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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GAYLE TORGERSON,                                 No. 69421-9-1

                          Appellant,             DIVISION ONE




THE CITY OF SEATTLE,
                                                 ORDER AMENDING OPINION
                          Respondent,

AMELIA HARTMAN and JOHN DOE
HARTMAN, wife and husband, and their
marital community,

                          Defendants.
       The Respondent City of Seattle filed a motion to correct footnote 7 ofthe opinion
filed on March 31, 2014. A majority ofthe panel having determined that the motion
should be granted and the opinion amended to delete footnote 7 on page 12, now,
therefore, it is hereby

       ORDERED that the opinion ofthis court in the above-entitled case filed March

31, 2014 be amended as follows:

              Footnote 7 on page 12 shall be deleted. All subsequent footnotes
              shall be renumbered accordingly.
                                                                                  o     •-.•-'c

                                                                                  Jt-   3> -r-
       The remainder of this opinion shall remain the same.                       33»
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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GAYLE TORGERSON,                                No. 69421-9-1


                       Appellant,               DIVISION ONE

             v.



THE CITY OF SEATTLE,                                                            r»o
                                                                                CD
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                                                UNPUBLISHED OPINION              jc-
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                                                                                3
                        Respondent,                                             =3>      •~^zr:
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                                                                                CO       ~* ' V-
AMELIA HARTMAN and JOHN DOE
                                                                                —
                                                                                         -   :* ~----

                                                                                         t> -r^
HARTMAN, wife and husband, and their                                            -T3      o~j p '•
                                                                                ZS.      z:z ''^
marital community,                                                              no
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                                                                                         —   •,.
                                                                                         "~' Z ,"i

                        Defendants.             FILED: March 31, 2014

      Schindler, J. — Gayle Torgerson was hit by a car traveling 30 m.p.h. while she

was walking across a busy intersection in a marked crosswalk in a designated school

zone. Torgerson appeals summary judgment dismissal of her negligence claims

against the city of Seattle. We reverse and remand for trial.

                                         FACTS

       California Avenue Southwest is an arterial that runs north/south through West

Seattle. The marked crosswalk at the intersection of California Avenue Southwest and

Southwest Dakota Street is located "just one block north of the busy West Seattle

Junction commercial district." The crosswalk is marked with broad white stripes and
No. 69421-9-1/2


crosses three lanes of traffic: a northbound lane, a center turn lane, and a southbound

lane. The crosswalk is approximately 60 feet long running diagonally from the

southwest corner of the intersection to the southeast corner of the intersection. The

crosswalk is approximately 10 feet longer than other crossings along California Avenue

Southwest. There is a bus stop located on the northeast and the southwest corner of

the intersection.

       In 2007, the city of Seattle (City) designated as a school zone "every street that

borders an accredited school with K-12 and more than 20 students," and required

installation of reduced speed school zone signs on streets bordering school property

and at "uncontrolled marked crosswalks on arterial and non-arterial streets within 300[

feet] of school property."

       The crosswalk at the intersection of California Avenue Southwest and Southwest

Dakota Street is designated as a school crosswalk located in a school zone. The Tilden

School, a small private school, is located within 100 feet of the intersection. Three other

schools serving more than 1,000 children are located within one to two blocks of the

intersection. The schools open between 7:30 a.m. and 9:00 a.m. with before-school

activities beginning as early as 7:00 a.m.

       In January 2010, there were yellow pentagon-shaped school crossing signs on

the southeast comer of the intersection. The school crossing signs depict an adult and

child walking. There were also pole-mounted buckets containing florescent yellow

"crossing flags" for pedestrians to use at either end of the crosswalk. The City had

installed a 20 m.p.h. school speed limit sign that faced drivers on Southwest Dakota

Street, but had not installed a reduced 20 m.p.h. school speed limit sign facing drivers
No. 69421-9-1/3


on California Avenue Southwest.1 The posted speed limit on California Avenue

Southwest was 30 m.p.h.

       Gayle Torgerson typically used the marked school crosswalk twice a day during

the work week to get to the bus stop on the west side of California Avenue Southwest.

At 7:43 a.m. on January 12, 2010, Torgerson waited for a safe time to cross California

Avenue Southwest before walking across the intersection in the marked crosswalk.

Meanwhile, 82-year-old Amelia Hartman was driving approximately 30 m.p.h.

southbound on California Avenue Southwest. Hartman's car struck Torgerson as

Torgerson was more than halfway across the intersection. Torgerson hit the windshield
of the car and was thrown approximately 70 feet south of the intersection. Police and
emergency personnel arrived and transported Torgerson to Harborview Medical Center.
Torgerson suffered multiple broken bones and a head injury.

       Hartman provided a written statement to police. Hartman said she was driving
around the posted 30 m.p.h. speed limit when she suddenly noticed Torgerson and tried
to brake, "[b]ut itwas too late." Hartman states, in pertinent part:

       Iwas going to the Holy Rosary Church from home. It was busy at that
       time. Iwas driving southbound on California, approaching SW Dakota.
       ... All of a sudden [Torgerson] was there in front of me ... on my
       windshield. . .. She was right in my path as Iwas coming south. Ithought
       Isaw a figure and Itried to set my foot on my brake. But it was too late. It
       happened so fast.

       In her deposition, Hartman testified that Torgerson "was just barely out of my
path      She was already past my pathway, and Isaw this leg." Hartman testified that
when she saw Torgerson's leg, her car was "in the crosswalk." Hartman knew the

marked crosswalk was in a school zone.


       1The City does not dispute that the crosswalk is a school crosswalk within a school zone.
                                                   3
No. 69421-9-1/4


      Seattle Police Department Detective Karen Belshay conducted an investigation.

Detective Belshay states that "more likely than not, HARTMAN was travelling at or near

the speed limit of 30-mph with no evidence of pre-impact braking." Detective Belshay

concluded the collision was caused by the failure of Hartman to yield to a pedestrian in

the marked crosswalk.2

      Two months after the accident, on March 19, 2010, the City installed a reduced

school speed limit sign on California Avenue Southwest and conducted speed studies at
the intersection. The studies showed that most cars drove between 32 and 33 m.p.h.

on California Avenue Southwest, with 700 vehicles driving through the intersection in

the morning and 800 vehicles in the afternoon between 3:00 p.m. and 4:00 p.m.
       As a result of the studies, the City submitted a grant proposal to install flashing

beacons at the crosswalk located at California Avenue Southwest and Southwest

Dakota Street. The grant proposal states, "The crosswalk is a designated school
crossing for four schools located within one to two blocks of the intersection - the Tilden
School, Holy Rosary, Seattle Lutheran High School, and Hope Lutheran." The grant
proposal also states that the crosswalk is in a "High Priority Area in the Seattle
Pedestrian Master Plan[,] just one block north of the busy West Seattle Junction

commercial district," and the intersection poses a "long crossing distance for

pedestrians (60 feet) and challenging sight lines for drivers."



       2 The report states, in pertinent part:
       The proximate cause ofthis collision was HARTMAN failing to yield right ofway to the
       pedestrian (Torgerson) in the marked crosswalk. HARTMAN and Torgerson both
       described the weather as a light misty rain with the collision occurring at dawn.
       HARTMAN struck Torgerson in the marked crosswalk, causing her serious injuries.
       Torgerson had already walked across the northbound lane oftravel and had started
       walking into the southbound lane when the collision occurred.
No. 69421-9-1/5


       On March 11, 2011, Torgerson filed a lawsuit against Hartman and the City.

Torgerson alleged the City breached its duty to design and operate the California

Avenue Southwest and Southwest Dakota Street intersection in a reasonably safe

condition, and failed to install adequate signage including a reduced 20 m.p.h. speed

limit sign at the school zone intersection.

       The City filed a motion for summary judgment. For purposes of the summary

judgment, the City stipulated to the elements of duty, breach, resulting injury, and cause

in fact. The City argued Torgerson could not establish that any act or omission of the
City was the legal cause of the collision. In opposition, Torgerson asserted the City's

failure to install a 20 m.p.h. reduced speed limit sign proximately caused her injuries.

Torgerson argued that if Hartman had been driving 20 m.p.h., her car would not have
struck Torgerson. In support, Torgerson submitted declarations from Certified Human
Factors Professional Richard Thomas Gill, PhD, and civil engineer Edward Stevens.3

       Gill states, "[l]t is my opinion that if Amelia Hartman had been travelling 20 MPH
on California Ave. SW prior to this collision, the accident most probably would not have

occurred." Gill also states that "reduced speed limits and school speed zone signs

increase pedestrian safety" and "atslower speeds, a vehicle's brake to a stopping
distance decreases exponentially as speed is reduced." Gill concluded that if Hartman

had been travelling 20 m.p.h., Torgerson "would have cleared the intersection and

safely made it to the other side."




         3Torgerson also submitted excerpts from the United States Department ofTransportation
Federal Highway Administration "Manual on Uniform Traffic Control Devices" (MUTCD), a copy ofthe
City's grant application for flashing beacons at the intersection, and excerpts ofthe police report
regarding the accident. The MUTCD provides "the national standard for all highways open to public
travel." WAC 468-95-010.
No. 69421-9-1/6



       Stevens states that "the lack of a reduced school speed limit signage or

device . . . created an unreasonably dangerous condition at this crosswalk." Stevens

asserts the City "violated the 2003 Manual on Uniform Traffic Control Devices (MUTCD)

and violated 11.52.100 of the Seattle Municipal Code" by not placing reduced 20 m.p.h.

speed limit signs at the intersection before the accident.

       In reply, the City claimed a reduced 20 m.p.h. speed limit sign would not have

prevented the collision. The City asserted a school zone reduced speed limit sign

applies "only 'When Children Are Present,'" and there was no evidence that any

children were present at the time of the accident. The court granted a continuance to

allow Torgerson additional time to respond to the argumentthat a reduced speed limit

sign would not have prevented the collision.

       In supplemental briefing, Torgerson argued the Washington Administrative Code
(WAC) did not require using only "when children are present" signage but instead
provides a number of alternative options for use in conjunction with a school zone
reduced speed limit sign. Torgerson also submitted declarations from Hartman,

accident reconstruction expert Paul Olson, and a second declaration from Gill.

       Hartman states that she "knew the speed limit was 30 MPH on California Ave.

near the intersection with Dakota, southbound," but "[i]f the speed limit had been 20

mph on California Ave. approaching the crosswalk at the intersection with Dakota, I
would have followed the law and not have exceeded 20 mph."
No. 69421-9-1/7


       Accident reconstruction expert Olson states that if Hartman had been travelling at

20 m.p.h. when she approached the intersection, "Torgerson would not have been

struck." Olson states, in pertinent part:

              7.      At 20 mph, a driver would have had approximately 3.9
       seconds more time to see pedestrians crossing the street in the crosswalk
       than drivers traveling 30 mph (from her original position to the point of
       impact).
             8.      With 3.9 seconds additional time, it is more likely than not
       that Ms. Hartman would have seen Ms. Torgerson in time to stop or avoid
       hitting her. During this additional 3.9 seconds Ms. Torgerson would have
       finished crossing the street and would have been several feet onto the
       western sidewalk.
              9.     A sign "School Speed Limit 20 when children are present"
       puts drivers on notice ofthe likelihood of child pedestrians in the area,
       which means that drivers will be watching for children, and will anticipate
       the need to slow down, particularly during the times of day that children
       are likely to be present in the vicinity of a school or schools.
       The second declaration from Gill describes the mathematical calculations he

used to reach the conclusion that if Hartman had been driving 20 m.p.h., she would not

have collided with Torgerson. Gill states, in pertinent part:

       6.     [Assuming Ms. Torgerson walked no faster than 5 feet per second,
       it would have taken Ms. Torgerson at least 6 seconds to walk the 30 feet
       from the eastern curb of California Avenue SW to the point of impact,
       halfway through the southbound lane.
       7.     According to the police report, Ms. Hartman was travelling south on
       California Avenue SW in her car at 34 miles an hour, or roughly 50 FPS
       [(feet per second)], when the collision occurred. Six seconds prior to the
       collision, at the time Ms. Torgerson stepped off the curb onto the
       crosswalk, Ms. Hartman was approximately 300 feet north of the point of
       impact.
       8.      If Ms. Hartman had been going 20 miles an hour or 29.3 FPS,
       which is the appropriate speed limit in a school zone, for the six seconds
       prior to the collision, it would have taken herjust over 10 seconds to get to
       the point of impact. In otherwords, she would have missed Ms.
       Torgerson by four seconds.
       9.      Since Ms. Torgerson was halfway through the southbound lane of
       traffic at the time of impact, she would have needed just over 1 second or
       so to cross the remaining 6 feet and safely reach the western curb. Since
No. 69421-9-1/8


      it would have taken Ms. Hartman 10 seconds to get to the impact point
      going 20 MPH, Ms. Torgerson would have safely crossed with seconds to
      spare.

      In addition, Gill states that the purpose of a 20 m.p.h. school speed limit sign is to

slow driving speeds when children are likely to be present:

      The purpose of a school speed limit sign, stating a 20 mph 'when children
      are present,' is to cause drivers to slow down to 20 mph in anticipation of
      children in or around the crosswalk area; that is, to have drivers reduce
      their speed to 20 mph as they drive through the designated areas during
      times when children are likely to be present (i.e. such as when school is in
      session, and particularly during the morning/afternoon commute time for
      children). A reasonable, prudent driver would not keep driving at 30 mph
      until the driver actually sees a child, then hit the brakes and reduce speed
      to 20 mph.

      Torgerson also submitted evidence showing that the four other schools in the

area, Holy Rosary, Saint Christopher Academy, Seattle Lutheran High School, and

Hope Lutheran School, had start times ranging from 7:30 a.m. to 9:00 a.m. and before-

school activities beginning as early as 7:00 a.m.

       The court granted the motion for summary judgment dismissal of the negligence

claims against the City "as to causation only." The court granted Torgerson's motion to

certify the following issue for discretionary review under RAP 2.3(b)(4):

       Was the City's failure to post a speed limit of 20 MPH in a school zone the
       proximate cause of plaintiffs injures, which were sustained while plaintiff
       was walking in a marked crosswalk as a result of a collision with a driver
       who was traveling in excess of 20 MPH?

We granted discretionary review.




                                             8
No. 69421-9-1/9


                                        ANALYSIS

       Torgerson contends the court erred in granting summary judgment dismissal of

the negligence claims against the City. The City asserts neither the failure to install a

reduced speed limit sign nor the speed of the driver is a legal cause of the collision.

       We review summary judgment de novo. Hartley v. State, 103 Wn.2d 768, 774,

698 P.2d 77 (1985). Summary judgment is appropriate if the pleadings, depositions,

and affidavits show there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c). We consider the facts and all
reasonable inferences from the facts in the light most favorable to the nonmoving party.

Hertoq v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999); Michael v.

Mosauera-Lacv, 165 Wn.2d 595, 601, 200 P.3d 695 (2009). Summary judgment is only

appropriate if, from all the evidence, reasonable persons could reach but one
conclusion. Vallandiqham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109

P.3d 805 (2005). " '[A]n expert opinion on an "ultimate issue offact" is sufficient to
defeat a motion for summary judgment.'" Xiao Ping Chen v. City ofSeattle, 153 Wn.
App. 890, 910, 223 P.3d 1230 (2009)4 (quoting Eriks v. Denver, 118 Wn.2d 451, 457,
824P.2d 1207(1992)).

       In a negligence action, a plaintiff must prove (1) the existence ofa duty, (2)
breach ofthat duty, (3) resulting injury, and (4) proximate cause. Deael v. Majestic
Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996).




         (Alteration in original.)
No. 69421-9-1/10


      A municipality has the duty to design, build, and maintain reasonably safe

roadways. Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002).

Washington has adopted the specifications for a uniform system of traffic control signal

requirements as set out in the MUTCD. RCW 47.36.020; WAC 468-95-010. The

MUTCD requires installation of reduced speed limit signs where "a reduced speed zone

for a school area has been established." The Seattle Municipal Code (SMC) states,

"[N]o person shall operate any vehicle at a speed in excess of twenty (20) miles per

hour when passing any marked school or playground crosswalk." SMC 11.52.100.

Reduced speeds in a school zone extend 300 feet in either direction from marked

school crosswalks. SMC 11.52.100.

       Proximate cause consists of cause in fact and legal causation. Hartley, 103

Wn.2d at 777. "There may be more than one proximate cause of an injury." Travis v.

Bohannon, 128 Wn. App. 231, 242, 115 P.3d 342 (2005). "Cause in fact, or 'but for'

causation, refers to 'the physical connection between an act and an injury.'" Anq v.

Martin, 154 Wn.2d 477, 482, 114 P.3d 637 (2005) (quoting Hartley, 103 Wn.2d at 778).

Cause in fact is usually a question of fact for the jury. Joyce v. Dep't of Corr., 155

Wn.2d 306, 322, 119 P.3d 825 (2005). The court may determine cause in fact as a

matter of law only if reasonable minds could not differ. Joyce, 155 Wn.2d at 322.
       Legal causation is a question of law. Kim v. Budget Rent A Car Svs.. Inc., 143

Wn.2d 190, 204, 15 P.3d 1283 (2001). "[L]egal cause is grounded in policy

determinations as to how far the consequences of a defendant's acts should extend."

Schoolevv. Pinch's Deli Mkt, Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998). The

legal causation analysis focuses on whether, as a matter of policy, the connection


                                             10
No. 69421-9-1/11


between the ultimate result and the act of the defendant is too remote or insubstantial to

impose liability. Schoolev, 134 Wn.2d at 478-79.

       The City asserts that even if it had installed a reduced speed limit sign, the sign

would be in effect only when school children are present, and there is no evidence

children were present. Therefore, the City argues, the reduced speed limit sign would

not have prevented the collision.

      The premise of the City's argument is that under WAC 468-95-340, the reduced

speed limit sign would have stated, "SCHOOL [ ] SPEED LIMIT 20 [ ] WHEN

CHILDREN ARE PRESENT."5 The regulations for the signage to use in a school zone

do not support the premise of the City's argument. Under WAC 468-95-340, a reduced

school speed limit sign would not have necessarily used the option of "when children

are present." WAC 468-95-340 contains depictions of the signs used in a reduced

school zone speed limit. Under WAC 468-95-340, all school zone speed limit signs

contain a top plaque reading "SCHOOL" and a center plaque indicating a 20 m.p.h.

speed limit. WAC 468-95-340 sets out a number of different options to use for the

bottom plaque to indicate the specific times the school speed limit is in effect, including

(1) "7:30-8:30 AM [ ] 2:30-3:30 PM," (2) "WHEN CHILDREN ARE PRESENT," (3)

"WHEN FLASHING," (4) "MON-FRI," or (5) "WHEN FLAGGED."6




       5 (Emphasis added.)
       6 We note WAC 468-95-340 was amended in 2011 to reflect the amended 2009 edition of the
MUTCD. WSR 11-23-101 (Dec. 19, 2011). Because the amendments to WAC 468-95-340 make no
substantial changes, we cite the current statute.

                                               11
No. 69421-9-1/12


       Further, the work order the City submitted to install the speed limit sign after the

accident on California Avenue Southwest requested installation of a 20 m.p.h. school

zone sign that used the option of "when flashing" rather than "when children are

present" for the bottom plaque.

       The City also argues Torgerson presented only speculative evidence that a

reduced speed school zone sign would have prevented the collision.7 We disagree.

Torgerson presented competent evidence that the collision would not have occurred if

the City had installed a 20 m.p.h. reduced speed sign, including the declarations of

expert witnesses Gill and Olson. For instance, accident reconstruction expert Olson

states that in his opinion, if "Ms. Hartman [had] been going 20 mph when she

approached and entered the crosswalk, Ms. Torgerson would not have been struck."

Olson states, in pertinent part:

              7.      At 20 mph, a driver would have had approximately 3.9
       seconds more time to see pedestrians crossing the street in the crosswalk
       than drivers traveling 30 mph (from her original position to the point of
       impact).
             8.        With 3.9 seconds additional time, it is more likely than not
       that Ms. Hartman would have seen Ms. Torgerson in time to stop or avoid
       hitting her. During this additional 3.9 seconds Ms. Torgerson would have
       finished crossing the street and would have been several feet onto the
       western sidewalk.


       Gill states in his declaration that "if a 20 mph school speed limit sign had been in

place on the morning of the accident, Ms. Hartman most likely would have slowed to 20

mph in anticipation of children being close to the crosswalk, even if she had not seen

children there." Gill also stated that "[a] reasonable, prudent driver would not keep




       7We note the City did not move to strike any of the declarations or evidence Torgerson submitted
in opposition to summary judgment.

                                                 12
No. 69421-9-1/13


driving at 30 mph until the driver actually sees a child, then hit the brakes and reduce

speed to 20 mph."

       The City relies on Channel v. Mills, 77 Wn. App. 268, 890 P.2d 535 (1995), to

assert speed cannot be the legal cause of the collision. Channel does not support the

City's argument. Channel addresses "whether, and when, a favored driver's speed
should be deemed a 'proximate cause' ofa collision." Channel, 77 Wn. App. at 271.8
Channel involved an intersection collision where the car driven by the defendant

entered the intersection on a green light and therefore was the "favored driver."

Channel, 77 Wn. App. at 270. The disfavored driver entered the same intersection on a
red light. The disfavored driver sued, arguing she was entitled to recover damages
because the defendant could have avoided hitting her but for his excessive speed.

Channel, 77 Wn. App. at 270. On appeal, the court held that if excessive speed does
no more than bring the favored driver and disfavored driver togetherto the same
location at the same time, excessive speed is remote rather than "proximate" and

proximate causation is not established. Channel. 77 Wn. App. at 277. But here, unlike
in Channel, there is no dispute thatTorgerson, as a pedestrian in a marked crosswalk,
had the right of way. RCW 46.61.235(1); SMC 11.40.040.9
        In a statement of additional authority, Torgerson cites a recent supreme court

case that clarifies the question of legal causation in the context ofa municipality's duty


        8 (Emphasis added.)
        9Further, contrary tothe City's assertion, Hartman's familiarity with the road conditions "does not
as a matter of law insulate the county from liability," and whether her intervening negligence is a
superseding cause of Torgerson's injury a question of fact for the jury. Tanauma v. Yakima County, 18
Wn. App. 555, 560, 569 P.2d 1225 (1977); Travis. 128 Wn. App. at 242 ("Washington courts have
consistently held that it is for the jury to determine whether the act of a third party is a superseding cause
or simply a concurring one."); Schoolev, 134 Wn.2d at482 (only an intervening act that is not reasonably
foreseeable constitutes a superseding cause).

                                                      13
No. 69421-9-1/14


to design and maintain reasonably safe roadways. In Lowman v. Keller, 178 Wn.2d

165, 309 P.3d 387 (2013), the court held that ifthe jury found negligent placement of a

utility pole was a cause of the plaintiffs injuries, it "cannot be deemed too remote for

purposes of legal causation." Lowman, 178 Wn.2d at 171. In other words, ifcause in

fact is established and the injuries are within the scope of the duty owed, "there is no

basis to foreclose liability." Lowman, 178 Wn.2d at 172. Likewise, here, if the collision

was in fact caused by the failure to install a reduced speed sign in the designated

school zone, it is not too remote for purposes of legal causation.

       We reverse summary judgment dismissal of the negligence claims against the

City and remand for trial.




                                               SjVO,:.^oa,;
WE CONCUR:




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                                             14
