DocketNumber: 71535-6
Filed Date: 4/27/2015
Status: Non-Precedential
Modified Date: 4/27/2015
o ro coo IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON en ^ ^ 3> zo —1—1 DIVISION ONE 5» -o rn o ro O-ri -~*~\ ro ~y- JOHNNY FERARA, No. 71535-6- —j ^a-ol 3>-U' Appellant, zr KD cn<^ ** -HO156 Wash. 2d 168 , 177,125 P.3d 119(2005). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Mossman v. Rowley,154 Wash. App. 735, 740,229 P.3d 812(2009). A defendant can move for summary judgment by showing that there is an absence of evidence to support the plaintiff's case. Young v. Key Pharm., Inc.,112 Wash. 2d 216, 225,770 P.2d 182(1989) (citing Celotex Corp. v. Catrett.477 U.S. 317, No. 71535-6-1/4 322,106 S. Ct. 2548,91 L. Ed. 2d 265(1986)). If the defendant shows an absence of evidence to establish the plaintiff's case, the burden then shifts to the plaintiff to set forth specific facts showing a genuine issue of material fact for trial.Young, 112 Wash. 2d at 225. A material fact is one that affects the outcome of the litigation. Eicon Constr., Inc. v. E. Wash. Univ.,174 Wash. 2d 157, 164,273 P.3d 965(2012). While we construe all evidence and reasonable inferences in the light most favorable to the nonmoving party, ifthe plaintiff" 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,'" summary judgment is proper. Jones v. Allstate Ins. Co.,146 Wash. 2d 291, 300,45 P.3d 1068(2002V.Young. 112 Wash. 2d at 225(quotingCelotex, 477 U.S. at 322). The nonmoving party may not rely on speculation or "mere allegations, denials, opinions, or conclusory statements" to establish a genuine issue of material fact, intl Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co..122 Wash. App. 736, 744,87 P.3d 774(2004) (citing Grimwood v. Univ. of Puoet Sound. Inc.,110 Wash. 2d 355, 359,753 P.2d 517(1988)). Supporting affidavits must contain admissible evidence that is based on personal knowledge.Grimwood, 110 Wash. 2d at 359. A party's self-serving opinion and conclusions are insufficient to defeat a motion for summary judgment.Grimwood, 110 Wash. 2d at 359-61. There is no dispute that Rich's vehicle was proceeding straight through the intersection and Tyler's vehicle was turning left. As a matter of law under RCW 46.61.185, Rich was the favored driver and Tyler was obligated to "yield the right-of-way to any vehicle approaching from the opposite direction." See Mossman, 154Wn. App. at 740-41. Because Tyler had the "primary duty to avoid a collision," he was required to 4 No. 71535-6-1/5 yield even if" 'the oncoming vehicle was proceeding unlawfully.'" Mossman, 154 Wn. App. at 740 (quoting Dohertv v. Mun. of Metro. Seattle.83 Wash. App. 464, 470, 921 P.2d 1098(1996)). As the favored driver, Rich was entitled to rely on the reasonable expectation that Tyler would yield the right-of-way until she reached the "point of notice." Whitchurch v. McBride.63 Wash. App. 272, 276,818 P.2d 622(1991); Channel v. Mills,77 Wash. App. 268, 278-79,890 P.2d 535(1995). The "point of notice" is "that point at which a reasonable person exercising reasonable care would realize that the disfavored driver is not going to yield."Whitchurch, 63 Wash. App. at 276. To establish that Rich's speed was a cause in fact of the accident, Ferara must prove that "but for excessive speed, the favored driver, between the point of notice and the point of impact, would have been able to brake, swerve or otherwise avoid the point of impact."Channel, 77 Wash. App. at 278-79. As a threshold, Ferara must produce "evidence showing the approximate location" of the point where Rich "would have perceived danger."Whitchurch, 63 Wash. App. at 276-77;Channel, 77 Wash. App. at 278- 79. Ferara must also show that if Rich had been driving at or below the speed limit, she could have "stopped or otherwise avoided the collision" after passing the point of notice.Channel, 77 Wash. App. at 274-75. The only evidence Ferara submitted was his own declaration containing only self- serving opinions and conclusory assertions. The declaration states, in pertinent part: 9. It seemed to me, on a more likely than not basis, that Rich was traveling at a speed greater than prudent when the collision occurred. 10. Had she slowed just a little, she would have avoided the collision with Tyler's car. 11. It seemed to me that there was ample opportunity for Rich to stop once she realized Tyler Ferara was turning in front of her, but failed to do so. No. 71535-6-1/6 12. Rich could have also attempted to move out of the lane briefly to avoid the collision, however she failed to do so. " The whole purpose of summary judgment procedure would be defeated if a case could be forced to trial by a mere assertion that an issue exists without any showing of evidence.'" Meissner v. Simpson Timber Co..69 Wash. 2d 949, 956,421 P.2d 674(1966) (quoting Reed v. Streib.65 Wash. 2d 700, 706,399 P.2d 338(1965)). Although the issue of negligence "is generally one for the jury to determine," summary judgment may be appropriate when "all reasonable minds would agree" that the favored driver "exercised the care which a reasonably prudent [person] would have exercised for his [or her] own safety under the circumstances." Bauman v. Complita,66 Wash. 2d 496, 497-98,403 P.2d 347(1965). Because Ferara failed to provide any factual evidence tending to establish Rich's speed, the approximate location of the point of notice, or her ability to brake or swerve between the point of notice and the point of impact, there is no genuine issue of material fact as to whether Rich was negligent. The court did not err in granting the motion for summary judgment. Qf)< ^qh jr~ WE CONCUR:
Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )
Bauman v. Complita , 66 Wash. 2d 496 ( 1965 )
Korslund v. Dyncorp Tri-Cities Services , 125 P.3d 119 ( 2005 )
Jones v. Allstate Ins. Co. , 45 P.3d 1068 ( 2002 )
Grimwood v. University of Puget Sound, Inc. , 110 Wash. 2d 355 ( 1988 )
Reed v. Streib , 65 Wash. 2d 700 ( 1965 )
Channel v. Mills , 77 Wash. App. 268 ( 1995 )
Whitchurch v. McBride , 63 Wash. App. 272 ( 1991 )
Meissner v. Simpson Timber Co. , 69 Wash. 2d 949 ( 1966 )
Elcon Construction, Inc. v. Eastern Washington University , 174 Wash. 2d 157 ( 2012 )
IUI v. St. Paul Fire & Marine Ins. Co. , 87 P.3d 774 ( 2004 )