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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JEFFREY BURKE and KIMBERLY
BURKE, a married couple,                            No. 72858-0-I


                       Appellants,                  DIVISION ONE


      v.

                                                    UNPUBLISHED OPINION
DALYNNE SINGLETON, as Personal
Representative of the ESTATE OF
CHARLES ELFRINK-THOMPSON,
deceased, and THE CITY OF
SEATTLE, a municipal corporation,
and JOHN DOES and JANE DOES
1 through 10, inclusive,

                       Respondents.                 FILED: January 19, 2016


       Leach, J. — Jeffrey and Kimberley Burke appeal the trial court's summary

dismissal of their negligence suit against the City of Seattle and the estate of its

deceased employee Charles Elfrink-Thompson (collectively City). Jeffrey Burke

suffered injuries when a truck driven by Elfrink-Thompson crossed the center line

and struck Jeffrey's1 van while rounding a curve in the opposite direction. Elfrink-

Thompson suffered a traumatic brain injury and died the next day.

       The Burkes offer three reasons for reversing the trial court: first, res ipsa

loquitur supplies an inference of negligence in this case; second, the testimony of

their expert witness establishes Elfrink-Thompson's negligence as the cause of

           For clarity, we refer to Mr. Burke individually by his first name.
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the collision; and third, for the first time in their reply brief, Elfrink-Thompson's

undisputed violation of traffic laws provides evidence of negligence, precluding

summary judgment. The City disputes these claims and also asserts sudden

incapacity as an alternative reason to affirm the trial court.

       Much of the parties' briefing addresses res ipsa loquitur, but this case

does not involve any "peculiar and exceptional" facts to which the doctrine

properly applies. We reject res ipsa loquitur as a basis for reversal.

       The Burkes contend the trial court erred by excluding testimony from their

accident reconstructionist, Steve Harbinson, which demonstrated that Elfrink-

Thompson probably caused the accident because he was speeding or distracted.

Because Harbinson applied his expertise as an accident reconstructionist to the

evidence to reach this conclusion, the trial court abused its discretion in

excluding Harbinson's testimony.

       Normally, this court declines to consider arguments raised for the first time

in a reply brief. We do so here because the ends of justice require it. Both

Jeffrey's testimony and that of the accident investigator showed that Elfrink-

Thompson violated traffic laws before and during the accident.             Although

Washington has eliminated negligence per se, evidence of a statutory violation

still provides evidence of negligence.      Therefore, the Burkes demonstrated a

genuine issue of material fact as to breach preventing summary judgment.

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       Finally, the City contends it has a complete defense of sudden incapacity

based on testimony that Elfrink-Thompson likely suffered a mild heart attack just

before the accident. But because testimony from the Burkes' expert establishes

a genuine issue of material fact, we disagree. We reverse and remand for further

proceedings.

                                     FACTS


      On April 21, 2010, a truck driven by Charles Elfrink-Thompson collided

with a van driven by Jeffrey Burke on Olsen Place SW in West Seattle. Elfrink-

Thompson lost control of his vehicle, which rotated as it drifted across the center

line. The City-owned truck appeared to be "fishtailing" on wet pavement. Jeffrey

was unable to avoid the truck, which collided with his van.      Elfrink-Thompson

suffered a traumatic brain injury and died the next day. The City concedes that

Elfrink-Thompson was a City employee acting within the course and scope of his

employment.

      The Seattle Police Department Traffic Collision Investigation Squad

(TCIS) investigated the collision.    It found signs consistent with the above

account: a 41-foot-long tire mark running from Elfrink-Thompson's lane, crossing

the center line, and ending where the vehicles came to rest, and a scuff mark

where Elfrink-Thompson lost control of the truck. But the TCIS detectives could

not determine the reason Elfrink-Thompson lost control. The truck's sensing and
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diagnostic module did not record any data on the truck's braking and throttle

functions and so did not indicate the truck's speed immediately before impact.

No one saw Elfrink-Thompson's behavior before the collision.              A forensic

examination showed his cell phone was not in use, and a toxicology report came

up negative for drugs and alcohol. A mechanic found no defects in the truck's

brakes, tires, suspension, or steering.

      The Burkes obtained the opinion of an expert, Steve Harbinson, about the

causes of the       accident.    Harbinson      is   a   police officer and   accident

reconstructionist for the Edmonds Police Department.             Harbinson reviewed

documents on the crash and statements by Jeffrey.            From this review and his

experience, he concluded that Elfrink-Thompson probably lost control of the truck

because he was distracted or driving too fast.

       The City offered testimony from Carol Buchter, a cardiologist who

reviewed the accident records and Elfrink-Thompson's medical records and

autopsy report.      Dr. Buchter opined that these records indicated Elfrink-

Thompson had suffered a myocardial injury by the time he died.            Dr. Buchter

concluded that Elfrink-Thompson probably lost control of the truck after a

myocardial infarction rendered him unconscious.

       In response, the Burkes submitted a declaration by Marshall Corson, a

cardiologist at Harborview Medical Center (HMC), where Elfrink-Thompson was

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treated.   Corson "check-read" Elfrink-Thompson's electrocardiogram (ECG)

report in the course of checking all 100 or so reports generated by HMC's ECG

machines that day. Corson had no contact with Elfrink-Thompson or the trauma

team treating him.     After reviewing Elfrink-Thompson's medical records, Dr.

Buchter's declaration, and the police collision report, Dr. Corson concluded that

Elfrink-Thompson likely did not suffer a myocardial infarction before the crash

and that his traumatic brain injury probably explained the data Dr. Buchter relied

on.



       The trial court granted the City's motion for summary judgment, and the

Burkes appeal.

                              STANDARD OF REVIEW


       An appeal of a summary judgment presents a question of law this court

reviews de novo.2 Summary judgment is appropriate if there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law.3

We view facts in the light most favorable to the nonmoving party.4 The purpose

of summary judgment is not to cut litigants off from their right of trial by jury but to

determine ifthey really have evidence to offer at trial.5 Whether res ipsa loquitur


       2 Osborn v. Mason County. 157 Wn.2d 18, 22, 134 P.3d 197 (2006).
       3 CR 56(c); Osborn. 157 Wn.2d at 22.
       4 Osborn. 157 Wn.2d at 22.
      5 Keck v. Collins. 184 Wn.2d 358, 369, 357 P.3d 1080 (2015) (quoting
Preston v. Duncan. 55 Wn.2d 678, 683, 349 P.2d 605 (1960)).
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applies to a particular case also presents a question of law we review de novo.6

We review trial court rulings on the admissibility of expert testimony for abuse of

discretion.7

          Normally, we do not consider issues raised and argued for the first time in

a reply brief.8 Courts follow this practice out of fairness to the respondent, who

has no opportunity to argue in response.9 But this court may review an issue first

raised in the reply brief if "'the ends of justice'" so require.10 Because the briefing

in this case failed to give adequate attention to a decisive issue and because the

numerous fact disputes make summary judgment particularly inappropriate here,

the ends of justice compel us to consider an argument the Burkes raise for the

first time in their reply. We asked the parties for oral argument in part to give the

City an opportunity to address that argument.

                                      ANALYSIS


          The City had the burden of showing no genuine issue of material fact

existed as to some element of the Burkes' negligence case. Negligence has four




          6 Pacheco v. Ames. 149 Wn.2d 431, 436, 69 P.3d 324 (2003).
          7 Miller v. Likins. 109 Wn. App. 140, 147, 34 P.3d 835 (2001).
          8 Ainsworth v. Progressive Cas. Ins. Co.. 180 Wn. App. 52, 78 n.20, 322
P.3d 6 (2014); In re Marriage of Sacco. 114 Wn.2d 1, 5, 784 P.2d 1266 (1990);
RAP 10.3(c).
          9 City of Spokane v. White. 102 Wn. App. 955, 963, 10 P.3d 1095 (2000).
          10 State v. Haberman. 105 Wn. App. 926, 933, 22 P.3d 264 (2001); RAP
1.2(c).
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elements: duty, breach, causation, and injury.11      The City contends that the

Burkes failed to present evidence sufficient to create a genuine issue of material

fact as to breach.


Violation of Traffic Laws as Evidence of Negligence

       The Burkes contend for the first time in their reply that Elfrink-Thompson's

violation of traffic laws by swerving into Jeffrey's lane provides evidence of

negligence sufficient to preclude summary judgment. As discussed above, we

consider this argument because declining to do so would deny justice to a needy

party.12

       "A breach of a duty imposed by statute, ordinance, or administrative rule

shall not be considered negligence per se, but may be considered by the trier of

fact as evidence of negligence."13     Washington traffic laws require that "[a]

vehicle shall be driven as nearly as practicable entirely within a single lane" and

may not be driven in the left lane in a no-passing zone.14

       Jeffrey testified that he saw Elfrink-Thompson's truck fishtail and swerve

into his lane. The collision itself occurred in Jeffrey's lane. Viewed in the light

most favorable to the Burkes, this evidence would establish that Elfrink-



       11 Keller v. City of Spokane. 146 Wn.2d 237, 242, 44 P.3d 845 (2002).
       12 RAP 1.2(c).
       13 RCW 5.40.050; see Pettit v. Dwoskin. 116 Wn. App. 466, 475, 68 P.3d
1088(2003).
      14 RCW 46.61.140(1), .130.
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NO. 72858-0-1 / 8




Thompson breached a duty under Washington traffic laws. This breach "may be

considered by the trier of fact as evidence of negligence."15

       The City contends that Mathis v. Amnions16 supports summary judgment

despite the evidence that Elfrink-Thompson violated traffic laws.        In Mathis.

Division Two upheld the trial court's entry of judgment on a jury's verdict that a

tractor driver was not negligent despite violating a statute that required flashing

hazard lights.17 Mathis shows only that evidence of a statutory violation does not

prove negligence as a matter of law.18 It can defeat a motion for summary

judgment where the question is not if the violation shows negligence as a matter

of law but instead whether a genuine issue of material fact exists about

negligence. Evidence of Elfrink-Thompson's statutory violation is evidence, not

complete proof, of his negligence.19 This is all the Burkes needed to produce at

the summary judgment stage. The trial court thus erred in granting the City

summary judgment.




       15 RCW 5.40.050.
       16 84 Wn. App. 411, 928 P.2d 431 (1996).
       17 Mathis. 84 Wn. App. at 419-20.
       18 The City correctly points out that the legislature abolished negligence
per se in 1986. Hansen v. Friend. 118 Wn.2d 476, 483, 824 P.2d 483 (1992).
       19 See RCW 5.40.050. "Proof is "[t]he establishment or refutation of an
alleged fact by evidence." Black's Law Dictionary 1409 (10th ed. 2014).
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Res Ipsa Loquitur

       The parties devote much of their briefing to res ipsa loquitur. But this is

not a "'peculiar and exceptional case[ ]'" to which res ipsa loquitur applies.20

       Res ipsa loquitur allows a plaintiff to circumstantially establish a prima

facie case of negligence by the defendant without further direct proof.21 It spares

the plaintiff from proving specific acts of negligence and shifts the burden to the

defendant to provide an explanation.22           Courts apply res ipsa loquitur

"'sparingly... in peculiar and exceptional cases, and only where the facts and

the demands of justice make its application essential.'"23

       Res ipsa loquitur applies where the party promoting it establishes three

elements: (1) the occurrence producing the injury was of a kind that ordinarily

does not occur in the absence of negligence, (2) the injury was caused by an

agency or instrumentality within the exclusive control of the defendant, and (3)

the injury-causing occurrence was not due to any contribution of the injured

party.24   If any of these elements is missing, a presumption of negligence is


       20 See The-Anh Nguyen v. City of Seattle. 179 Wn. App. 155, 173, 317
P.3d 518 (2014) (alteration in original) (internal quotation marks omitted) (quoting
Curtis v. Lien. 169 Wn.2d 884, 889, 239 P.3d 1078 (2010)).
       21 Curtis. 169 Wn.2d at 894 (quoting Pacheco. 149 Wn.2d at 440-41).
       22 Curtis. 169Wn.2dat894.
       23 Curtis. 169 Wn.2d at 889 (internal quotation marks omitted) (quoting
Tinder v. Nordstrom. Inc.. 84 Wn. App. 787, 792, 929 P.2d 1209 (1997)).
       24 Pacheco. 149 Wn.2d at 436-37 (quoting Zukowskv v. Brown. 79 Wn.2d
586, 593, 488 P.2d 269 (1971)).
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NO. 72858-0-1/10




unwarranted. The second and third elements are not contested here: the City

concedes that Elfrink-Thompson had exclusive control of the truck and does not

contend that Jeffrey was at fault.

       The first element can be met in three ways:

       "(1) When the act causing the injury is so palpably negligent that it
       may be inferred as a matter of law, Le., leaving foreign objects,
       sponges, scissors, etc., in the body, or amputation of a wrong
       member; (2) when the general experience and observation of
       mankind teaches that the result would not be expected without
       negligence; and (3) when proof by experts in an esoteric field
       creates an inference that negligence caused the injuries."[25]
       The Burkes do not show the presence of any of these factors. First, a car

accident is not "so palpably negligent that it may be inferred as a matter of law"

like leaving a sponge in a patient or amputating the wrong leg.26 Rather, a
plaintiff suing for negligence in a car accident still must prove duty, breach,

causation, and injury.27 Second, the Burkes cite no case holding that in the

"general experience and observation ofmankind" a driver does not lose control of
his vehicle without negligence. Given the unfortunate frequency of car accidents,

we decline to do so here. And third, car accidents are not "an esoteric field" such

that expert testimony would create an inference of negligence. Including car

       25 Pacheco. 149 Wn.2d at 438-39 (internal quotation marks omitted)
(quoting Zukowskv. 79 Wn.2d at 595).
       26 see Cho v. City of Seattle, 185 Wn. App. 10, 16, 341 P.3d 309 (2014)
("The fact that an accident occurred does not, by itself, necessarily give rise to an
inference of negligence."), review denied. 183 Wn.2d 1007 (2015).
       27 Cho. 185 Wn. App. at 16.
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NO. 72858-0-1/11




accidents in that category would make the narrow qualifier "esoteric" effectively

meaningless.

The Burkes' Accident Reconstructionist


       The Burkes also challenge the trial court's exclusion of their expert Steve

Harbinson's testimony that Elfrink-Thompson was likely speeding or distracted

when he crashed.      Harbinson based his opinion on a scaled diagram of the

collision scene, the photographs taken immediately after the crash, his

experience, and Jeffrey's observations.     He admitted having seen no physical

evidence that Elfrink-Thompson lost control because he was distracted or

speeding.   The trial court excluded Harbinson's testimony as speculative and

lacking an adequate factual basis.

      This court upheld exclusions of testimony from plaintiffs' experts as

speculative in Cho v. City of Seattle28 and Miller v. Likins.29 In Cho. the experts

indicated that had the city installed a pedestrian island, the plaintiff would have

stopped and waited for traffic to proceed before attempting to cross the street

and that had the city installed a traffic light, the drunk driver would have stopped

at it.30 This court found that the experts' testimony "contained] only conclusory



      28 185 Wn. App. 10, 20, 341 P.3d 309 (2014), review denied. 183 Wn.2d
1007(2015).
      29 109 Wn. App. 140, 149-50, 34 P.3d 835 (2001).
      30 Cho, 185 Wn. App. at 19-20.
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allegations, unsupported by. . . facts."31 In Miller, an accident reconstructionist

testified that in his opinion the defendant's car struck the plaintiff on the shoulder

of the road, not the roadway.32 The expert admitted the physical evidence fit the

defendant's claim that the plaintiff was standing in the street when he was hit,

just as well as it fit the plaintiff's claim that he had been standing on the

shoulder.33     Noting the expert based his testimony entirely on one witness's

declaration, this court affirmed the trial court's finding that the expert's opinion

was speculative and lacked an adequate factual basis.34

       Here, however, Harbinson's testimony was not speculative. Thus, the trial

court abused its discretion in excluding it.      We distinguish Cho and Miller.

Neither case involved testimony about the likely cause of an accident, applying

the witness's expertise to photos and witness statements. Rather, the experts in

Cho speculated about what certain actors would have done had the city installed

safety features.35 This court properly held that the experts' conclusions lacked

an adequate factual basis. The expert in Miller did not testify about the likely

cause of the accident but to where on the road the plaintiff was standing when

struck.36 The expert based his opinion on the testimony of a single witness, not

       31   Cho. 185 Wn. App. at 20.
       32   Miller. 109 Wn. App. at 149-50.
       33   Miller. 109 Wn. App. at 149.
       34   Miller. 109 Wn. App. at 149-50.
       35   Cho. 185 Wn. App. at 20.
       36   Miller. 109 Wn. App. at 149-50.
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NO. 72858-0-1/13




on the physical evidence. Thus, this court found that he based his opinion solely

on a decision to credit that witness, not on his expertise as applied to the facts.

In contrast, Harbinson made a complete review of the accident file, including

accident photos and the terrain of the hill, in addition to considering Jeffrey's

testimony.   Harbinson applied his expertise as an accident reconstructionist to

this evidence to conclude that Elfrink-Thompson probably lost control because he

was distracted or speeding.     The trial court therefore abused its discretion in

excluding Harbinson's testimony.

The City's Sudden-Incapacity Defense

      The City argues that even if the Burkes can show a prima facie case of

negligence, it has a complete defense of sudden incapacity based on Dr.

Buchter's testimony.    In response, the Burkes point to Dr. Corson's expert

testimony drawing the opposite conclusion.

      Viewing the facts in the light most favorable to the Burkes, the record

shows a factual dispute about the City's defense of sudden incapacity, making

summary judgment inappropriate. Dr. Corson's declaration creates a genuine

issue of material fact as to whether Elfrink-Thompson suffered a heart attack that

caused him to lose control of the truck.

       The City contends that Dr. Corson's testimony would be inadmissible at

trial as the product of ex parte contact between counsel and a treating physician

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NO. 72858-0-1 /14




of the opposing party.    A court can consider only admissible evidence when

ruling on a motion for summary judgment.37 In Loudon v. Mhyre.38 the Supreme

Court held that defense counsel may not engage in ex parte contact with the

plaintiff's treating physician in a personal injury action. The City asserts that this

rule should apply here even though the contact was between counsel for a

plaintiff and a physician who read the medical records of the defendants'

decedent.    The City further contends that Dr. Corson is a treating physician

because the Burkes identified him on a witness list in discovery as someone who

may testify to Elfrink-Thompson's treatment or medical records and because he

appears to fall under the definition of "health care provider" in the medical torts

statute.39

       The Burkes deny that Dr. Corson was a treating physician. Dr. Corson

never met Elfrink-Thompson or his family or assisted in his treatment.             Dr.

Corson only read Elfrink-Thompson's ECG tracings, among 100 or more others

that day, to "check that the data in the software-generated interpretation report

[wa]s correct."

       The Supreme Court in Loudon justified its prohibition of ex parte contacts

with treating physicians because "[t]he mere threat that a physician might engage

       37 Burmeisterv. State Farm Ins. Co.. 92 Wn. App. 359, 365, 966 P.2d 921
(1998).
       38 110 Wn.2d 675, 675-76, 756 P.2d 138 (1988).
       39 RCW 7.70.020(3).
                                        -14-
NO. 72858-0-1/15




in private interviews with defense counsel would, for some, have a chilling effect

on the physician-patient relationship and hinder further treatment."40 The court

has since provided three more justifications:        protecting the doctor-patient

fiduciary relationship, protecting doctors from potential liability for wrongful

disclosures, and avoiding situations where defense counsel would be called to

testify as an impeachment witness.41

      We reject the City's proposed application of the Loudon rule here. We

agree with the Burkes that Dr. Corson was not a "treating physician." Even if we

agree that the Loudon rule can apply to contacts between a plaintiff's attorney

and a treating physician of the defendants' decedent, the City cites no case

applying that rule to a physician with such a tangential connection to the patient.

And none of the justifications for the Loudon rule would justify extending it to Dr.

Corson:   allowing counsel to contact a doctor who reviews a patient's ECG

tracings among 100 others and has no interaction with the patient or effect on the

patient's treatment would not affect the doctor-patient relationship in the ways

Loudon was concerned with.


                                  CONCLUSION


       Because the Burkes' evidence that Elfrink-Thompson crossed the center

line created a genuine issue of material fact as to breach, the trial court erred in

       40 Loudon, 110 Wn.2d at 679.
       41 Youngs v. PeaceHealth. 179 Wn.2d 645, 659-60, 316 P.3d 1035 (2014).
                                        -15-
NO. 72858-0-1/16




granting summary judgment for the City.     And because genuine issues of

material fact exist about the City's sudden-incapacity defense, we decline to

affirm summary judgment on the basis of this defense. We therefore reverse and

remand for further proceedings.




WE CONCUR:




                                            ^Lik^U




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