                                                                            FILED
                                                                    COURT OF APPEALS DIV
                                                                     STATE OF WASHINGTON I

                                                                    2018 FEB -5 /111 9:15




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JON RAPPAPORT,                                      No. 75860-8-1

                        Appellant,                  DIVISION ONE

                V.

NICOLE HANSON and JOHN DOES 1                       UNPUBLISHED OPINION
through 100, persons and/or corporate
entities,

                        Respondents.                FILED: February 5, 2018

       SCHINDLER, J. — Jon Rappaport appeals summary judgment dismissal of his

personal injury lawsuit. Viewing the evidence in the light most favorable to Rappaport

as the nonmoving party, material issues of fact preclude summary judgment dismissal

of the lawsuit. We reverse and remand for trial.

Car Accident

       On August 31, 2011, Jon Rappaport was driving westbound on SW Admiral Way

in West Seattle. Nicole Hanson was driving eastbound. Her mother was a passenger

in the car. Hanson's vehicle crossed over the center line. According to Rappaport, the

mirror of Hanson's car hit the mirror of his car.

       On September 1, Rappaport went to Northwest Hospital and Medical Center.

Rappaport had pain in his upper back, shoulders, and head. Rappaport told the
 No. 75860-8-1/2

emergency room doctor that a "'girl driving towards him crossed over the yellow line'"

and the car mirror of her car hit the car mirror of his car.

        Rappaport contacted Hanson's insurance provider GEICO and reported the

collision. Rappaport told the GEICO claim investigator that Hanson's driver-side mirror

 hit his car.

'Personal Injury Lawsuit

        On September 2, 2014, Rappaport filed a personal injury lawsuit in King County

 District Court against Hanson. Rappaport alleged that on August 31, 2011, Hanson

negligently operated her vehicle by crossing the double yellow line into the opposing

lane of travel. Rappaport alleged Hanson's car struck his car and as a result, he was

injured. Rappaport sought personal injury damages.

        Hanson filed an answer and affirmative defenses. Hanson admitted she was the

driver of the 2006 Acura and "the accident occurred in the evening on August 31."

 Hanson denied the remaining allegations.

 Motion for Summary Judgment

        Hanson filed a motion for summary judgment dismissal of the lawsuit. Hanson

argued there was no evidence that Rappaport's injuries were caused by the "alleged

accident." In support of the motion, Hanson attached her declaration, a repair estimate

from her insurance company GEICO, photographs of Rappaport's car, the declaration of

orthopedic surgeon Dr. Stanley Kopp, and the declaration of chiropractor Dr. Mark

Sutton.

        Hanson admitted that on August 31, 2011, she was traveling eastbound on SW

Admiral Way and her "vehicle crossed over the double yellow lines separating the

eastbound and westbound lanes of travel." Hanson admitted her car "passed closely by

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No. 75860-8-1/3

[Rappaport]'s vehicle" but she denied her car struck the driver-side mirror on

Rappaport's car.

       A GEICO repair estimate dated September 15, 2011 states there is "no damage"

to Hanson's car. Hanson also submitted photographs that a GEICO investigator took of

Rappaport's car.

       Dr. Kopp and Dr. Sutton reviewed the September 1, 2011 medical records from

Northwest Hospital. The medical records state that an X-ray and MRI1 scan show an

"apparent facet offset at C6-C7"2 and that a doctor diagnosed cervical sprain.

       Dr. Kopp states that loin a more probable than not basis, and to a reasonable

degree of medical certainty," the facet offset "could not have been caused by.. . a

collision between the parties' vehicles in which the mirrors made contact, but which did

not result in any damage to the mirrors." Dr. Sutton states that in his opinion, it is

"highly unlikely" that Rappaport sustained any soft-tissue injuries to his neck.

       The reported mechanism of injury at play in this alleged accident was
       insufficient to cause Plaintiff any sprain or strain type of injuries. Put
       differently, the alleged collision did not result in any damage to either
       vehicle; thus, it is highly unlikely that forces insufficient to cause any
       property damage to the vehicles would be sufficient forces to cause soft-
       tissue injuries to the occupants of said vehicles.[3]

       In opposition, Rappaport argued there were genuine issues of material fact as to

whether the driver-side mirror of Hanson's car struck the driver-side mirror of his car,

resulting in his injuries. Rappaport submitted his declaration; the Seattle Fire

Department(SFD)incident report; the declaration of a friend, Philip Long; the




       1 Magnetic resonance imaging.
       2 Cervical vertebra 6 and 7.

       3 Emphasis in original.



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No. 75860-8-1/4

September 1, 2011 Northwest Hospital medical records; pharmacy receipts; and

medical insurance claim forms.

       In his declaration, Rappaport states that on August 31, 2011, Hanson's vehicle

crossed over the center line and "struck [his] car." Rappaport testified that Hanson

drove away and he followed her into a parking lot. Rappaport said Hanson appeared

"'out of it' " and "sleepy."

       Rappaport stated he called 911 and then called his friend Long to tell him that

"he had just been in an accident with a woman who crossed the centerline on Admiral,

hit him, and then took off." While waiting for the SFD to respond, Rappaport said

Hanson's mother "wiped off all signs of contact. ..from Hanson's driver's side mirror."

Rappaport said he "confronted [Hanson's mother] about what she was doing" and she

"became defensive."

       The SFD report states,"2 CAR Motor vehicle accident. ...45 Year Old Male

BACK P[Al]N." Long testified that Rappaport came to his house after the collision

between 7:30 p.m. and 8:00 p.m. Because Rappaport "was injured and in pain," they

did not attend a baseball game that night as planned.

       The Northwest Hospital September 1, 2011 medical records state that the

attending physician examined Rappaport and ordered an X-ray and an MRI scan. The

X-ray and MRI scan showed a "facet offset"—a partial dislocation of the vertebra. The

doctor noted the facet offset suggests a "[c]orrelation with the patient[']s physical

symptoms." The doctor prescribed a muscle relaxant and pain medication.

       The district court granted summary judgment and dismissed the lawsuit.

Rappaport filed a motion for reconsideration. Rappaport submitted medical records

from neurosurgical specialist Dr. Steven Klein and the declaration of Northwest Hospital

                                             4
No. 75860-8-1/5

emergency medicine specialist Dr. Gregory Schroedl. Dr. Klein states that he examined

Rappaport on September 6, 2011, diagnosed "back and neck pain," and prescribed

physical therapy. Dr. Schroedl states that based on his review of the medical records,

"the medical examinations at Northwest Hospital demonstrate objective and subjective

symptoms consistent with that off [sic] an individual involved in a motor vehicle

collision." Dr. Schroedl states that "on a more probable than not basis, Mr. Rappaport

was injured due to the motor vehicle collision occurring on August 31."

       The district court considered the declarations of Dr. Klein and Dr. Schroedl but

denied the motion for reconsideration. The order states:

       The Plaintiff has submitted documents in support of this motion which
       were previously submitted and considered by the court.

       Additional information presented by the plaintiff is Exhibit EE, a declaration
       by Dr. Gregory Schroedl, and Exhibit 6, records relating to an examination
       by Dr. Steven Klein. Dr. Schroedl's declaration does not raise an issue of
       material fact. He performed a records review only and did not review the
       declarations or attachments of Dr. Kopp and Dr. Sutton. His conclusions
       are summarily stated. He does not address the primary issue in this case
       which is causation related to the existence of physical contact between the
       vehicles and the result of physical contact.

       The court does not find that a material issue of fact exists, specifically on
       the issue of whether the minimal contact alleged is capable of causing the
       injuries alleged in the complaint.

Appeal to Superior Court

       Rappaport appealed the district court decision. Rappaport argued whether a

collision occurred is a fact question for the jury. Hanson argued because the

"undisputed physical evidence" shows there was no damage to either of the cars,

Rappaport could not establish proximate cause or injury. The superior court affirmed




                                             5
No. 75860-8-1/6

summary judgment dismissal of the lawsuit. The court ruled there was no "competent

evidence" to support the conclusion that a collision occurred.

              The complaint in this case, and plaintiffs declarations... all assert
       that he was injured as a result of his car having been struck by Ms.
       Hanson's car. ...
              There is no competent evidence supporting the fact that a collision
       occurred in this case. Every declaration and document plaintiff relies on is
       based on his own statement that a collision occurred. ...
              . . . Appellant failed to provide competent testimony to support the
       causation and injury elements of his negligence claim.

Discretionary Review

       Rappaport filed a motion for discretionary review of the superior court order

affirming the district court decision on summary judgment to dismiss his personal injury

lawsuit.4 Rappaport argued the superior court did not view the facts in the light most

favorable to the nonmoving party, disregarded his testimony, and improperly weighed

the evidence. A commissioner of this court granted review under RAP 2.3(d)(1).

       This case arises from an alleged automobile collision in August 2011.
       Rappaport was driving eastbound on S.W. Admiral Way in Seattle. It is
       undisputed that Hanson, who was driving westbound, crossed over the
       double yellow line. Rappaport alleges that Hanson's car struck his car;
       Hanson denies that her car struck Rappaport's car. Rappaport provided
       evidence of injuries he allegedly suffered. In affirming summary judgment
       dismissal, the superior court reasoned that there was no competent
       evidence, i.e. physical evidence, that a collision occurred. The court
       apparently disregarded Rappaport's testimony. Although the evidence is
       very limited, it appears that the court weighed the evidence instead of
       leaving that task for a jury, contrary to the established case law Rappaport
       cites. The court's decision appears to be in conflict with appellate case
       law. RAP 2.3(d)(1).




        4 Rappaport assigns error to additional superior court decisions. We review only the decision
designated in the notice for discretionary review. RAP 2.4(a). We granted review of the decision to
dismiss Rappaport's personal injury lawsuit on summary judgment. City of Bothell v. Barnhart, 156 Wn.
App. 531, 538 n.2, 234 P.3d 264(2010).


                                                  6
No. 75860-8-1/7

Summary Judgment Dismissal

       RALJ 9.1 governs an appeal from a superior court order affirming a district court

order. We review the record before the district court. Elliott Bay Adjustment Co. v.

Dacumos, 200 Wn. App. 208, 212-13, 401 P.3d 473(2017). We review summary

judgment de novo. Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 271, 285 P.3d 854

(2012). We view the facts and reasonable inferences in the light most favorable to the

nonmoving party. Lakev v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d

860(2013). Where there are no genuine issues of material fact, the moving party is

entitled to judgment as a matter of law. CR 56(c); Loeffelholz, 175 Wn.2d at 271. A

material fact is one upon which the outcome of the litigation depends. Owen v.

Burlington N. Santa Fe R.R., 153 Wn.2d 780, 789, 108 P.3d 1220(2005). On summary

judgment, we consider supporting affidavits and other admissible evidence based on

personal knowledge. Intl Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App.

736, 744, 87 P.3d 774(2004). When reasonable minds could reach but one conclusion,

summary judgment is appropriate. Owen, 153 Wn.2d at 788.

       To establish negligence, Rappaport must prove (1) duty,(2) breach, and (3)

injury proximately caused by the breach. Miller v. Jacoby, 145 Wn.2d 65, 74, 33 P.3d

68 (2001). Every person using a public street or highway has a duty to exercise

ordinary care to avoid placing others in danger and to avoid a collision. Martini v. State,

121 Wn. App. 150, 160, 89 P.3d 250(2004)(citing Robison v. Simard, 57 Wn.2d 850,

851, 360 P.2d 153(1961)). The failure to exercise ordinary care is a breach of the duty.

See Schwartz v. Elerding, 166 Wn. App. 608, 615, 270 P.3d 630 (2012). Under RCW

46.61.100(1)(a), "a vehicle shall be driven upon the right half of the roadway, except . . .

[w]hen ... passing another vehicle proceeding in the same direction."

                                             7
No. 75860-8-1/8

       If evidence shows that the driver failed to comply with the required standard of

care, the question of negligence is left to the jury. Walter v. King County Metro, 126

Wn. App. 904, 908, 109 P.3d 836(2005). "Il]ssues of negligence and proximate cause

are generally not susceptible to summary judgment.'" Owen, 153 Wn.2d at 788

(quoting Ruff v. King County, 125 Wn.2d 697, 703, 887 P.2d 886 (1995)).

       Hanson does not dispute that she had a duty to exercise ordinary care and that

she breached that duty by crossing the center line. But Hanson cites the rule in

Bohnsack v. Kirkham, 72 Wn.2d 183, 190,432 P.2d 554 (1967), to argue that based on

the uncontroverted physical facts, reasonable minds could only conclude no collision

occurred.

       In Bohnsack, the plaintiff alleged the defendant's car turned left into his lane of

travel and struck his car. Bohnsack, 72 Wn.2d at 184-85. At trial, the plaintiff testified

the defendant's car turned left "directly in front of him." Bohnsack, 72 Wn.2d at 188.

The defendant testified the collision occurred in his lane after the plaintiff crossed the

center line and entered his lane of travel. Bohnsack, 72 Wn.2d at 189. The police

officer testified "unequivocally" that the collision occurred in the plaintiffs lane of travel.

Bohnsack, 72 Wn.2d at 188. The officer testified the skid marks were "wholly on

[plaintiffs] side of the road." Bohnsack, 72 Wn.2d at 188-89. The jury returned a

verdict in favor of the defendant. Bohnsack, 72 Wn.2d at 185.

       The trial court granted a motion for a new trial because the "'evidence was

overwhelming'"that the collision occurred in the plaintiffs lane of travel. Bohnsack, 72

Wn.2d at 186.5 The Washington Supreme Court affirmed. Bohnsack, 72 Wn.2d at 195.



       5   Emphasis in original.


                                               8
No. 75860-8-1/9

The Supreme Court held that where"'physical facts are uncontroverted and speak with

a force that overcomes all testimony to the contrary, reasonable minds must follow the

physical facts, and therefore cannot differ.'" Bohnsack, 72 Wn.2d at 1906 (quoting

Fannin v. Roe, 62 Wn.2d 239, 243, 382 P.2d 264(1963)(reversing motion to dismiss at

the close of plaintiffs case-in-chief because the evidence showed "plaintiffs' vehicle

moved" upon impact)); see also Mouso v. Bellingham & N. Ry. Co., 106 Wash. 299,

303-04, 179 P. 848(1919)(reversing denial of defendant's motion for directed verdict

because the "uncontradicted testimony" of the civil engineer established plaintiff could

have seen the train in time to avoid the collision).

       Hanson contends that in the absence of corroborating physical evidence,

Rappaport's testimony cannot create a material issue of fact. Hanson argues the

GEICO repair estimate of her car and the photographs of Rappaport's car establish

"there was no damage to either vehicle."

       Viewing the evidence and all reasonable inferences in the light most favorable to

Rappaport, unlike in Bohnsack, the physical facts are not uncontroverted. Rappaport

testified that Hanson's car crossed over the center line and struck his vehicle.

Rappaport immediately called 911. While waiting for 911 to respond, Rappaport said

Hanson's mother wiped off "all signs of contact between [his] car and Hanson's car."

The record shows the GEICO damage estimate occurred after the accident and the

investigator did not take photographs of Rappaport's car until well after the collision.

       Credibility is a question for the jury to determine. Sanders v. Woods, 121 Wn.

App. 593, 600, 89 P.2d 312(2004); see also Johnson v. Spokane to Sandpoint, LLC,



       6 Internal   quotation marks omitted.


                                               9
No. 75860-8-1/10

176 Wn. App. 453, 457-58, 309 P.3d 528(2013)("Where different competing inferences

may be drawn from the evidence, the issue must be resolved by the trier of fact."). The

jury, not the court on summary judgment, must weigh the evidence. See Riley v.

Andres, 107 Wn. App. 391, 398, 27 P.3d 618(2001)(credibility is "especially important"

where material facts are based on affidavits); Senate Republican Campaign Comm. v.

Pub. Disclosure Comm'n, 133 Wn.2d 229, 245-46, 943 P.2d 1358(1997)(affidavit of

nonmovant must be taken as true for purposes of summary judgment). We reverse

summary judgment dismissal of Rappaport's personal injury lawsuit and remand for

trial.

Attorney Fees and Costs

          Rappaport requests fees and costs under RCW 4.84.010, RCW 4.84.080, RALJ

9.3, and RAP 14.3. RCW 4.84.080 does not support an award of attorney fees and

Rappaport is not entitled to costs under RAP 14. See Snyder v. Haynes, 152 Wn. App.

774, 783-84, 217 P.3d 787(2009). However, as the substantially prevailing party, on

remand Rappaport is entitled to statutory fees and costs under RALJ 9.3 and RCW

4.84.010.




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