                                                                        FILED 

                                                                       MAR 3, 2015 

                                                              In the Office of the Clerk of Court 

                                                             WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


HARMONY L. A. WHITE, a single         )
woman,                                )               No. 32230-1-111
                                      )
                   Appellant,         )
                                      )
       v.                             )
                                      )               UNPUBLISHED OPINION
MOSES LAKE SCHOOL DISTRICT NO. )
161, a Washington State Public School )
District,                             )
                                      )
                   Respondent.        )

      FEARING, J. - Harmony White suffered injuries when she stepped onto a

sidewalk and slipped on broken bits of concrete. The sidewalk abutted a school operated

by the Moses Lake School District, and parents and the district's school buses used the

sidewalk as a loading and unloading zone. Vehicles sometimes bumped the sidewalk's

curb. Harmony White sued the school district for negligently maintaining the walk. The

trial court dismissed the suit on summary judgment because no evidence showed the

school district's use of the abutting sidewalk caused the dangerous condition. We affmn

on the same ground.

                                         FACTS

      We recite the facts in a light most advantageous to Harmony White.
No. 32230-1-III
White v. Moses Lake Sch. Dist. No. 161


       Hannony White fell on a sidewalk along C Street in Moses Lake in May 2008.

Midway Learning Center, operated by the Moses Lake School District, used this abutting

sidewalk as a "bus drive area." Clerk's Papers (CP) at 59. Eight school buses a day used

the bus drive. Parents used the area to deliver and retrieve students. In total, the area saw

about 150 passenger arrivals and departures daily during each of the 180 school days in a

year. Trucks also used the bus drive to deliver materials.

       The Midway Learning Center custodian would snow blow or de-ice the C Street

sidewalk, and school maintenance personnel otherwise attended to the walk. School

Principal Chris Hendricks described much of the sidewalk as being uneven, and he

explained how the school district attempted to level offending sections:

               Q. Okay. Now, according to discovery responses provided by the
       district, it states that they had a-the district had a district wide effort to
       work on potential sidewalk hazards.
               Were you part of that effort?
               A. I was one of the people that nagged really hard that we had
       uneven sidewalks.
               Q. Okay. So when you say uneven sidewalks, if you look at Picture
       No.3, where there's a depression there, is that kind of what you're talking
       about?
               A. Actually­ 

               Q.Or-

               A. -in that that same picture, No.3, you can see an area where the
       concrete surface has-has been shaved down.
               Q. Okay.
               A. That would be a sample of the abrasion technique that they use to
       level the sidewalk.
               Q. Okay.
               A. There was-that was the focus of the remedy to--to level them.
               Q. Okay.


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No. 32230-1-111
White v. Moses Lake Sch. Dist. No. 161


              A. I think that we still have a few places where because of the
       weather and whatever else there may be sunken areas.
              Q. Okay. Is that kind of like-well, you know, like as in 3, for
       example, of a break and just a chunk just sinks in farther, is that what
       you're talking about?
              A. Yeah.




CP at 69-70, 77. If Principal Hendricks noticed gravel on the sidewalk, he prepared a

maintenance work order to remove the stone as soon as snow was no longer likely.

       In 2008, the C Street sidewalk was in general disrepair. One photograph presented

to the trial court showed the C Street curb with a chunk missing and some broken

sidewalk chips strewn about. Another picture depicted bits of broken sidewalk, forming

a gravel-like cover, scattered throughout the sidewalk. One photograph showed a black

stripe along the top of the curb consistent with a tire rubbing the curb.

       Midway Principal Chris Hendricks testified that parents' vehicles may have

bumped the C Street curb. School district transportation manager John Eschenbacher

testified that the district trains its bus drivers to maintain a two inch distance from the

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No. 32230-1-II1
White v. Moses Lake Sch. Dist. No. 161


curb. Nevertheless, according to Eschenbacher, drivers, despite the training, sometimes

bumped a curb in the regular course of picking up kids. If a curb bump scuffed a tire, the

bus driver received additional training. Eschenbacher believed most scuffing incidents

took place at schools other than Midway.

       On May 24,2008, about 7:30 p.m., Harmony White arrived at First Presbyterian

Church on C Street across from Midway Learning Center. She intended to participate in

Moses Lake's Spring Fest Moonlight Parade. When called to queue for the parade,

White decided to first use the restroom. The portable toilets were located across C Street

on the sidewalk that the school uses as a bus drive. White ran toward the portable toilets.

As White stepped onto the sidewalk with her right foot, she fell on her side. She testified

that the sidewalk felt like marbles. She immediately slid with her right foot and could not

catch herself. As she slipped, Harmony White's left foot remained off the curb, so the

slippery area must have been near the curb. She never saw any graveL

       Upon her fall, Harmony White hit her face on the pavement. She also suffered

abrasions on her hand where she tried to catch her fall and a road rash down her left leg.

      Emergency medical personnel placed Harmony White in a cervical collar, placed

her on a backboard, and transported her by ambulance to Samaritan Hospital in Moses

Lake. Thereafter, White underwent multiple reconstructive surgeries to her face.

       When he learned of Harmony White's fall, Principal Chris Hendricks commented

"perhaps now ... they will clean up the sidewalk." CP at 83-84. Nevertheless, the


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No. 32230-1-111
White v. Moses Lake Sch. Dist. No. 161


school district had no notice of any loose gravel or sand in the area where White fell.

                                         PROCEDURE

       Hannony White filed suit against Moses Lake School District claiming that the

district negligently maintained the sidewalk abutting the Midway Learning Center. The

school district moved for summary judgment, arguing, (1) it had no duty to maintain the

sidewalk abutting its property, and (2) no evidence showed the school district caused

White's fall. The district contended that no facts linked the sidewalk "gravel" to any

actions ofthe school.

       In response to the summary judgment motion, Hannony White countered that the

school district operated a bus drive area along the sidewalk and used the walk for its own

purposes. It did so knowing its buses struck the curb and wreaked damage to the

sidewalk. According to White, the school district allowed uneven surfaces to remain on

the walkway even after it took. steps to level the walk. The district allowed concrete

chips and gravel to remain on the surface. White asserted that the heavily trafficked bus

drive combined with a lack of maintenance caused or contributed to the sidewalk's

unsafe condition. The school district replied that White failed to show that the school

district's use of the walk and buses bumping against the curb caused the gravel that

resulted in White's fall to accumulate on the sidewalk.

      The trial court granted the school district's motion for summary judgment. The

trial court noted that mere ownership of property abutting a sidewalk created no duty to


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No. 32230-1-111
White v. Moses Lake Sch. Disl. No. 161


maintain the sidewalk. Nevertheless, evidence showed the school district put the walk to

special use, which created a duty. The duty extended to exercising reasonable care to

ensure that the use did not create conditions rendering the sidewalk unsafe for passing

pedestrians. The trial court concluded that Harmony White failed to present evidence

causally linking the school district's use of the sidewalk to the gravel that caused her

injury.

                                   LA W AND ANALYSIS

          Harmony White asks this court to reverse the trial court's grant of summary

judgment. This court reviews a trial court's order granting summary judgment de novo,

performing the same inquiry as the trial court. Seiber v. Poulsbo Marine Ctr., Inc., 136

Wn. App. 731, 736, 150 P.3d 633 (2007). We construe all facts and reasonable

inferences in the light most favorable to the nonmoving party. Lybbert v. Grant County,

141 Wn.2d 29,34, 1 P.3d 1124 (2000); Seiber, 136 Wn. App. at 736. Summary

judgment is appropriate when there is no genuine issue of material fact and the moving

party is entitled to ajudgment as a matter oflaw. CR 56(c).

          The moving party must first show the absence of an issue of material fact.

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

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

trial. Ingersoll, 123 Wn.2d at 654. If the nonmoving party fails to offer sufficient

evidence of an element essential to her case, then the trial court should grant summary


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I
II
     No. 32230-I-III


I    White v. Moses Lake Sch. Dist. No. 161


     judgment. Hines v. Data Line Sys., Inc., 114 Wn.2d 127, 148, 787 P.2d 8 (1990).
f
 I          To survive summary judgment, the nonmoving party must set forth specific facts

I,   that rebut the moving party's contentions and that posit a genuine issue as to a material

     fact. Seiber v. Poulsbo Marine Ctr. Inc., 136 Wn. App. at 736-37. The nonmoving party

Ii   may not rely on speculation or argumentative assertions, nor may it have its affidavits

     considered at face value. Seiber, 136 Wn. App. at 736. A fact, for purposes of opposing

     a summary judgment motion, is an event, an occurrence, or something that exists in

     reality. Grimwood v. Univ. ofPuget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517

     (1988). It is what took place, an act, an incident, a reality as distinguished from

     supposition or opinion. Grimwood, 110 Wn.2d at 359. "Facts" needed to defeat a

     motion for summary judgment are evidentiary in nature. Grimwood, 110 Wn.2d at 359.

            Harmony White sued Moses Lake School District No. 161 for negligence. In

     order to maintain an action for negligence, a plaintiff must show (a) that the defendant

     owed a duty of care to the plaintiff, (b) the defendant breached that duty, (c) injury to the

     piaintiffresulted, and (d) the defendant's breach was the proximate cause of the injury.

     Seiber, 136 Wn. App. at 738. Duty and causation are at issue in this appeal. Whether a

     defendant owes a duty of care is a question oflaw. Seiber, 136 Wn. App. at 738.

            Harmony White asks this court to affirm a ruling below that the Moses Lake

     School District used the C Street sidewalk for its own special purpose, namely as a bus

     drive. White further argues that, because of the special use, the school district held a


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No. 32230~1-III
White v. Moses Lake Sch. Dist. No. 161


general duty to maintain the sidewalk in a condition safe for passing pedestrians. In

response, the school district argues the lower court made no such ruling and, furthermore,

its use of the sidewalk constituted usual and customary pedestrian usage.

       We agree with the school district to the extent that Harmony White contends that

special use was decided as a matter of law by the trial court. Instead, the trial court ruled

there was a question of fact and that facts presented in opposition to the summary

judgment motion could lead a trier of fact to conclude the school district put the sidewalk

to a special use. We decline to address the school district's contention that it did not

make a special use of the sidewalk. We disagree with Harmony White that any special

use created a duty to maintain the sidewalk at large. We conclude that, regardless of a

special use, the school district's duty only extended to care for conditions created by its

special use and White failed to present evidence that the use caused the condition in the

sidewalk that led to her injuries. Therefore, Moses Lake School District is entitled to

summary judgment on this alternate ground.

       A person in control of property abutting a public sidewalk is not an insurer of

pedestrian safety nor does it generally owe a duty to maintain the walk. Hoffstatter v.

City o/Seattle, 105 Wn. App. 596, 601,20 P.3d 1003 (2001); Stone v. City o/Seattle, 64

Wn.2d 166, 170, 391 P .2d 179 (1964). However, when that person uses a sidewalk for

his own special purposes, he has a duty to maintain the walk in a reasonably safe

condition for its usual and customary pedestrian usage. Seiber v. Poulsbo Marine Ctr.


                                              8

No. 32230-1-III
White v. Moses Lake Sch. Dist. No. 161


Inc., 136 Wn. App. at 738 (2007); Hoffstatter v. City ofSeattle, 105 Wn. App. at 601.

       The Moses Lake School District's use of the C Street sidewalk included the

unloading each school day of eight school buses full of pupils, parents leaving and

retrieving children along the curb, and deliveries from large trucks. Harmony White

contends this routine use imposed upon the district a general duty to maintain the

sidewalk. This is not the rule in Washington.

       Our Supreme Court has consistently ruled that the duty of a landowner making a

special use of a walkway is the duty to use reasonable care that the use does not create

conditions rendering it unsafe for the passing thereon of pedestrians. Stone v. City of

Seattle, 64 Wn.2d at 170; James v. Burchett, 15 Wn.2d 119, 124, 129 P.2d 790 (1942). A

reading of Washington decisions shows that the adjacent landowner has been held liable

only when its use created the dangerous condition. For example in James v. Burchett, the

landowner's car lot used the sidewalk for its private convenience and the use carried

gravel from the lot to the walkway. The landowner knew of the condition because an

employee held the duty to sweep the sidewalk each morning. The successful plaintiff

slipped and fell on the gravel.

       A controlling decision is Seiber v. Poulsbo Marine Ctr. Inc., 136 Wn. App. 731

(2007). Poulsbo Marine Center displayed merchandise on a boardwalk outside its store.

The walkway had two steps along its side farthest from the store. Although the walk was

flush with the store building, the City of Poulsbo owned the walkway. Seiber fell down


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I
I   No. 32230-1-III 


I
!
~
    White v. Moses Lake Sch. Dist. No. 161 



~
;   the steps and injured herself. She submitted an affidavit from an expert who opined that
!   the merchandise display confused Seiber's sense of perception such that she believed she

I   had a larger area in which to walk than was present in actuality. Another expert opined

    that the stairs were dangerous. This court nonetheless affirmed a summary Judgment

    dismissal in favor of Poulsbo Marine Center, since Seiber lacked evidence that any

    dangerous condition created by the special use of the boardwalk caused her to fall.

           Harmony White offers sufficient evidence to prove that the sidewalk was in a state

    of disrepair. But White forwards only argument and speculation that the school district's

    use created.the disrepair. White argues that, from photographs, ajury could reasonably

    infer that pieces of concrete are from damaged and unmaintained curbing and joints in the

    sidewalk, which would allow the concrete to chip away into pebbles on the walking

    surface ofthe sidewalk. Assuming such to be true, however, there is no evidence linking

    the condition to any special use of the sidewalk by the school district. Principal Chris

    Hendricks and Transportation Manager Eschenbacher agree school buses sometimes

    bump into the sidewalk curbing and could account for black marks seen in a photograph

    viewed by them at their depositions. But White lacks evidence that bumping of the curb

    caused any of the loose gravel where she fell.

           The gist of our ruling is that, as a matter of law, no breach of duty by the Moses

    Lake School District caused Harmony White's fall. Proximate cause requires a plaintiff

    to prove both legal causation and cause in fact. Lowman v. Wilbur, 178 Wn.2d 165, 169,


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No. 32230-I-II1
White v. Moses Lake Sch. Dist. No. 161


309 P.3d 387 (20l3). To establish cause in fact, a claimant must establish that the harm

suffered would not have occurred but for an act or omission of the defendant. There must

be a direct, unbroken sequence of events that link the actions of the defendant and the

injury to the plaintiff. Joyce v. Dep't ojCorr., 155 Wn.2d 306,322, 119 P.3d 825 (2005).

Cause in fact is usually a question for the jury. Joyce, 155 Wn.2d at 322. But the court

may decide this question as a matter of law if the causal connection is so speculative and

indirect that reasonable minds could not differ. Moore v. Hagge, 158 Wn. App. 137, 148,

241 P.3d 787 (2010). If there is nothing more tangible to proceed on than two or more

conjectural theories under one or more of which a defendant would be liable and under

one or more of which a plaintiff would not be entitled to recover, a jury will not be

permitted to conjecture how the accident occurred. Gardner v. Seymour, 27 Wn.2d 802,

809, 180 P.2d 564 (1947). The cause of an accident is considered speculative when, from

a consideration of all the facts, it is as likely that it happened from one cause as another.

Moore v. Hagge, 158 Wn. App. at 148.

       As the trial court aptly summarized, Harmony White "seems to argue" that

because the disintegration in the sidewalk either appeared or worsened after school buses

began bumping into the curb, that bumping either caused or contributed to the

disintegration. CP at l39. Nevertheless, only conjecture, rather than evidence, supports

this theory. No expert testified to how much the vehicles using the bus drive weighed,

the velocity at which they might have bumped the curb, or how vast the resulting damage

                                              11 

No. 32230-1-111
White v. Moses Lake Sch. Dist. No. 161


might have been. No witness testified to a vehicle bumping the curb and the sidewalk

immediately or subsequently cracking at the point of contact. We do not even know if a

bus or some other vehicle bumped the curb before the deterioration. The evidence does

not show a direct, unbroken sequence of events that link bumping the curb to the

sidewalk's disintegration.' Thus, a jury would have to speculate as to whether curb

bumping caused sidewalk deterioration.

       The few pictures in the record show the greatest accumulation of broken chips of

sidewalk to be furthest from the curb. Two photographs show severe cracking away from

the curb, suggesting, as the trial court noted, that another cause, such as normal, repeated

use, and exposure to the elements caused the disrepair. The trial court thus properly kept

a jury from conjecturing how the accident occurred.

                                         CONCLUSION

       We affirm the summary judgment order dismissing Harmony White's lawsuit with

prejudice.

       A majority of the panel has determined this opinion will not be printed in the Washington

Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.



                                                      Feanng, J.
WE CONCUR:


  ~(~;r

       Slddoway, C..

                                               12 

