      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



 ARENDT SPESER, a married man,                         No. 75724-5-1

                        Appellant,                     DIVISION ONE

                 V.

 KELSEY MONDAU and JOHN DOE                            UNPUBLISHED
 MONDAU, wife and husband, and the
 marital community composed thereof,                   FILED: September 11,2017

                        Respondents.



          Cox, J. — Arendt Speser appeals the trial court's grant of summary

judgment to Kelsey Mondau in this personal injury action. The action arises from

an intersection accident on 15th Avenue West in Seattle. Speser was riding

south on his motorcycle. Mondau was travelling north when she decided to

make a left-hand turn in her motor vehicle. The two vehicles did not collide. But

Speser was injured while braking once he saw Mondau.

          We hold that there are no genuine issues of material fact whether Mondau

breached any duty to Speser. She is entitled to judgment as a matter of law. We

affirm.

          15th Avenue West is a thoroughfare with three southbound lanes. As

Speser approached the intersection with West Armory Way, he switched into the "

southbound curb lane. This is a right turn only lane, except for buses.
No. 75724-5-1/2

       Mondau reached the same intersection in her vehicle, traveling

northbound on the other side of the thoroughfare. She intended to make a left-

hand turn. Traffic occupied the two southbound through lanes, but a gap

remained for left-turning drivers. Mondau, seeing this gap, entered the

intersection to turn left.

       As she was turning, she saw Speser riding his motorcycle still in the curb

lane. She stopped her vehicle short of the curb lane, in front of the two

southbound through lanes. Seeing Mondau's vehicle, Speser braked suddenly

and fell to the ground. There was no collision. Nevertheless, he sustained

injuries.

       Speser commenced this personal injury action, asserting negligence and

seeking damages. Mondau moved for summary judgment, arguing that she had.

not breached any duty to him. In response, Speser claimed she breached duties

under two statutes: RCW 46.61.185 and RCW 46.61.190(2). The trial court

granted the motion.

       Speser appeals.

                                 RCW 46.61.185

       Speser argues that Mondau breached, as a matter of law, her statutory

duty to yield the right-of-way under RCW 46.61.185. Alternatively, he argues that

there are genuine issues of material fact whether she did so. We hold that she

did not breach a duty to him and there are no genuine issues of material fact

under this rule of the road.




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No. 75724-5-1/3

       Summary judgment is proper "only when there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of

law."1 "A genuine issue of material fact exists if 'reasonable minds could differ on

the facts controlling the outcome of the litigation.'"2

       We review de novo a trial court's grant of summary judgment.3

       To prove negligence, a claimant must prove the defendant had a duty

towards the claimant, breached that duty, and that that breach was the proximate

cause of the claimant's injury.4

       RCW 46.61.185 is a statutory rule of the road that provides that:

       The driver of a vehicle intending to turn to the left within an
       intersection or into an alley, private road, or driveway shall yield the
       right-of-way to any vehicle approaching from the opposite direction
       which is within the intersection or so close thereto as to constitute
       an immediate hazard.

       Here, the question is whether Mondau breached a duty owed to Speser

under this statue. She was the disfavored driver with the duty to "yield the right-

of-way" to any vehicles approaching from the north that were either within the




       Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014); see
       1
also CR 56(c).

       2Knight v. Dep't of Labor & Indus., 181 Wn. App. 788, 795, 321 P.3d 1275
(quoting Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 -
(2008)), review denied, 181 Wn.2d 1023(2014).

       3   Id.

       4Hertog, ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d
400 (1999).

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No. 75724-5-1/4

intersection or close enough to constitute an immediate hazard.5 As the

disfavored driver, she had "the primary duty to avoid collision."6

       The narrow question is what the legislature intended by the phrase "yield

the right-of-way" under these circumstances.

       In construing a statute, we seek to ascertain and carry out the legislature's

intent.7 We do so based on the plain meaning of the statutory language.5 An

undefined term in that language is given its "usual, ordinary, and commonly

accepted meaning."9 Where a term does not have technical meaning, this court

may refer to its dictionary definition.19

       The American Heritage Dictionary defines "yield" as "to give up (an

advantage, for example) to another; concede."11 And it defines the "right-of-way"

as the "customary or legal right of a person, vessel, or vehicle to pass in front of

another."12 Applying these definitions here, to "yield the right-of-way" is to give

up to another vehicle the right to pass in front of that vehicle. Thus, a disfavored.



     5 See Doherty v. Mun. of Metro. Seattle, 83 Wn. App. 464, 470, 921 P.2d
1098(1996).

       6   Id.

       7 Thorpe    v. Inslee, 188 Wn.2d 282, 289, 393 P.3d 1231, 1234 (2017).

       8   Id.

       9   Greenhalgh v. Dep't of Corr., 180 Wn. App. 876, 884, 324 P.3d 771
(2014).

       19   Id.

       11 THE AMERICAN HERITAGE DICTIONARY 2070(3d ed. 1992).

       12   Id. at 1554.

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No. 75724-5-1/5

driver breaches the duty to yield the right-of-way when he or she fails to give up

to another vehicle the right to pass in front of that vehicle.

       Here, Mondau began her left-hand turn in the intersection, but stopped

short of the curbside lane where Speser rode his motorcycle. Specifically, it is

undisputed that she stopped her vehicle in front of the two southbound through

lanes to the east of the curbside lane where Speser's motorcycle was located.

She did not breach any duty under RCW 46.61.185 because she yielded to

Speser's right of way in the curb lane.

       Speser argues that nothing in RCW 46.61.185 states that breaching the

duty to yield is triggered only when a disfavored driver intrudes into the favored

driver's lane of trave1.13 Specifically, he argues that "the disfavored driver need

only have made a left turn when a favored driver is 'close enough to constitute an

immediate hazard.'"14 This argument misreads the statute.

       As we just discussed, the plain meaning of the statutory language shows

the legislative intent that RCW 46.61.185 requires that the disfavored driver yield •

the right-of-way to the favored driver coming from the opposite direction. Speser

fails to explain how the clause in the statute on which he relies—"so close thereto

as to constitute an immediate hazard" —dictates that "right of way" is something

other than what we decide. Accordingly, we adhere to this construction of the

statute.

       The cases Speser cites do not require a different result.


       13   Brief of Appellant at 12.

       14   Id.(quoting RCW 46.61.185).

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No. 75724-5-1/6

       Speser relies on Pollard v. Rossoe Manufacturing Co.15 But this case

does not help him.

       There, Hannah Pollard, the disfavored driver, had "entered a north-south

arterial from the west, intending to cross the southbound traffic lanes, make a left

turnbi and go north on the arterial."16 For purposes of appeal, the supreme court

assumed that she had crossed the southbound traffic lanes and was in the

northbound lanes.17 Pollard hit a southbound oil truck in the intersection that was

not entirely on its own side of the center lane.15

       Pollard, the disfavored driver, commenced an action for recovery.19 The

supreme court considered whether her contributory negligence barred that

recovery.

       Under former RCW 46.60.170, a different statute than the one now before

us, Pollard, as the disfavored driver, had to "stop, to look out for approaching

traffic on the arterial, and to yield the 'right-of-way to any vehicles ...

approaching a given point within the intersection, whether or not h[er] vehicle first

reaches and enters the intersection."20 The court explained that "[t]he fact that

two cars collide within the intersection establishes that prior thereto they were



       15 56 Wn.2d    862, 355 P.2d 979 (1960).

       16   Id. at 863.
       17   Id.

       15   Id.

       15   Id.

       25   Id. (quoting RCW 46.60.170 (1955)).

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No. 75724-5-1/7

simultaneously approaching a given point within the intersection, and that the

disfavored driver had not yielded the right of-way."21

       Pollard argued that "if the disfavored driver has made it safely across half

of the arterial, he is no longer negligent, as a matter of law, if involved in a

collision with vehicles which should have been traveling on the half of the arterial

he has cleared."22

       The supreme court rejected this argument.23 It reasoned that:

       it was to avoid just such split second timings, as would be involved
       in clearing half of an arterial, and the burden of choice which would
       be put on favored drivers by disfavored drivers trying to cross in
       front of them, that led the legislature to require disfavored drivers to
       look out for and give right of way to any vehicles upon the arterial
       highway simultaneously approaching a given point within the
       intersection (24]

       This case is distinguishable. In Pollard, the disfavored driver passed

through the favored driver's rightful lanes of travel without looking out. She did

not yield the right-of-way to the truck as it "simultaneously approach[ed] a given

point within the intersection."25 These principles made her conduct negligent

even if the collision occurred outside the truck's rightful lane of travel.

       By contrast, Mondau never entered Speser's right of way, the curb lane of

travel. To the extent the vehicles were simultaneously approaching a given



       21   Id.

       22   Id. at 864.

       23 Id.

       24   id.

       25 Id. at 863.

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No. 75724-5-1/8

point, namely Speser's location, Mondau braked before reaching that point. In

doing so, she yielded the right of way to him.

       Nor does Doherty v. Municipality of Metropolitan Seattle26 support

Speser's position.

       In that case, Reiko Doherty was driving northbound on Southcenter

Parkway when she suffered hypoglycemic shock and lost control of her car.27

She started veering and struck several vehicles.28 A bus driver had begun

turning left into an adjacent mall parking lot and had "paused, partially blocking

the northbound lanes, while waiting for traffic to clear."29 At that point, Doherty

crashed into the bus and was killed.30

       Her spouse and estate brought a claim for negligence against Seattle.31

The trial court granted summary judgment for Seattle based on the city's

argument that proximate cause could not be established as the accident would

have still occurred if the bus had remained in the left turn pocket.32




       26 83 Wn. App. 464, 921   P.2d 1098(1996).

       27   Id. at 466.

       23   Id.

       29   Id.

       3° Id. at 467.

       31 Id.

       32   Id.

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No. 75724-5-1/9

       This court reversed based on ROW 46.61.185.33 It reasoned that under

this statute, Doherty had been the favored driver.34 The bus driver had failed to

yield the right-of-way to Doherty and had blocked a lane of oncoming traffic.35

The car "was within its rightful lanes of travel and was close enough to constitute

an immediate hazard."36

      This court concluded that the accident and consequences may not have

resulted in the exact same fashion if the bus driver was not blocking part of the

northbound roadway.37 For that reason, a genuine issue of material fact

remained and summary judgment had been improper.38

       But here, Mondau never entered Speser's rightful lane of travel. She

braked in front of the two easterly through lanes before reaching that lane. Thus,

Mondau fulfilled her duty to Speser.

       Alternatively, Speser argues that whether he was close enough to

constitute an immediate hazard is a genuine issue of material fact for tria1.36 We

disagree.




      33   Id. at 470.

      34 Id. at 471.
      35   Id.

      36   Id. at 470.

      37 Id. at 471.


      38   Id.

      39   Brief of Appellant at 17-18.

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No. 75724-5-1/10

          A genuine issue of material fact is one on which the outcome of litigation

depends.4° The undisputed evidence in the record is that Mondau yielded the

right of way to Speser by not intruding into his right of way, the curb lane of

travel.

          The fact that she may have been several feet from Speser's lane of travel

when she braked does not diminish the fact that she yielded the right of way to

him, fulfilling her duty. Whether Speser was then either "within the intersection"

or "so close thereto as to constitute an immediate hazard" does nothing to affect

the fact that she yielded the right of way to him. While his exact location in

relation to the intersection may be an issue of fact, it is not material to the

outcome of this litigation.

          Speser next argues that this court "should not create a bright line rule that

no breach occurs unless a disfavored driver actually enters into the favored

driver's lane."41 We do not make a bright line rule by our holding in this case.

          For example, in a future case, a favored driver may be in an oversize

vehicle that requires use of more than one lane. Under those circumstances, the

favored driver's right of way may be more than one lane. But the analysis there

would be no different than that here. The question still would be whether the

disfavored driver yielded the right of way to the favored driver.




      40 Seattle Police Officers Guild v. City of Seattle, 151 Wn.2d 823, 830, 92
P.3d 243(2004).

          41   Brief of Appellant at 18.

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No. 75724-5-1/11

       In sum, Mondau did not breach any duty under RCW 46.61.185. And

there are no genuine issues of material fact based on this statute.

                          CLEAR STRETCH OF THE ROAD

       Speser next argues that genuine issues of material fact exist whether

Mondau breached a common law duty of reasonable care based on the "clear

stretch of the road" doctrine.42 We disagree.

       A threshold issue that neither party addresses is that Speser makes this

common law duty doctrine argument for the first time on appeal. His alternative

argument below was based on statutory grounds, specifically RCW 46.61.190(2),

not common law grounds.43 Generally, we do not address arguments made for

the first time on appea1.44

       Nevertheless, we reach the issue. It appears that the "clear stretch of the

road" doctrine has been codified in 46.61.190.45 Thus, the basic argument was

preserved for appeal.

       The "clear stretch of the road" doctrine:

       is based on the requirement that a disfavored driver proceed to
       make a left turn in front of oncoming traffic only when he has
       observed all that is to be seen from a prudent point of observation,
       no oncoming traffic is to be seen which will threaten his passage by
       a fair margin of safety, and no change in the obstruction of his view
       can be anticipated. If an approaching favored vehicle is beyond the
       visibility of a disfavored driver when he commences and is
       committed to his lefthand turn, then the disfavored driver has

       42   Id. at 19.

       43   Cf. Fovargue v. Ramsever, 73 Wn.2d 574, 581,439 P.2d 966(1968).

       44   RAP 2.5(a).

       45   Fovargue, 73 Wn.2d at 581-82.

                                            11
No. 75724-5-1/12

       discharged his duty of due care by doing everything that reasonably
       could be expected to be done to avoid a collision.E46]

       However, where some kind of obstruction blocks the view of the

disfavored driver, a different rule applies. Where the obstruction:

       is one that reasonably can be expected to move, such as another
       occupied vehicle or road repair machinery, then the disfavored
       driver must permit the impairment to his view to move on so he can
       see the stretch of the road from which a favored driver might be
       approaching.[471

       Here, the record is undisputed that there was no obstruction blocking

Mondau's view when she began turning." Consequently, on this record, there is

no issue of any obstruction creating a duty for Mondau to wait under the clear

stretch of road doctrine.

       Accordingly, there are no genuine issues of material fact regarding

Mondau's duty under the clear stretch of road doctrine. She is entitled to

judgment as a matter of law on this ground, as well.

       We affirm, in all respects, the summary judgment order of dismissal.




WE CONCUR:



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      46   Harn v. Burnett, 12 Wn. App. 833, 842, 532 P.2d 1165 (1975).
                                                                                 41
                                                                                  .9
                                                                                   ,




      47   Id.

      48   Clerk's Papers at 72 [lines 7-9 testimony is unrefuted].

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