Daniel Lamont v. David M. Savio ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DANIEL LAMONT, a single man,
) No. 71465-1-1
Appellant,
) DIVISION ONE
v.
) UNPUBLISHED OPINION
DAVID M. SAVIO and BAOYE WU SAVIO, / «*o _°
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husband and wife and the marital ) en
community comprised thereof; QUORUM ^
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REAL ESTATE PROPERTY ) SO °°
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MANAGEMENT, INCORPORATED, a ) cn
Washington corporation; and JANE and / 3*
JOHN DOE OTHER ENTITES, ) ~3: " ^ IT*-
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FILED: April 6,2015 *&
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Respondents. ) €3 a=<
Appelwick, J. — Lamont appeals the summary judgment dismissal of his personal
injury suit against his landlords, the Savios and Quorum Real Estate. Lamont was
seriously injured after he fell down the stairs of his rented home. He does not demonstrate
a prima facie claim that the stairs were the cause in fact of his fall. We affirm.
FACTS
In 2002, David and Baoye Wu Savio purchased a house in the Magnolia area of
Seattle. The Savios lived overseas, so they hired Quorum Real Estate Property
Management, Inc. to manage the house as a rental property. The house was built in
1941. There is a carpeted stairway that leads from the main floor to the basement level.
In April 2012, Daniel Lamont met with a broker from Quorum about renting the
Magnolia house. Lamont and the broker did a walk-through of the property. Lamont
traversed the main stairway at least once during the walk-through. On April 20, 2012,
Daniel Lamont executed a lease to rent the Magnolia house.
No. 71465-1-1/2
Lamont moved in at the end of May 2012. He used the basement as a work area
for his photography business. Lamont used the staircase "fairly frequently" to access the
photography equipment and laundry area in the basement. Lamont noticed that the stairs
were somewhat steep and narrow, and he described them as "a little funky."
On August 3, Lamont went to walk downstairs to work on a project. He took one
step down the stairs and, as he proceeded to take a second step, he "had no footing. I
was just in the air. I had this incredibly eerie sense of pitching head over heels through
the air." This was the last thing Lamont remembered. He lay unconscious at the bottom
of the stairs for one and a half to two hours. When he awoke, he drove himself to the
emergency room. He suffered a concussion and several fractures to his arm and skull.
He subsequently suffered headaches, dizziness, memory loss, fatigue, and problems
concentrating and focusing.
On January 29, 2013, Lamont sued the Savios and Quorum, alleging breach of the
rental agreement, violations of the Residential Landlord Tenant Act of 1973, ch. 59.18
RCW, negligence and nuisance, and breach of the implied warranty of habitability. On
August 30, the Savios and Quorum moved for summary judgment. They argued that
there was no evidence to support any of Lamont's claims. The trial court concluded that
the defendants did not owe a duty to Lamont. It granted the defendants' motion and
dismissed Lamont's suit on December 18, 2013.
Lamont appeals.
DISCUSSION
We review summary judgment orders de novo. Hadlev v. Maxwell, 144 Wash. 2d
306, 310, 27 P.3d 600 (2001). Summary judgment is appropriate only where there are
No. 71465-1-1/3
no genuine issues of material fact and the moving party is entitled to judgment as a matter
of law. CR 56(c); Peterson v. Groves. 111 Wash. App. 306, 310,44 P.3d 894 (2002). When
considering the evidence, we draw reasonable inferences in the light most favorable to
the nonmoving party. Schaafv. Hiqhfield, 127 Wash. 2d 17, 21, 896 P.2d 665 (1995). If a
plaintiff fails to make a showing sufficient to establish the existence of an element
essential to that party's case, summary judgment is appropriate. Hiatt v. Walker
Chevrolet Co., 120 Wash. 2d 57, 66, 837 P.2d 618 (1992). We may affirm on any basis
supported by the record. State v. Norlin. 134 Wash. 2d 570, 582, 951 P.2d 1131 (1998).
"The mere occurrence of an accident and an injury does not necessarily lead to an
inference of negligence." Marshall v. Ballv's Pacwest, Inc., 94 Wash. App. 372, 377-78, 972
P.2d 475 (1999). To prove actionable negligence, a plaintiff must establish the existence
of (1) a duty owed by the defendant to the plaintiff to conform to a certain standard of
conduct; (2) a breach of that duty; (3) a resulting injury; and (4) proximate cause between
the breach and the injury. Cameron v. Murray, 151 Wash. App. 646, 651, 214 P.3d 150
(2009).
Proximate cause has two elements: cause in fact and legal causation. Daugert v.
Pappas, 104 Wash. 2d 254, 257, 704 P.2d 600 (1985). Cause in fact is ordinarily a question
for the jury. Bauqhn v. Honda Motor Co., Ltd., 107 Wn.2d 127,142, 727 P.2d 655 (1986).
However, when the facts are undisputed and the inferences therefrom are plain and
incapable of reasonable doubt or difference of option, factual causation may become a
question of law for the court, jd. The court will decide the question of factual causation
as a matter of law only if the causal connection is so speculative and indirect that
No. 71465-1-1/4
reasonable minds could not differ. Moore v. Hagge, 158 Wash. App. 137, 148, 241 P.3d
787(2010).
Circumstantial evidence is sufficient to establish a prima facie case of negligence
if a reasonable person could conclude that there is a greater probability than not that the
conduct relied upon was the proximate cause of the injury. Hernandez v. W. Farmers
Ass'n, 76 Wash. 2d 422, 425-26, 456 P.2d 1020 (1969). The nonmoving party may not rely
on mere speculation or argumentative assertions that unresolved factual issues remain.
Marshall, 94 Wash. App. at 377. A cause of action may be said to be speculative when,
from a consideration of all of the facts, it is as likely that it happened from one cause as
another. Rasmussen v. Bendotti, 107 Wash. App. 947, 959, 29 P.3d 56 (2001).
Here, the evidence before the trial court regarding Lamont's fall consisted of two
expert declarations and Lamont's deposition. Lamont submitted declarations from
Joellen Gill, a human factors and certified safety professional, and Dr. Toby Hayes, Ph.D.,
a biomechanics and bioengineering expert. The declarations established that the first
step of the subject staircase had a run of 10 inches and the second had a run of 8 3A
inches. The first step had a rise of 7 1/4 inches and the second had a rise of 8 inches.
This showed that the first step complied with current Seattle Building Code requirements,
but the second step did not. See Seattle Municipal Code 22.206.130(A)(1) ("All
stairs . . . shall have a minimum run of 10 inches and a maximum rise of 7 ZA inches.").
Gill opined that the second stair's lack of compliance created an unreasonable
hazard and put Lamont at risk for stairway falls. She explained that excessively steep
steps such as these can cause a person to roll or slip offthe edge of a noncompliant stair:
No. 71465-1-1/5
The reason such a stairway design is particularly hazardous is because of
the propensity to overstep the target tread when descending. That is,
because the riser heights are taller than permitted, the tendency is for our
leading foot to strike the target tread with greater speed and force and also
to strike the target tread further ahead [and] because the tread depths are
more shallow than permitted when the leading foot strikes the target tread
it can overhang the front of the tread. Iftoo much of the foot overhangs the
tread then the tendency is for the foot to roll or slip off the tread nosing.
Gill stated that this defect caused Lamont to fall as he was stepping from the first to
second step. Gill also observed that the stairs were covered in loose carpeting, which
exacerbated the tendency for Lamont's foot to roll or slip off the tread nosing
Dr. Hayes's declaration reiterated that Lamont's contact with the defective second
step caused his fall:
When Mr. Lamont attempted to place his leading toe near the stair edge
and began to shift his body's weight to that foot, the excessively short tread
increased the likelihood of overstepping the nosing. Overstepping is known
to produce falls due to the foot slipping or rotating over the edge of the tread
nosing during weight acceptance or toe-off. In addition, the loose carpeting
created an unstable surface on which the ball of his foot was placed.
Dr. Hayes concluded that "when Mr. Lamont stepped onto the short and unstable surface
of the stair tread, he lost his balance, resulting in a forward fall."
Accordingly, Lamont's theory of causation depends on his foot hitting the tread of
the second stair and that tread's defect causing the fall. But, Lamont's own testimony
does not put him on the second step, which the experts say was defective and caused
his fall. In his deposition, Lamont repeatedly stated that he made contact with the first
stair and then became airborne:
I take - - took a step down the stairs, and I - - and I - - as I proceeded to take
another step downstairs, I had this - -1 had no footing. I was just in the air.
I had this incredibly eerie sense of pitching head over heels through the air.
No. 71465-1-1/6
Lamont said that he "was aware of coming in and taking a step down the stairs, and then
I was aware of a very, very disconcerting feeling that my feet were above my head and
this was not good." Lamont had been up and down the stairs many times before and
said, "It didn't seem like anything was happening differently. Ijust was not able - -1 put a
foot down to - - and I didn't have footing." Counsel acknowledged that "it sounded like
you got a first foot down on the first step but from there there was just air?" Lamont
replied, "Yeah. I was just pitching - - that's all I recall is that - - that I started down the
stairs and then I was airborne." Lamont did not recall anything further.
To survive summary judgment, Lamont must establish specific and material facts
tending to show that it is more probable than not that the defective second step caused
him to fall. See Hiatt, 120 Wash. 2d at 66; Rasmussen, 107 Wash. App. at 959. But, his
deposition testimony does not suggest that he made contact with the second step. If
Lamont failed to make contact with the second step, neither loose carpet on the step nor
overstepping and slipping off the step—as opined by his experts—could have caused the
fall. His testimony does not create an inference that the step's defect was the reason he
failed to make contact with it or the reason he fell.
This is analogous to Marshall, where the plaintiff was able to provide only a
speculative theory of proximate cause. 94 Wash. App. at 380. Marshall was injured while
exercising on a treadmill at her health club. ]d. at 375. She alleged that the treadmill
started at an unexpectedly high speed and threw her off. ]d_. However, due to her injury,
she did not actually remember how the accident happened. Id. at 375-76. The Court of
Appeals found that summary judgment was proper, because "Marshall provides no
No. 71465-1-1/7
evidence that she was thrown from the machine, what caused her to be thrown from the
machine, or how she was injured." Id. at 379-80.
Here, Lamont can show that he fell down the stairs and that he was injured by the
fall. He can establish at least an inference that one of the steps was defective and that
such defects pose a risk of falling. Importantly, however, nothing on this record makes it
more likely than not that the second step caused Lamont to fall. The evidence of
causation is inadequate to withstand summary judgment.1
We need not address the bases upon which Lamont asserts that the defendants
owed him a duty. We need not address the defendants' challenge to Lamont's expert
declarations.
We affirm.
WE CONCUR:
/\T\ 173 Wash. App. 410, 415-16, 293 P.3d 1290 (2013). However, the
parties do not brief this case. We likewise do not address it.