          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


ADRIA MCGHEE, an individual,             )      No. 79316-1-I
                                         )
                     Appellant,
                                         )      DIVISION ONE
                     v.                  )
                                         )
CITY OF FEDERAL WAY,                     )      UNPUBLISHED OPINION

                     Respondent.         )      FILED: November 12, 2019



       MANN, A.C.J. —Adria McGhee appeals the trial court’s order granting summary

judgment to the City of Federal Way (City). McGhee contends the trial court erred

because the City’s motion relied on inadmissible evidence and therefore the motion

failed to negate McGhee’s claim that the City created the unsafe condition and her res

ipsa loquitor theory. We affirm.



       On November12, 2016, around 10a.m., McGheewas driving with hertwo

children on SW 21st Street, just south of SW 330th Street in Federal Way. While she

was driving, a tree branch fell on the front windshield of her car. Witnesses at the scene

removed the branch from McGhee’s front windshield and moved it to the sidewalk. The
No. 79316-1-1/2


branch cracked McGhee’s windshield and dented the roof of her car. The King County

Fire Department responded and checked on the occupants of the car. McGhee

reported no injuries to her or her children. The Federal Way Police responded, took

pictures, and prepared a report. The police reported the downed branch to the City for

removal.

        Gary Neiffer, a City maintenance worker, responded to the scene around 12:30

p.m. and disposed of the limb blocking the sidewalk. While at the scene, Neiffer

investigated the tree trunk to see if any other limbs were in danger of falling and noted

that the tree appeared healthy.

       When the police notified the City that a tree limb fell, a Citizen Action Request

(CAR) was created in the City’s database. The CAR was referred to Gene Greenfield,

the streets maintenance supervisor. Greenfield explained that “[i]f the CAR concerns an

issue in the City’s right-of-way, then it is forwarded to me for review.” In response to the

CAR, Greenfield “walked the site to see if there was any concern of other limbs falling

down” and “did not see anything of concern and did not recall other CARs regarding

trees in [the] vicinity. The tree from which the limb fell is set back about ten or more feet

behind the edge of the sidewalk.”

       After locating the tree, Greenfield verified that the width of the City’s right-of-way

is 40 feet from the center to the west edge. Greenfield spoke to Kathy Mathena, an

engineering technician with the City, to verify the length of the right-of-way. Greenfield

returned to the site and “located the center of the right-of-way through monuments, and

paced the distance from the center of the right-of-way to the edge of the right-of-way to

verify the tree is not within the City’s right-of-way.”

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       On December 30, 2016, McGhee filed a claim for damages with the City. On

January 30, 2018, McGhee filed a complaint for damages against the City in King

County Superior Court. The City moved for summary judgment, contending that

McGhee could not show that the City created the dangerous condition because the tree

is not located on its property and could not show that the City had constructive notice of

the dangerous condition. McGhee responded that the City’s evidence violated CR 56(e)

and therefore it failed to establish that the City had no duty to maintain the tree in a safe

condition and that the City’s motion did not negate McGhee’s constructive notice or res

ipsa loquitor theories of negligence. The trial court granted summary judgment in favor

of the City and dismissed McGhee’s claims.



       We review summary judgment orders de novo. “In a summary judgment motion,

the moving party bears the initial burden of showing the absence of an issue of material

fact.” Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).

If the defendant is the moving party and makes their initial showing, then the inquiry

shifts to the party with the burden of proof at trial to make a showing sufficient to

establish the existence of an element essential to that party’s case. Young, 112 Wn.2d

at 225. If the party with the burden of proof at trial fails to make that showing, then the

trial court should grant summary judgment. Young, 112 Wn.2d at 225.

      To survive a motion for summary judgment, a party must respond to the motion

with more than conclusory allegations, speculative statements, or argumentative

assertions of the existence of unresolved factual issues. Ruffer v. St. Cabrini Hospital,

56 Wn. App. 625, 628, 784 P.2d 1288 (1990). “[A] complete failure of proof concerning

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No. 79316-1-1/4


an essential element of the non moving party’s case necessarily renders all other facts

immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed.

2d 265 (1986). Thus, summary judgment is proper where there are no genuine issues

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

56(c). “A ‘material fact’ is a fact upon which the outcome of the litigation depends, in

whole or in part.” Barber v. Banker’s Life & Cas. Co., 81 Wn.2d 140, 144, 500 P.2d 88

(1972). In making the required showing, “the nonmoving party cannot rely on the

allegations made in its pleadings.” Young, 112 Wn.2d at 225. All reasonable

inferences from the evidence are considered in the light most favorable to the plaintiff.

Young, 112 Wn.2d at 226.

       To establish negligence, the plaintiff must prove four elements: “(1) the existence

of a duty to the person alleging negligence, (2) breach of that duty, (3) resulting injury,

and (4) proximate cause between the breach and the injury.” Nguyen v. City of Seattle,

179 Wn. App. 155, 164, 317 P.3d 518 (2014).

                                             A.

       It is also well settled that “[a] government entity has a duty to maintain its roads

so that they are reasonably safe for ordinary travel.” Nguyen, 79 Wn. App. at 164.

McGhee argues that the City failed to submit admissible evidence that the tree was not

part of its public right-of-way.

       Under CR 56(e), affidavits must be based on personal knowledge, set forth facts

that would be admissible in evidence, and show affirmatively that the affiant is

competent to testify to the matters stated therein. Here, the City presented evidence



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that the tree was not within its right-of-way.1 Rather than rebut the City’s evidence,

McGhee contends that the City’s evidence failed to satisfy CR 56(e) and was therefore

insufficient to show that the tree was not the City’s responsibility.

        McGhee contends that Greenfield’s declaration did not recite a sufficient

foundation to show that Greenfield identified the correct tree, that his “‘pacing’ of the

distance [was], at best, a rough estimate”, and therefore the City did not provide

admissible evidence on summary judgment to show that the tree was not in the City’s

right-of-way. We disagree.

        Greenfield is the City’s streets maintenance supervisor and has held the position

for five years. As streets maintenance supervisor, Greenfield reviews the condition of

trees when the City receives a CAR about potentially dangerous trees. After receiving a

CAR about the tree limb blocking the sidewalk, Greenfield “walked the site to see if

there was any concern of other limbs falling down.” Greenfield “did not see anything of

concern and did not recall other CARs regarding trees in this vicinity. The tree from

which the limb fell is set back about ten feet or more behind the edge of the sidewalk.”

Later, Greenfield verified with Mathena that the width of the right-of-way is 40 feet from

the center of the street to the west edge point. Mathena submitted a declaration

explaining her personal knowledge about the City’s right-of-ways and that she consulted

the publically available plats through the King County Department of Assessments.

Greenfield “returned to the site, located the center of the right-of-way through




        1 This is not a case where the city was notified that a branch had fallen onto the road, and

neglected to expeditiously remove the branch, causing damage to a vehicle.
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No. 79316-1-1/6


monuments, and paced the distance from the center of the right-of-way to the edge of

the right-of-way” and verified that the tree was not within the City’s right-of-way.

       Greenfield’s affidavit is based on personal knowledge. Greenfield indicates that

he inspected the site to see if there was other concerning trees. During Greenfield’s

initial inspection, he identified the tree with the broken limb. Greenfield returned to the

site and measured the distance between the right-of-way and the tree. McGhee

disputes the method that Greenfield used to measure the distance between the tree and

the center of the right-of-way as a rough estimate at best. While Greenfield’s pacing

may result in a rough estimate of distance, this evidence is still admissible, It was then

McGhee’s burden to present evidence that the tree was in City’s the right-of-way.

McGee failed to meet this burden and thus failed to establish the City’s duty.

                                                 B.

       McGhee next contends that the City failed to negate the presumption of

negligence under the res ipsa loquitor doctrine. A plaintiff may rely on the res ipsa

loquitor permissive inference of negligence if “(1) the accident or occurrence that

caused the plaintiff’s injury would not ordinarily happen in the absence of negligence,

(2) the agency or instrumentality that caused the plaintiff’s injury was in the exclusive

control of the defendant, and (3) the plaintiff did not contribute to the accident or

occurrence.” Nguyen, 179 Wn. App. at 172. Because McGhee failed to carry her

burden to present evidence that the tree was located on the City’s right-of-way, and thus

under the City’s control, McGhee’s res ipsa loquitor argument necessarily fails.




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      We affirm.



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WE CONCUR:



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