Williams v. King Cnty.
| Decision Date | 02 August 2021 |
| Docket Number | 81075-8-I |
| Court | Washington Court of Appeals |
| Parties | DEIRTRA WILLIAMS, as personal representative of the ESTATE OF DEIDRA L. CLARK; A.M.C., a minor child; DEIRTRA CLARK, a single person; NORMAN DEVOE, a single person; R.E.A., a minor child, Appellants, v. KING COUNTY, a municipal corporation; CANDLEWOOD RIDGE HOMEOWNER'S ASSOCIATION (d/b/a CANDLEWOOD RIDGE/CARRIAGE WOOD HOMEOWNER'S ASSOCIATION), a Washington nonprofit corporation; CANBER CORPORATION, a Washington corporation, ISSAQUAH TREE CARE LLC, a Washington corporation, |
UNPUBLISHED OPINION
Appellants sued King County for various forms of negligence after a tree fell across a road onto a passing car killing the driver and injuring a passenger. Appellants challenge the trial court striking a portion of their expert's report, striking a Google image of the tree, and granting of summary judgment to the County. Finding no error, we affirm.
On November 13, 2017, Deidra Clark was driving along SE 179th Street near the Candlewood Ridge development in unincorporated King County, Washington (County). Deidra's twin sister, Deirtra Clark, was in the front passenger seat; Deidra's daughter, four-year-old A.M.C was in the back seat.[1]According to the County, the National Weather Service had a high wind warning in effect for that date, and the area was likely experiencing gale force winds with gusts of up to 35 to 45 miles per hour.
As the car neared the intersection of SE 179th Street and 159th Avenue SE, a black cottonwood tree (subject tree) fell on the car. Deidra was killed and Deirtra was injured. A.M.C. was not injured. Norman DeVoe was Deidra's fiancé and A.M.C.'s father. He arrived at the scene of the accident within minutes, saw his deceased fiancée, and looked for his daughter before realizing that she had already been removed from the car.
Deirtra Williams (mother of Deidra and Deirtra Clark) as personal representative of Deidra's estate, A.M.C., Deirtra Clark and Norman DeVoe sued King County, the Candlewood Ridge Homeowner's Association (HOA), and Canber Corporation (the HOA's landscaping contractor). For clarity, we refer to the plaintiffs collectively as Williams. The complaint raised three causes of action: negligence; negligent hiring training, retention and/or supervision; and negligent infliction of emotional distress. Williams subsequently amended their complaint several times, including adding defendant Issaquah Tree Care (contracted by the HOA to inspect and maintain trees on HOA property).[2] As litigation unfolded, the following facts and opinions were made part of the record.
The black cottonwood tree that fell was located on private property owned by the Candlewood Ridge Homeowner's Association. After the accident, King County Road Services Division vegetation specialist James Kotarski inspected the remaining stem, or trunk, of the subject tree from the County right-of-way. He said the stem was partially covered in English ivy and he saw a fungal "conk", or fruiting body, on the southwest side of the stem. Such conks usually indicate decay that structurally weaken the trunk of a tree.
An expert arborist for Williams, Galen Wright, inspected the remaining stem of the tree from the HOA's private property. He noted the English ivy partially covering the stem, three conks of stem decay fungi, some decay in one "lateral anchor root," and some bark separation just above the "root collar." According to Wright the black cottonwood tree species is prone to branch, stem, and root failures even in non-storm conditions. Both Kotarski and Wright agreed that the subject tree leaned over the road.
The County Road Services Division maintains a "Road Helpline" that allow citizens, County employees, and partner agencies to call and report concerns about county roadways, including "trees of concern," defined as standing trees on or near a county roadway that may pose a hazard. Prior to the accident, the County did not receive any reports about the subject tree.
In the 13 months prior to the accident, the County was aware of other trees that fell in the general vicinity. On January 20, 2017, another cottonwood tree on the same parcel of private property fell, which was located approximately 30-40 feet from the subject tree. In October 2016 and February 2017, two trees located about 0.6 miles away from the subject tree fell onto SE Petrovitsky Road. On November 8, 2017, two or three cottonwood trees[3] fell onto the County right-of-way at the intersection of SE Petrovitsky Road and 151st Avenue SE.
Defendant Candlewood Ridge Homeowner's Association moved to dismiss the claims of negligent infliction of emotional distress brought by DeVoe and A.M.C pursuant to CR 12(b)(6). The County joined the motion. The superior court dismissed DeVoe's claims for negligent infliction of emotional distress but not A.M.C.'s claims for the same.
The County moved for summary judgment. The County argued that its duty to maintain roads that are reasonably safe for ordinary travel did not extend to hidden dangerous conditions, which it did not create or have notice of, including decay in a tree located on private property. The County further argued that it did not have a legal duty to inspect all trees located near county roads in the absence of a complaint or other notice of concern about a particular tree. Last, the County argued that it enjoyed discretionary immunity.
Williams filed a written opposition to the County's motion for summary judgment and submitted a written report from Wright, a certified arborist and forester, and portions of his deposition testimony.
The County moved to strike (1) portions of Wright's opinions on the basis that they are speculative; and (2) a Google image of subject tree submitted by Williams in their opposition brief.
King County Superior Court held a hearing on the County's motion for summary judgment. At the conclusion of the hearing, the court granted summary judgment to the County ruling that the County did not have actual or constructive notice. The court struck the portions of Wright's opinion and the Google image that the County had objected to.
Williams appeals the order granting King County's motion for summary judgment and the earlier superior court order dismissing DeVoe's claims of negligent infliction of emotional distress.
Municipalities are generally held to the same negligence standards as private parties. Helmbreck v. McPhee, 15 Wn.App. 2d 41, 50, 476 P.3d 589 (2020). Thus, to bring a negligence claim against King County, Williams must be able to prove duty, breach, causation, and injury. Id. The existence and scope of a duty are questions of law. Wuthrich v. King County, 185 Wn.2d 19, 25, 366 P.2d 926 (2016).
We review summary judgments de novo. Strauss v. Premera Blue Cross, 194 Wn.2d 296, 300, 449 P.3d 640 (2019). "Summary judgment is appropriate when 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Id. (alteration in original) (quoting Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008)); CR 56(c). We must construe all facts and inferences in favor of the nonmoving party. Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (2014). "A genuine issue of material fact exists when reasonable minds could differ on the facts controlling the outcome of the litigation." Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484 258 P.3d 676 (2011).
Appellants argue that the trial court erred by striking a portion of Wright's expert report and a photograph that they included in their brief to the trial court in opposition to summary judgment, which they described as a Google image of the subject tree taken six years before the accident.
We review these trial court evidentiary decisions de novo. See Momah v. Bharti, 144 Wn.App. 731, 182 P.3d 455 (2008) ().
As a preliminary matter, appellants contend that the superior court did not specify which of Wright's opinions should be stricken and that if the case proceeded to trial, it would be unclear which "portions" of Wright's opinions were stricken. Appellants contend that this lack of clarity alone justifies reversal of the superior court's decision to strike. Id.
The superior court's ruling was not so vague as to merit reversal on that basis. The County's motion to strike identified the following portion of Wright's opinion that the County argued was too speculative: In its oral ruling, the superior court said it was striking Wright's The court's written order stated that the County's motion to strike was granted. The record is sufficiently clear that the superior court struck the portion of Wright's opinion that the County identified as too speculative and any deposition testimony that stated the same.
Next appellants argue that Wright's opinion was not impermissibly speculative. An expert's opinion must be based on fact and cannot simply be a conclusion...
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