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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                           ZU13 SEP -4 AM 10: 22
                                         DIVISION II
                                                                       STATE OF VIASMkIGTON
JOHN B.DILLINGER, a single individual,                              Nog 4,
                                                                        ,

                                Appellant,

         V.



RICHARD M.DIXSON, and JANE DOE
DIXSON, and the marital community
properties comprised thereof,                                UNPUBLISHED OPINION




         FEARING, J. .
                  T.
                   P Richard Dixson struck pedestrian John Dillinger with Dixson's car,

while Dillinger crossed a highway outside a crosswalk. Dillinger sued Dixson for negligence,

and the trial court dismissed the case on summary judgment. Because we may not weigh the

evidence and because Dillinger shows a genuine issue of material fact on whether Dixson was

negligent, we reverse and remand.

                                              FACTS


         The pedestrian car accident occurred between 6:0 and 7:0 p. ., December 17,
                        -                              3       0   m on

2009, on SR (service road)305, in Poulsbo, south of the highway's intersection with Hostmark

Road. Here, SR 305 runs north and south and contains two lanes in each direction and a fifth

center turn lane. Dixson drove southbound on SR 305. Witness Sharon Bohl drove northbound


on SR 305. Each approached the intersection at Hostmark Road, which is controlled by a traffic

light. Dixson arrived first and stopped at a red traffic light. The intersection includes

crosswalks.


1
    Judge Fearing is a Division Three judge serving with Court of Appeals, Division Two,under
CAR     21( ).
          a
No. 43586 1 II
          - -




       As Sharon Bohl approached the intersection at Hostmark Road, she noticed a man

standing on the sidewalk to her left. This man was John Dillinger,who wore brown clothing.

Street lights illuminated the sidewalk. By Bohl's estimation, she first noticed Dillinger about

100 yards away as she traveled at about 40 miles per hour. As Bohl drove past Dillinger and

before the traffic light turned green for her and Dixson, John Dillinger stepped into the highway

and walked slowly across it. Before Bohl reached the intersection, the light turned green. With

the.events unfolding, Sharon Bohl thought to herself. Oh my God. He's going to get hit."
                                                      "

Clerk's Papers (CP)at 32. She believed that, because of the rain,the glare, and the darkness,

southbound drivers would not see Dillinger walking in the middle of the highway.

       Richard Dixon drove in the lefthand or inner southbound lane on SR 305. Once the
                                       -


traffic light turned green, Dixson's car accelerated, and after an unknown distance he heard a

noise warning him he hit something. He pulled into the middle turn lane and saw that he had hit

a person. Dixon testified that he did not see Dillinger at all before hitting him. Dixson was

probably traveling about 15 to 25 miles per hour. The front left side of Dixson's car collided

with Di.
     s body, damaging the car and injuring Dillinger. Sharon Bohl also heard an
       11inger'

impact, turned around, and attempted to provide aid.

       John Dillinger was 70 years old at the time of the accident. He does not remember the

accident or what happened before it. All he remembers is waking up in a hospital. Medics

smelled alcohol on Dillinger's breath, but Dillinger could not answer how many drinks he

consumed. A blood alcohol test taken at the hospital showed a blood alcohol level of 294 mg/ L
                                                                                           d

milligrams per deciliter),
                         more than three times the statutory intoxication level. Officer Sabado

found empty mini whiskey bottles in Dillinger's backpack. John Dillinger has a history of public

intoxication.




                                                 2
No. 43586 1 II
          - -




        Officer Ricki Sabado, who arrived at the scene after the accident, stated that the

southbound lanes of SR 305 in this area were poorly lit,though they were better lit than the

northbound lanes. Sabado stated that the street lights failed to illuminate the center of the five -

lane road. Richard Dixson declared that it was raining. Sharon Bohl stated in one declaration

that it was raining and, in another declaration, that it was clear. During her deposition, Bohl

stated that she could not recall if it was raining, but, if it was not, the road was shiny and left a

glare. Officer Sabado stated that it was raining.

        Dixson moved for summary judgment, arguing that Dillinger did not show evidence that

Dixson failed to exercise reasonable care. The trial court granted the motion and dismissed the

case.



                                                  ANALYSIS


        Dillinger claims the trial court erred by granting summary judgment because a genuine

issue of material fact exists regarding Dixson's negligence. We agree.

        Summary judgment should be granted if the evidence establishes there is no genuine

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

56( );
  c Ruffv. County ofKing, 125 Wn. d 697, 703, 887 P. d 886 (1995).To succeed on a
                                2                  2

summary judgment motion, the moving party must first show the absence of an issue of material

fact. Ingersoll v. DeBartolo, Inc., Wn. d 649, 654, 869 P. d 1014 (1994).The burden then
                                  123 2                  2

shifts to the nonmoving party to set forth specific facts showing a genuine issue for trial.

Ingersoll, 123 Wn. d at 654. We must construe all facts and reasonable inferences in the light
                 2

most favorable to the nonmoving party. Lybbert v. Grant County, 141 Wn. d 29, 34, 1 P. d
                                                                      2              3

1124 (2000).On appeal of summary judgment, the standard of review is de novo and we

perform the   same   inquiry   as   the trial court.   Lybbert, 141 Wn. d
                                                                      2     at 34.
No. 43586 1 II
          - -




       Dixson emphasizes, in support of affirming the trial court, the facts that Dillinger was

intoxicated and jaywalking. We agree that John Dillinger, by crossing in the middle of the road

may have violated statutory duties found in RCW 46. 1. But the question on appeal does not
                                                  6
concern the negligence of Dillinger. Under Washington's rules of comparative fault, Dillinger

may be negligent and still entitled to recovery. See RCW 4.2. A Washington statute, RCW
                                                         005.
                                                          2

060,
5.0.bars Dillinger from any recovery, if the trier of fact determines his intoxication was a
 4

proximate cause of his injuries and he was more than fifty percent at fault. But that was not the

issue the trial court was asked to decide. Therefore we only concern ourselves as to whether any

facts support negligence on behalf of Richard Dixson:

       A controlling statute is former RCW 46. 1.2008),
                                           245 (
                                             6        which reads:

       E] driver of a vehicle shall exercise due care to avoid colliding with any
        very
       pedestrian upon any roadway and shall give warning by sounding the horn when
       necessary and shall exercise properprecaution upon observing ...      any obviously
       confused or incapacitated person upon a roadway.

       A] of the road right of way is relative rather than absolute, and does not absolve
        rule

one in the favored position from the duty to exercise due care to avoid an accident."Cox v.

Kirch, 12 Wn. d 678, 682, 123 P. d 328 (1942).Thus, John Dillinger and Richard Dixson had
            2                  2

reciprocal duties. Dixson may not have " bserved"Dillinger before the collision, but the driver
                                       o

of a vehicle is charged with seeing what is available,to be seen. Day v. Goodwin, 3 Wn. App.

940, 944, 478 P. d 774 (1970).A driver will not be heard to say that he did not see an object
               2

which he plainly could have seen had he looked. Chapin v. Stickel, 173 Wash. 174, 178, 22 P. d
                                                                                           2

290 (1933);
          Day, 3 Wn. App. at 944. Nor does the weather automatically excuse Dixson from




1 Amendments to Chapter 46. 1 RCW occurred in 2010,but do not affect our analysis. LAWS
                          6
OF 2010, ch. 242, §2.


                                                 5
No. 435 86 1 II
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negligence. Inclement weather and reduced visibility places greater vigilance on both driver and

pedestrian. Burnham v. Nehren, 7 Wn. App. 860, 864, 866, 503 P. d 122 (1972).
                                                              2

       Sharon Bohl saw John Dillinger leave the sidewalk and enter the road. Despite her

concern that oncoming traffic would not see Dillinger, a trier of fact could reasonably conclude

that Dixson should have also seen Dillinger upon his entering the highway and, since Dillinger

was walking slowly, could have avoided the accident. This is not a case where a child darted
from behind an obstruction and could not be seen in time to avoid the accident. See Burns v.

Harfst, 42 Wn. d 795, 259 P. d 379 (1953);
             2             2             Ellefsen v. Wilt, 36 Wn. d 56,217 P. d 318 (1950).;
                                                                2           2

Haydon v. Bay City Fuel, 167 Wash. 212, 9 P. d 98 (1932).John Dillinger walked unhurriedly
                                           2

across the highway, reached the second lane, and was even struck on the far side of Dixson's car.

       We return to where we began— ith a review of summary judgment principles.
                                  w

Negligence is generally a question of fact not susceptible to summary judgment. Ruff, 125 -

Wn. d at 703. The jury not only determines the facts, but, after determining the conditions that
  2

existed, also draws a conclusion as to the reasonableness of the actors' conduct. Crowl v. West

Coast Steel Co., Wash. 426, 432, 186 P. 866 (1920).Any doubts as to the existence of a
               109                                  "

genuine issue of material fact is resolved against the moving party."
                                                                    Atherton Condo.

Apartment-Owners Assn Bd. ofDir. v. Blume Dev. Co., Wn. d 506, 516, 799 P. d 250
                                                  115 2                  2

1990).The purpose of the summary judgment motion is to determine whether there is a triable

issue of fact, not which party is likely to prevail at trial. Hall v. Stamm, 208 Ill.App. 3d 83, 566

2d 995, 997 (1991).Dillinger has shown an issue of triable fact.
N. .
 E

        Alternatively, Dixson argues that Dillinger fails to raise an issue of fact on proximate

causation. He contends Dillinger failed to offer any evidence showing that, if he should have

seen Dillinger,he would have seen him in time to avoid the collision. As with negligence,


                                                  5
No. 43586 1 II
          - -




proximate cause is also typically a jury question. Bauer v. White, 95 Wn. App. 663, 669, 976

P. d 664 ( 999).
 2       1

       A jury could conclude that had Dixson been attentive, he could have stopped, or not

accelerated, his car such as to avoid the accident. But Dixson did not move for summary

judgment on this basis. Dixson first raised proximate causation in his reply below. This is

improper. " t is the responsibility of the moving party to raise in its summary judgment motion
          I

all of the issues on which it believes it is entitled to summary judgment. Allowing the moving

party to raise new issues in its rebuttal materials is improper because the nonmoving party has no

opportunity to respond."White v. Kent Med. Ctr.,
                                               Inc., S., Wn.App. 163, 168, 810 P. d 4
                                                   P. 61                        2

1991).

       Because there is a genuine issue of material fact whether Dixson was negligent in not

seeing Dillinger in the road in time to avoid the accident, the trial court erred in granting the

defendant's motion for summary judgment. We reverse and remand for further proceedings.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0


                                                         J. !               Z7.
                                                            0          FEARING, J.
We concur:




               C. '
                d



       AR.




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