• Court: Washington Court of Appeals
• Parties: The–Anh NGUYEN, Appellant, v. CITY OF SEATTLE, a governmental entity, Respondent.

179 Wash.App. 155

317 P.3d 518

The–Anh NGUYEN, Appellant,

v.CITY OF SEATTLE, a governmental entity, Respondent.

No. 69263–1–I.

Court of Appeals of Washington, Division 1.

Jan. 27, 2014.

Edward James Hemingway, Buckley & Associates, Seattle, WA, for Appellant.

Jeffrey Cowan, Tara Gillespie, Seattle City Attorney's Office, Seattle, WA, for Respondent.

LAU, J.

¶ 1 The–Anh Nguyen sued the City of Seattle for personal injuries and damages he sustained when the rented U–Haul truck he was driving struck a portion of a tree in a planting strip adjacent to Olson Place Southwest in Seattle. Nguyen appeals the trial court's decision after a bench trial finding the City breached no duty to maintain the roadway in reasonably safe condition and no act or omission by the City proximately caused the accident. Because substantial evidence supports the court's findings of fact and the findings support its conclusions of law, we affirm the judgment in the City's favor.

FACTS

The Accident¹

¶ 2 On August 25, 2008,² The–Anh Nguyen was driving a rented U–Haul truck on Olson Place Southwest in Seattle, traveling 25 to 30 miles per hour. The truck was a 1997 Ford with a box-like cargo compartment extending over the passenger cab. It measures 11 feet tall, 8 feet wide, 22 1/2 feet long, and 161 inch wheel base.³ Two of Nguyen's friends rode with him in the cab. The weather was clear and the roadway dry and unobstructed.

¶ 3 Olson Place Southwest is an arterial street with two northbound lanes, two southbound lanes, and a center turn lane. Nguyen was driving northbound downhill in the curbside lane. Around 2:25 PM, “the top right front corner of the truck's cargo box struck an overhanging tree branch ... where the large branch of the tree connects to the trunk.” The tree was planted in the planting strip running along Olson Place Southwest. The force of the impact damaged the cargo box's upper corner and uprooted the tree, cleaving it in such a way that the branch and part of the trunk fell onto the roadway behind the truck. The court found:

Because of the impact, the truck drove up onto the curb, as Mr. Nguyen and the passenger next to him struggled with the steering wheel to control the truck. The truck travelled about 40 feet on the planting strip, its right rear bumper nicking another tree before returning to the roadway. The court did not fault Mr. Nguyen's driving; he did not leave the roadway before impact.

¶ 4 The same day, a Seattle Department of Transportation (“SDOT”) crew cut up and removed the debris and damaged tree. The SDOT crew also put the uprooted root ball back into the ground to fill the open hole in the planting strip.

¶ 5 The tree was one of many planted along Olson Place Southwest by SDOT, which maintains all City-owned street trees. To report unsafe or defective trees, SDOT provides an e-mail address and telephone number on its website. Each year SDOT receives 3,500 to 5,000 complaints regarding its trees. The complaints come from citizens, public utilities, police, and street users, including King County Metro, whose buses occasionally strike tree branches overhanging streets on its transit routes. A photograph of the tree Nguyen struck, taken one year before the accident, “shows the tree trunk leaning toward the roadway, but neither low-hanging branches nor damage to the tree that might have been caused by passing vehicles. (Ex. 50).”

¶ 6 Photos showed Metro buses using routes on Olson Place Southwest at the location of the accident. Nguyen's expert agreed that buses are 11 feet or taller. King County Metro never complained to SDOT about the tree at issue impacting its buses, although it has complained about other trees in the area. SDOT received no complaints about this specific tree before the accident.

The Lawsuit

¶ 7 Nguyen filed a personal injury lawsuit against the City of Seattle in June 2012. He alleged the City was negligent because it failed to properly maintain the tree branch that struck the U–Haul. The City denied the allegations and asserted affirmative defenses, including contributory negligence and failure to mitigate damages.

¶ 8 After the court denied Nguyen's partial summary judgment motion as to the City's liability, the parties proceeded to a bench trial. In its trial brief, the City argued in part that Nguyen offered no evidence that the City had actual or constructive notice that the tree at issue posed a hazard to street users. In response, Nguyen moved in limine to preclude the City from arguing lack of notice. Nguyen claimed that lack of notice was an affirmative defense that the City waived by failing to plead it. The City responded that notice is not an affirmative defense but an element of the plaintiff's case in chief. The court denied this motion.

¶ 9 The relevant trial testimony established that the City planted the trees along Olson Place Southwest in 1976, including the tree Nguyen struck. That tree is a “[r]easonably fast growing” species. RP (July 5, 2012) at 476. The City had no formal inspection program for tree branch clearance over roadways. Instead, it relied on citizen complaints. The tree at issue here was larger and closer to the roadway than many of the other trees planted along Olson Place Southwest. Nguyen's exhibit 45 admitted at trial consists of service requests the City received regarding other trees along Olson Place Southwest from 1999 to 2008.

¶ 10 After a three-day bench trial, the court entered extensive findings of fact and conclusions of law. It also expressly incorporated its oral rulings made after trial and during the hearing to present the findings and conclusions.⁴ The trial court made the unchallenged findings summarized above regarding the accident's cause. The court also made the following challenged findings:

6. Prior to August 24, 2008, SDOT had received no complaints regarding the tree struck by Mr. Nguyen's rental truck.

....

8. There is no evidence on the condition of the tree in question that would have conferred constructive notice of a danger to vehicles using Olson PI. SW.

.... 10. However, no act or omission of the City of Seattle or its employees or agents was a cause in fact of the accident of August 24, 2008.

11. The manner in which SDOT maintains Seattle's street trees does not represent a failure of ordinary care.

The court concluded that the City breached no duty to maintain Olson Place Southwest in reasonably safe condition and that no act or omission by the City proximately caused Nguyen's accident. It entered judgment in the City's favor. The court also concluded that the City lacked notice of any alleged danger posed by the tree. See RP (July 9, 2012) at 647 (“That the City is not liable, that they did not have notice either constructive, certainly not actual, of the problem with this tree.”).

¶ 11 The court denied Nguyen's motion for reconsideration, in which he raised a res ipsa loquitur argument for the first time. Nguyen appeals.

ANALYSIS

¶ 12 The question here is whether the City breached its duty to maintain Olson Place Southwest in reasonably safe condition. That question turns on whether the City had actual or constructive notice of the tree's alleged dangerous condition.⁵

Standard of Review

¶ 13 We review the trial court's decision following a bench trial to determine whether the findings are supported by substantial evidence and whether those findings support the conclusions of law. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wash.2d 873, 880, 73 P.3d 369 (2003); Morgan v. Prudential Ins. Co. of Am., 86 Wash.2d 432, 437, 545 P.2d 1193 (1976). The label applied to a finding or conclusion is not determinative; we “will treat it for what it really is.” Para–Medical Leasing, Inc. v. Hangen, 48 Wash.App. 389, 397, 739 P.2d 717 (1987). Substantial evidence is a quantum of evidence sufficient to persuade a rational and fair-minded person that the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000). In determining the sufficiency of evidence, we need only consider evidence favorable to the prevailing party. Bland v. Mentor, 63 Wash.2d 150, 155, 385 P.2d 727 (1963). We presume the trial court's findings are correct, and the party claiming error has the burden of showing that a finding of fact is not supported by substantial evidence. Fisher Props., Inc. v. Arden–Mayfair, Inc., 115 Wash.2d 364, 369, 798 P.2d 799 (1990). We defer to the trial court's assessment of witness credibility and evidence weight. In re Welfare of Sego, 82 Wash.2d 736, 739–40, 513 P.2d 831 (1973). We will not substitute our judgment for that of the trial court, even if we might have resolved the factual dispute differently. Dickie, 149 Wash.2d at 879–80, 73 P.3d 369. Unchallenged findings of fact are verities on appeal. In re Estate of Jones, 152 Wash.2d 1, 8, 93 P.3d 147 (2004); RAP 10.3(g).

¶ 14 An unchallenged conclusion of law becomes the law of the case. King Aircraft Sales, Inc. v. Lane, 68 Wash.App. 706, 716, 846 P.2d 550 (1993). We review conclusions of law de novo. Dickie, 149 Wash.2d at 879–80, 73 P.3d 369. But when an appellant challenges conclusions of law not based on the law itself, but rather claiming that the findings do not support the court's conclusions, appellate review is limited to determining whether the trial court's findings are supported by substantial evidence and, if so, whether those findings support the conclusions of law. Am. Nursery Prods., Inc. v. Indian Wells Orchards, 115 Wash.2d 217, 222, 797 P.2d 477 (1990); Willener v. Sweeting, 107 Wash.2d 388, 393, 730 P.2d 45 (1986).

Negligence

¶ 15 Negligence requires proof of four elements: (1) the existence of a duty to the person alleging negligence, (2) breach of that duty, (3) resulting injury, and (4) proximate cause between the breach and the injury. Am. Commerce Ins. Co. v. Ensley, 153 Wash.App. 31, 42, 220 P.3d 215 (2009).

¶ 16 Government entities are held to the same negligence standards as private...