Tolliver v. United States

• Decision Date: 03 August 2012
• Docket Number: No. 10–cv–5056–RBL.,10–cv–5056–RBL.
• Citation: 957 F.Supp.2d 1236
• Parties: Marla TOLLIVER, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

957 F.Supp.2d 1236

Marla TOLLIVER, et al., Plaintiffs,

v.UNITED STATES of America, et al., Defendants.

No. 10–cv–5056–RBL.

United States District Court,

W.D. Washington,

at Tacoma.

Aug. 3, 2012.

Karen L. Unger, Jane E. Dale, Karen L. Unger, PS, Port Angeles, WA, Kathleen A. Shea, Richard Lawrence Martens, Rose K. McGillis, Steven A. Stolle, Martens Associates PS, Seattle, WA, for Plaintiffs.

J. Michael Diaz, Priscilla To–Yin Chan, United States Attorney's Office, Angela Marshlain, Duncan K. Fobes, Michael T. Kitson, Michael Alexander Patterson, Patterson, Buchanan, Fobes, Leitch & Kalzer, PS, Seattle, WA, Gregory John Wall, Wall Liebert & Lund PS, Port Orchard, WA, for Defendants.

ORDER ON SUMMARY JUDGMENT

RONALD B. LEIGHTON, District Judge.

On March 17, 2007, a group of teenagers spent an evening drinking and socializing at a home on the Lower Elwha Indian Reservation. In the early morning hours, seven of the revelers piled into a car to head home. Two—Ronald Scroggins and Vanna Francis—would never arrive. Plaintiffs are the parents and estates of the two deceased teenagers. They argue that their children's deaths were caused in part by a lack of signs and lighting on a dangerous road—errors for which Clallam County and the federal government should answer. Plaintiffs have moved for partial summary judgment, asking the Court to rule that the County and the United States breached their duties to maintain safe roads and thereby caused the accident.

In response, Clallam County and the United States each argues that the other owns the portion of road on which the accident occurred, and thus, the duty lay elsewhere. Further, the County argues that the road was properly signed, and that in any event, road conditions did not cause the accident—intoxication did.¹ By all accounts, the driver of the vehicle, Defendant Sela Kalama, was severely impaired.

After reviewing all briefing and evidence submitted, the Court grants summary judgment to Clallam County and the United States. This is a tragic story, but neither the County nor the United States had a duty to maintain the road in 2007, and in any event, no reasonable factfinder could conclude that this accident was caused by anything other than alcohol, an automobile, and a disastrous teenage disregard for danger.

I. Facts

A. The Accident

The night began as many do: a flurry of phone calls, a gathering of friends, laughing,drinking. A group of teens met early in the evening at a tribal boat launch, where the Lower Elwha Road runs straight into the Elwha River. Amongst the group were Jolene Barkley, Darryl Svec, and Sela Kalama. Ms. Barkley testified at deposition that Ms. Kalama drove her to the river, where they met a second car of friends. (Fobes Decl., Ex. 4, Dkt. # 91 at 51 (Excerpt of Barkley Dep., 22:4–23); ²see also Ex. 5 (Excerpt of Svec Dep., 23:20; 24:23–25)).³ Mr. Svec, a member of the group already at the river, testified that the earlier-arriving car had nearly driven off the end of the road and into the water—an incident witnessed by Ms. Kalama. Id.

The group then reconvened at a friend's house for an evening of drinking-heavy drinking. Indeed, Tamera Luce stated that everyone at the party was noticeably drunk. ( Id., Ex. 5 (Excerpt of Luce Dep., 15:11–13) (“Q. When you say “a lot,” were people noticeably drunk? A. Yeah, stumbling.”)). A number of partygoers were smoking marijuana. ( Id., Ex. 4, 28:8–25 (Barkley Dep.); Ex. 5, 28:22–29:4 (Svec Dep.)).

The party began to break up somewhere around 2:00 in the morning. Ms. Kalama offered to drive. Mr. Svec described Ms. Kalama's state of extreme intoxication:

A. [S]he was drinking a lot. She was ... one-eyeing it.

Q. When you say that, what do you mean?

A..... [S]he was sitting at her, at her car, you know, one eye on her phone so that she could concentrate. That's how ... messed up she was.

(Fobes Decl., Ex. 5, 27:22–28:3 (Svec Dep.)). Ms. Barkley echoed the point:

Q. And did you see Sela drinking that night?

A. Yes.

Q. And do you know how much she had to drink?

A. No, I don't know for sure, but I know that we were both really intoxicated....

A. And Sela is like, “I'll drive, I'll drive.” She's like staggering ....

( Id., Ex. 4, 25:24–25:3; 29:10–15 (Barkley Dep.) (emphasis added)). Another friend even begged Ms. Barkley not to get into the car:

[He] was like freaking out and was like, “Don't drive, no, don't drive, don't leave, don't leave,” freaking out. He was like in my face.

....

He was like, “No, please, Jojo, no, please.” He was like begging me not to get in that car.

( Id., Ex. 4, 29:13–23 (Barkley Dep.)). Ms. Kalama even sent a text message approximately an hour and a half before the accident that said, “I'm drunk.” (McGillis Decl., Ex. 1 at 6, Dkt. # 80 (Plea Agreement)). She admitted that she “knew she was ‘impaired’ ” to police after the accident. ( Id.) Despite Ms. Kalama's clear intoxication, Ms. Barkley and Mr. Svec got into the front seat; in the back were Tamera Luce, Brian Svec, Ronald Scroggins and Vanna Francis. ( Id., Ex. 6, 17:14–21 (Luce Dep.)).

The group decided to return to the river, the site of the earlier near-accident. While driving, Ms. Kalama was apparently reading text messages on her phone and could barely keep the car on the road:

[S]he was on her phone and she swerved in the ditch. I was like, “What the ____ are you doing? Get off your phone.” I said, You ain't doing that ... with me in the car.”

She's like, “I'm good, I'm good. Okay, I'll put it away.”

I was like, “I'm serious. Put that away, dude.” I was like, You're all f____d up.” ... And she put it down. Two minutes later, she gets another text and she's back on the phone.

( Id., Ex. 5, 32:17–33: 2 (Svec Dep.)). Ms. Barkley also stated that Ms. Kalama was looking at her phone and almost ran into a tree. ( Id., Ex. 4, 32:13–14 (Barkley Dep.)).

Everybody was yelling at her by then. It was like, “Get off your phone.”

She was like, “I'm fine, I'm fine.”

Then she shut it just to pretty much shut everybody up. Darryl was like, “Let me drive. Stop. Let me drive. Let me drive.”

( Id., Ex. 4, 32:16–21 (Barkley Dep.)).

Ms. Kalama was also speeding. As Mr. Svec relates: “We were going like at least—she was going fast, man. I tried telling—like she was at least going 30, 35[mph] I remember. She was going way faster than—way faster than Gabby and them was. I remember that.” ( Id., Ex. 5, 34:7–11 (Svec Dep.)). Ms. Kalama admitted the same. (McGillis Decl., Ex. 1 at 6, Dkt. # 80 (Plea Agreement)). And no one was wearing seatbelts. ( Id., Ex. 5, 34:1–4 (Svec Dep.) (“Q. [D]id anybody put on seat belts? A. No. Too many bodies in the car.”)).

As Ms. Kalama drove down the road, highbeams on, she passed a Pavement Ends sign and a Dead End sign; the marked lanes disappeared, brush began to encroach, the road narrowed and turned to gravel. ( See Ballard Decl. ¶¶ 8–10.) Ms. Kalama was expecting Mr. Svec to tell her when to stop. (McGillis Decl., Ex. 2, 88:17–23, Dkt. # 80). The passengers yelled at her, Mr. Svec rolled down his window. It was too late. The car pitched from the road into the river. The seven teens attempted to get out as water rushed in. Ronald Scroggins and Vanna Francis did not survive.

The first officer responding to the scene “observed a pair of tracks that went up to the water's edge,” but “there were no signs of braking.” (McGillis Decl., Ex. 16, Dkt. # 80 (police report) (emphasis added)).⁴

In December 2007, Sela Kalama pled guilty to involuntary manslaughter. (McGillis Decl., Ex. 1, Dkt. # 80 (Plea Agreement)).

Plaintiffs highlight a few ultimately immaterial factual issues. First, contrary to Ms. Barkley and Mr. Svec's accounts, Ms. Kalama states that she had never been to the river before driving into it (i.e., she had not been to the river earlier that evening). (Pl.'s Reply to County's Cross Mot. for Summ. J. at 15, Dkt. # 104.) In her plea agreement, however, she “acknowledges that witnesses would testify” that she had been to the river earlier that evening, had driven to within “10–20 feet of the river's edge,” and had discussed how the earlier car “had stopped ... just before driving into the river.” (McGillis Decl., Ex. 1 at 7, Dkt. # 80 (Plea Agreement)). Second, Ms. Kalama has stated that she did not have 14–16 beers prior to the accident, as she told police. Rather, she had only 4–6 drinks. ( Id. at 16.) Notably, while Ms. Kalama's statements waver on the number of drinks she consumed, Ms. Kalama does not appear to have ever asserted that she was sober on that evening. Plaintiffs' expert medical witness, Dr. Jennifer E. Souders, was able to conclude only that one could not objectively determine Ms. Kalama's blood-alcohol concentration (“BAC”) at the time of the accident.⁵ (Supp. McGillis Decl., Ex. 6 at 3, Dkt. # 105 (Report of Dr. Souders)). Lastly, Ms. Kalama said at deposition that she wasn't “texting,” rather she just “flipped [her] phone open, and then I just quickly put it back under my leg.” (McGillis Decl., Ex. 2, 88:9–13, Dkt. # 80 (Kalama Dep.)).

B. The Lower Elwha Road

Because Plaintiffs assert that the lack of signs and lighting caused, as least in part, the deaths of Mr. Scroggins and Ms. Francis, it is important to understand the road's layout and its history of ownership.

1. Layout of the Lower Elwha Road

The Lower Elwha runs east-west, a straight shot running directly into the river. It has two lanes, but narrows to one-and-a-half lanes about a half mile before its end. The road is paved up to 93 feet before the river's edge, at which point it turns to gravel. ( See Pl.'s Mot. for Partial Summ. J. at 4.)

IMAGE

(Pl.'s Mot. for Partial Summ. J., Appx. A, Dkt. # 79–1 (Map of Lower Elwha Road)).

Until somewhere between 2001 and 2003, the County maintained a gravel berm at the end of the road. Then, members of the Lower Elwha tribe demanded that the berm be removed because it interfered with the boat launch. (McGillis Decl., Ex. 11 at 16, Dkt. # 80 (Dep. of former County road...