Ruff v. County of King

• Decision Date: 19 January 1995
• Docket Number: No. 61367-2,61367-2
• Citation: 887 P.2d 886,125 Wn.2d 697
• Court: Washington Supreme Court
• Parties: Rita S. RUFF and John Doe Ruff, wife and husband; and Jon Jason Ruff, a single person, Respondents, v. The COUNTY OF KING, a political subdivision of the State of Washington; Kelly S. Green and Jane Doe Green, husband and wife, individually and the marital community composed thereof; and Jason H. Kennedy, a single person, Petitioners.

Page 697

125 Wn.2d 697

887 P.2d 886

Rita S. RUFF and John Doe Ruff, wife and husband; and Jon

Jason Ruff, a single person, Respondents, v. The COUNTY OF KING, a political subdivision of the State of

Washington; Kelly S. Green and Jane Doe Green, husband and

wife, individually and the marital community composed

thereof; and Jason H. Kennedy, a single person, Petitioners.

No. 61367-2.

Supreme Court of Washington,

En Banc.

Jan. 19, 1995.

Norm Maleng, King County Prosecutor, C. Craig Parker and Jill Higgins Hendrix, Senior Deputy's, Seattle, for petitioners

Kargianis, Osborn, Watkins & Marler, Simeon J. Osborn and Michael T. Watkins, Seattle, for respondents.

Andrew G. Cooley and Stewart A. Estes, Seattle, amicus curiae for petitioners on Behalf of Washington Defense Trial Lawyers.

Christine O. Gregoire, Atty. Gen., Jon P. Ferguson, Sr. Counsel, Michael A. Nicefaro, Jr., Asst. Sr. Counsel, Seattle, amicus curiae for petitioners.

Bryan P. Harnetiaux and Gary N. Bloom, Spokane, amicus curiae for respondents on Behalf of Washington State Trial Lawyers Ass'n.

MADSEN, Justice.

Respondent Jon Jason Ruff (Ruff) was permanently injured, while riding as a passenger in a friend's car, when the car went off the road and rolled upside down. Ruff brought suit against Petitioner King County on grounds of negligence. The trial court granted King County's motion for summary judgment. The Court of Appeals reversed and remanded. Review was granted in this court to determine whether a genuine issue of fact exists as to (1) whether King County breached its duty to Ruff, and, if so (2) whether the condition of the county roadway was the proximate cause of Ruff's injuries.

FACTS

On May 15, 1988, at 8 p.m., Respondent Ruff, a minor, finished his shift as a dishwasher at the Renton Black Angus restaurant. He borrowed Jason Kennedy's car, a 1976 Chevrolet Monte Carlo, which he drove around for several hours. Ruff noticed that one of the tires on the car was bald, was leaking air, and appeared too small for the rim.

At approximately 11:30 that evening, Ruff returned to the restaurant to meet with Jason Kennedy, Gene Felder, Colleen 154th Place S.E. is a 2-lane county road with a double yellow no-passing line in the center of the roadway running from the beginning of 154th Place S.E. to the Jones Road intersection where the road ends. The road has a posted speed limit of 35 m.p.h. Generally, the road runs north to south with several substandard curves which result in the posted speed limit. Along the west side of the road is a stream bed. The shoulder width along the section of the roadway where the accident occurred is between 7 and 8 feet.

Fleming, and Robert Micek, all teenage co-workers at the restaurant. Ruff, Kennedy, Felder, and Fleming got into Kennedy's car. Ruff and Fleming sat in the back seat of the car while Kennedy drove with Felder sitting next to him. Micek drove his own vehicle. The group made two stops to purchase beer, cigarettes, and gas. There is no evidence in the record that the teenagers consumed any alcohol before the accident. The group then proceeded to "bottle beach" on the Cedar River. Clerk's Papers, at 245. As the two cars headed south on 154th Place S.E. toward the beach, Micek drove ahead of the Kennedy car. It was raining and the cars were traveling at approximately 35 m.p.h.

As the two cars drove downhill southbound on 154th Place S.E. approaching a gentle left-hand curve, for no apparent reason, Jason Kennedy flashed his headlights and accelerated his car to pass Robert Micek's car, crossing over the double yellow line into the on-coming lane, and continued to drive "straight off the road". Clerk's Papers, at 267. Micek reported that he saw no brake lights as the car left the road. Also, according to Gene Felder, the front seat passenger in Kennedy's car, after Kennedy passed Micek's car Kennedy turned around to look back at Micek and by the time he turned back to face forward the car was 2 feet from the side of the road. The car landed in the stream bed upside down. Ruff suffered a broken neck in the accident and is now an incomplete quadriplegic.

In a separate proceeding Jason Kennedy was tried and convicted of reckless driving, minor in possession, and driving without a license. He was sentenced to 90 days in jail.

Ruff filed an action against King County for negligence in breaching its duty to provide reasonably safe roads and highways. Specifically, Ruff asserted that King County (1) failed to properly design 154th Place S.E. in accordance with acceptable standards; (2) failed to provide sufficient width of usable roadway; and (3) failed to properly maintain the roadway surface and adjoining shoulder.

During the discovery phase of the proceedings, transportation engineers and accident reconstructionalists were deposed. Edward Stevens, Ruff's consulting expert transportation engineer, testified as to the condition of the road. He concluded that the asphalt was in excellent condition. The fog line stripe along the side of the road and double yellow line in the center of the road were both in good condition. Each line appeared to have been recently painted. The center stripe line was for no passing. It had reflective raised pavement markings. The speed limit was 35 m.p.h. and was clearly posted. The curve at the accident site did not have a warning sign since it was not considered "substandard", in which case a warning sign would have been required. Clerk's Papers, at 285-86. Stevens was of the opinion that the signing in the area of the accident site was appropriate for the roadway. The width of the road measured from the center of the double yellow line to the near edge was 10 feet 6 inches. The shoulder of the road measured 5 feet. Stevens concluded that there was nothing out of the ordinary about the width of the road.

Dr. John Bollard, one of Ruff's accident reconstructionalists, testified that a car traveling in the proper lane could accelerate and successfully negotiate the curve of the accident site, on wet pavement, at 60 m.p.h. Dr. Bollard stated that at the time the Kennedy vehicle lost control it was traveling at 50 m.p.h. Jack Winsor, another of Ruff's accident reconstructionalists, reiterated this last point by stating that due to the heavy rain, the bald tire on Kennedy's Jack Winsor testified that had a barrier been present, depending upon the positioning of the barrier and the type of barrier used, the car would have been directed away from the barrier allowing the driver to possibly regain control of the car. Jarvis Michie, King County's accident reconstructionalist, testified that had a modern guardrail been in place at the accident site the car would have been redirected. Neither expert testified that having a guardrail at the accident site would have prevented injury.

car, and the way in which Kennedy's car left the lane of travel, the maximum speed Kennedy reached when his car lost control was 50 m.p.h.

King County Road Engineer, Louis Haff, in an affidavit, explained King County's guardrail priority system which began in 1984. The first priority for guardrail installation was devoted to bridge approaches throughout the county. This program was carried out in three stages due to budgetary constraints. Legislative funding from the King County Council was provided for the program. The project was completed in 1989.

In the meantime, in 1986, after additional funding was secured, a full-time staff engineer was hired to inventory all county arterials for the purpose of formulating a prioritization of guardrail installation. On October 19, 1988, some 2 to 2 1/2 years later, a prioritization list of 563 roads in need of a guardrail was published. The ranking is according to need; 1 being high and 563 being low. 154th Place S.E. is number 376 on the list. As of July 16, 1992, the date Mr. Haff signed the affidavit, King County had completed approximately the first 50 roadways on the list.

The trial court granted King County's motion for summary judgment and denied a partial summary judgment that Ruff was free from negligence. The Court of Appeals reversed the trial court's grant of summary judgment on the issue of legal causation concerning the condition of the roadway and affirmed the denial of Ruff's motion for summary judgment. ¹ Ruff v. King Cy., 72 Wash.App. 289, 300, 865 P.2d

                5 (1993).  The matter was remanded for further proceedings.  Ruff, at 300, 865 P.2d 5.   King County appeals to this court on grounds that (1) it has breached no duty owed to the Ruff;  (2) its conduct is not the proximate cause of Ruff's injuries;  and (3) it is immune from suit because its decision not to install a guardrail at the accident site was discretionary
                

ANALYSIS

King County argues that it is entitled to summary judgment, dismissing it from liability as a matter of law for it did not breach any duty owed to Ruff, nor was its conduct the legal cause of Ruff's injuries.

Ruff insists that King County failed to correct a known hazard. Specifically, Ruff contends that the lateral area where Kennedy's car left the road was inadequate and irregular and a guardrail was needed to compensate for these defects. Ruff argues that summary judgment is not appropriate since these factors raise issues of fact as to King County's negligent maintenance of 154th Place S.E.

This court has stated that a summary judgment motion under CR 56(c) may be granted if the pleadings, affidavits, and depositions before the trial court establish that there is no genuine issue of material fact and that as a matter of law the moving party is entitled to judgment. Dickinson v. Edwards, 105 Wash.2d 457, 461, 716 P.2d 814 (1986); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). The reviewing court must take the position of the trial court and assume facts most favorable to the nonmoving party. Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985); Braegelmann v. County of Snohomish, ...