       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                       CJ
                                                                                   r--.1     V) CD
                                                                                   Gn        —1c
                                                                                   ......1     :::..
MITCHELL KANE,                            )                                                                  .1
                                                                                             rn
                                          )   No. 74638-3-1                        1:;AP
                                                                                     0       --n
                     Appellant,           )                                         N.)
                                          )   DIVISION ONE                                         7; 71 •
              v.                          )                                                   =
                                          )                                             •
                                                                                                       cf)
CITY OF SEATTLE, a municipal              )                                                    C)


corporation, JONATHON HILTON,             )                                            kr)



                                          )   UNPUBLISHED OPINION
                     Defendants,          )
                                          )   FILED: March 27, 2017
              and                         )
                                          )
BETHANY COMMUNITY CHURCH,                 )
                                          )
                     Respondent.          )
                                         )

       BECKER, J. —Appellant Mitchell Kane was hit by a drunk driver at an

intersection near Bethany Community Church. Kane sued Bethany for

negligence, alleging that the stop sign at the intersection was obscured by

branches on a tree belonging to the church. The trial court correctly dismissed

the suit on summary judgment for lack of proof that the driver's failure to stop

was caused by the obscuring branches.

       Summary judgment orders are reviewed de novo. Farmer v. Davis, 161

Wn. App. 420, 433, 250 P.3d 138, review denied, 172 Wn.2d 1019 (2011).

Appellate courts engage in the same inquiry as the trial court. Hiqhline Sch. Dist.

No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976). Summary
No. 74638-3-1/2


judgment is proper when, viewing all evidence and available inferences in favor

of the nonmoving party, there are no genuine issues of material fact. CR 56(c);

Highline, 87 Wn.2d at 15. If the plaintiff fails to establish an essential element of

his case, the court should grant summary judgment; a complete failure of proof

concerning an essential element renders all other facts immaterial. Little v.

Countrywood Homes, Inc., 132 Wn. App. 777, 779-80, 133 P.3d 944, review

denied, 158 Wn.2d 1017 (2006).

       Declarations and exhibits submitted to the trial court establish the

underlying facts, which the parties do not dispute. Around 11:30 on a July night

in 2014, Kane was driving his moped in the Green Lake neighborhood of Seattle.

While crossing eastbound through the intersection of Stone Avenue North and

North 80th Street where he had the right of way, Kane was struck by a car

moving southbound. He suffered a broken leg and pelvis and injuries to his head

and chest.

       The southbound driver, Jonathan Hilton, told police that he failed to stop at

a stop sign before proceeding into the intersection. Hilton had a Breathalyzer

reading of .116. He later pled guilty to vehicular assault.

       Bethany Community Church is located at the intersection where the

accident occurred. Bethany owns a crabapple tree on Stone Avenue.

Photographs show that at various points on Hilton's approach to the intersection,

the tree's branches obscured the stop sign that faced him.

       Kane sued Bethany along with Hilton and the city of Seattle. Kane alleged

that Bethany breached a duty to maintain the tree so that the branches did not



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No. 74638-3-1/3

interfere with the ability of drivers using the street to see the stop sign. Kane

claimed that his damages were a direct and proximate result of Bethany's

negligence.

       During discovery, the city directed an interrogatory to Hilton asking him to

describe "any facts or circumstances you believe contributed to cause the

incident." Hilton responded, in part, "I didn't see the stop sign until I got to it; 1

remember trees being there but currently have no recollection of whether they

obscured my vision."

       Hilton's testimony at a deposition taken on July 28, 2015, was consistent

with this response. He said, "So as you are coming up to the stop sign, I didn't

see it as I got up to it." He explained that his passenger "pointed out that there is

a stop sign. So that's when I looked over and saw it and went to go slam on my

brakes and then that's when the accident happened." Hilton testified that his

front tires were already past the stop sign when he looked up and saw it.

       During another deposition on August 18, 2015, counsel for Kane asked

Hilton to review a photograph of the accident scene. Hilton acknowledged that

based on the photograph, it appeared that a tree branch would have blocked his

view of the stop sign at a certain point. But later on in the deposition, he testified

that the stop sign is visible "once you get closer to it." Counsel for Bethany

asked Hilton, "is it fair to say as we sit here today, you don't know why you

missed the stop sign on July 9, 2014?" He responded, "Yeah. I would say it's

safe to say that I don't know why." When asked "you cannot testify with any

degree of certainty. . . that there were branches or trees or foliage of any sort



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No. 74638-3-1/4


obstructing the stop sign leading you to not stop, is that a correct statement?," he

answered "Well, yeah, I would say it's a correct statement."

       Bethany moved for summary judgment in September 2015, arguing in part

that Kane lacked proof of causation. Bethany maintained that the sole proximate

cause of the accident was Hilton's failure to abide by the rules of the road. Kane

responded that the obscuring branches "eliminated the opportunity for Hilton to

see and react to the sign in time to stop." The trial court granted the motion

based on Hilton's testimony that "he didn't know if the trees obstructed his vision

and he had no clear memory that they did, in fact, obstruct his vision." Kane

appeals.

       One element of a negligence claim is causation. Marshall v. Bally's

Pacwest, Inc., 94 Wn. App. 372, 378, 972 P.2d 475 (1999); Little, 132 Wn. App.

at 780. The plaintiff must establish that he would not have suffered harm but for

the defendant's negligent conduct. Little, 132 Wn. App. at 780.

       Whether the plaintiff has shown cause in fact is usually a question for the

jury. Little, 132 Wn. App. at 780. "But factual causation may become a question

of law for the court if the facts, and inferences from them, are plain and not

subject to reasonable doubt or a difference of opinion." Little, 132 Wn. App. at

780, citing Daugert v. Pappas, 104 Wn.2d 254, 257, 704 P.2d 600 (1985).

       As evidence that the obscuring branches caused the accident, Kane

submits the following: Hilton said that he did not see the sign in time to stop;

Hilton's passenger stated that the tree blocked the sign; an expert witness

presented by Kane said that the sign was not visible from the distance at which



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No. 74638-3-1/5


Hilton would have needed to brake to avoid the collision; another expert's

measurements showed that an emergency stop was necessary to stop within

sight distance. There was evidence that Hilton, notwithstanding his intoxication,

had just successfully driven over 15 miles through a mix of residential and

commercial streets and on the freeway and had stopped at all stop signs,

including one just 2 blocks before the accident intersection.

       This evidence is not proof that the reason Hilton failed to stop at the stop

sign on 80th was that he could not see it. Hilton repeatedly testified that he does

not know why he did not stop.

       Kane contends that in the deposition on August 18, 2015, when Hilton was

shown photos of the intersection taken the day after the accident, he "identified

the tree branches as the reason he did not see the sign in time to stop." Actually,

Hilton said that in the photo, the tree was obscuring the view of the stop sign "to

where I wouldn't be able to see it."

       [HILTON] Seen from right here, it definitely, you know, looks like it
             is obstructing the view. So yes.
       [PLAINTIFF'S COUNSEL] Could you clarify what you mean by,
             "it's obstructing the view?"
       [HILTON] Yeah. It is obstructing the view of the stop sign to
             where I wouldn't be able to see it.

       [PLAINTIFF'S COUNSEL] When you say it's obscuring my view of
             the stop sign, what are you referring to?
                ..
       [HILTON] I am referring to the tree.

       Hilton's subjunctive observation ("I wouldn't be able to see it") does not

establish causation. It is not evidence that the tree prevented him from seeing

the sign in time to stop. To say that the tree would have obscured the stop sign



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No. 74638-3-1/6

at the vantage point shown in a photograph is not inconsistent with, and does not

overcome, Hilton's unequivocal testimony that he does not know why he failed to

stop. Maybe he would have noticed the stop sign earlier if the branches had

been properly trimmed, and maybe he would have stopped before he got to the

intersection. But speculation does not create an issue of material fact. Seven

Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 12, 721 P.2d 1(1986). The

nonmoving party may not rely on speculation or argumentative assertions that

unresolved factual issues remain. Little, 132 Wn. App. at 780; Marshall, 94 Wn.

App. at 377.

      A comparable case is Kristianson v. City of Seattle, 25 Wn. App. 324, 606

P.2d 283 (1980). The plaintiff sustained injuries in a car crash. Kristjanson, 25

Wn. App. at 324. The other driver, who was impaired, was rendered

unconscious by the collision and had no recollection of it. The plaintiff sued the

city for failing to provide adequate sight distance and adequate signage on the

road where the accident occurred. Kristjanson, 25 Wn. App. at 324. A curve

warning sign facing the impaired driver was partially obscured by foliage and an

advisory speed sign was totally obscured by foliage. Kristianson, 25 Wn. App. at

326. This court affirmed the order dismissing the suit on summary judgment for

lack of proof of causation. "At most, Kristjanson's contentions are that, given

additional sight distance, he might have reacted in a way which could have

avoided the collision" and the other driver "might have heeded warning signs to

drive carefully." Kristianson, 25 Wn. App. at 326. Such contentions can only be

characterized as "speculation and conjecture." Kristianson, 25 Wn. App. at 326.



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No. 74638-3-1/7

Recovery cannot be based on a claim of what might have happened.

Krislanson, 25 Wn. App. at 326.

       Kane does not show how his case is materially different from Kristanson.

Another analogous case is Little, 132 Wn. App. 777. The plaintiff was injured on

a job site. Little, 132 Wn. App. at 778. The circumstances suggested that he

had fallen off a ladder, but he had no memory of what happened and no one

witnessed the accident. Little, 132 Wn. App. at 778. He sued Countrywood, the

company he had been working for. Little, 132 Wn. App. at 779. Summary

judgment in favor of the company was affirmed for lack of proof that the accident

was more probably than not caused by Countrywood's violations of safety

standards. Although it was possible to "speculate that the ladder was not

properly secured at the top or that the ground was unstable," no one, including

Little, knew how he was injured. Little 132 Wn. App. at 782.

       Under Little and Kristjanson, the evidence that Kane relies on is

inadequate to establish causation. Assuming that Bethany was negligent for

failing to trim the tree, all we know is that an intoxicated driver failed to stop at an

intersection where the tree branches made it difficult to see the stop sign. We do

not know that the diminished visibility of the stop sign was a contributing cause of

Hilton's failure to stop. Kane's negligence claim fails in the absence of proof that

the alleged breach caused his damages.

       When Bethany moved for summary judgment, Kane moved to amend his

complaint to add a nuisance claim against Bethany. The court denied the

motion, and Kane assigns error to this decision as well.



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No. 74638-3-1/8


       In deciding whether to permit an amendment, a court may consider the

probable merit or futility of the requested amendments. Doyle v. Planned

Parenthood of Seattle-King County, 31 Wn. App. 126, 131, 639 P.2d 240 (1982).

      If an alleged nuisance results from allegedly negligent conduct, rules of

negligence apply. Hostetler v. Ward, 41 Wn. App. 343, 360, 704 P.2d 1193

(1985), review denied, 106 Wn.2d 1004 (1986). A court need not consider

separately a "negligence claim presented in the garb of nuisance." Hostetler, 41

Wn. App. at 360; see also Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs.

v. Blume Dev. Co., 115 Wn.2d 506, 527, 799 P.2d 250 (1990).

       Kane asserts that Bethany's failure to trim its trees created a public

nuisance. This is the same conduct offered to support the claim that Bethany

was negligent. The court did not abuse its discretion in denying Kane's request

to add the nuisance claim because it was futile.

      Affirmed.




WE CONCUR:




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