                                                              This opinion was filed for record
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
                                        )
GUY H. WUTHRICH,                        )
                                        )
                   Petitioner,          )            No. 91555-5
                                        )
             v.                         )
                                        )
KING COUNTY, a governmental             )
entity,                                 )            ENBANC
                                        )
                    Respondent,         )
                                        )
             and                        )
                                        )            Filed:      JAN 2 8 2016
                                                              -----------------
CHRISTA GILLAND (PRICE),                )
                                        )
                    Defendant.          )
        __________________)

      YU, J.-A municipality's duty to maintain its roadways in a reasonably safe

condition for ordinary travel is not confined to the asphalt. If a wall of roadside

vegetation makes the roadway unsafe by blocking a driver's view of oncoming

traffic at an intersection, the municipality has a duty to take reasonable steps to

address it. In this case, there are genuine issues of material fact as to whether this

duty was breached and whether any breach proximately caused petitioner Guy

Wuthrich's injuries. We reverse and remand for further proceedings.
Wuthrich v. King County, No. 91555-5


                             FACTS AND PROCEDURAL HISTORY

      On June 20, 2008, at about 5:15p.m., Wuthrich was riding a motorcycle on

Avondale Road Northeast in King County, approaching an intersection with .

Northeast 159th Street. Drivers on 159th Street are controlled by a stop sign at the

intersection; drivers on A vondale Road are not. Defendant Christa Gilland was

driving a car on 159th Street. When she reached the intersection with Avondale

Road, she stopped to wait for passing traffic but did not see Wuthrich approaching

from the left. She turned left onto Avondale Road and collided with Wuthrich's

motorcycle, seriously injuring him.

       On June 15, 2011, Wuthrich filed a complaint against both Gilland and

respondent King County (County), alleging that the County was liable for his

injuries because overgrown blackberry bushes obstructed Gilland's view of traffic

at the intersection. The trial court dismissed the action against the County on

summary judgment. The Court of Appeals affirmed in a split, unpublished

decision. 1 Wuthrich v. King County, noted at 186 Wn. App. 1023, review granted,

183 Wn.2d 1017, 355 P.3d 1154 (2015).

                                               ISSUE

       Did the Court of Appeals err in affirming the trial court's order dismissing

Wuthrich's action against the County on summary judgment?


       1
           Wuthrich's action against Gilland has been stayed, and Gilland is not a party on appeal.


                                                  2
Wuthrich v. King County, No. 91555-5


                                  STANDARD OF REVIEW

       We review summary judgment decisions de novo. Owen v. Burlington N.

Santa Fe R.R., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). "[A]ll facts and

reasonable inferences must be viewed in the light most favorable to" Wuthrich, the

nonmoving party. ld. "Summary judgment is proper if the record before the trial

court establishes 'that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.'" 2 I d. (quoting CR

56( c)).

                                         ANALYSIS

       "In order to recover on a common law claim of negligence, a plaintiff 'must

show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a

resulting injury, and (4) the breach as the proximate cause of the injury."' Lowman

v. Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013) (quoting Crowe v. Gaston,

134 Wn.2d 509,514,951 P.2d 1118 (1998)). The County contends it has no duty

to address hazardous conditions created by naturally occurring roadside vegetation.

Alternatively, the County contends that even if it does have such a duty, any




           2
         The County moved to strike part II( C) of Wuthrich's brief responding to amicus
Washington State Association of Municipal Attorneys. We passed the County's motion to the
merits and now grant it. The offending portion of Wuthrich's brief relies on factual evidence
outside the record, which we cannot consider when reviewing the trial court's summary
judgment decision. Owen, 153 Wn.2d at 787; see also RAP 9.12.


                                               3
Wuthrich v. King County, No. 91555-5


breach was not a proximate cause of Wuthrich's injuries. Both contentions are

precluded by this court's precedent.

A.    Duty and breach

      The existence and scope of a duty are questions of law. Keller v. City of

Spokane, 146 Wn.2d 237, 243, 44 P.3d 845 (2002). It is well established that a

municipalityhas the duty "to maintain its roadways in a condition safe for ordinary

travel." 3 Owen, 153 Wn.2d at 786-87. There is no categorical exemption for

unsafe conditions caused by roadside vegetation.

       The County argues otherwise, relying on Rathbun v. Stevens County, 46

Wn.2d 352, 281 P.2d 853 (1955), Bradshaw v. City of Seattle, 43 Wn.2d 766, 264

P.2d 265 (1953), and Barton v. King County, 18 Wn.2d 573, 139 P.2d 1019 (1943).

Those cases would support the County's position if their legal foundations

remained solid. However, each of those cases was decided before the legislature

waived sovereign immunity for municipalities and therefore relied on the rule that

the municipalities' duties to address conditions outside the roadway was limited to

warning or protecting against inherently dangerous or misleading conditions.




       3 It is disputed whether the County owned the land on which the blackberry bushes were
located. We therefore do not reach the merits of Wuthrich's argument that the County had an
independent duty as a landowner to "use and keep [its] premises in a condition so adjacent public
ways are not rendered unsafe for ordinary travel." Rev. Tenney, 56 Wn. App. 394, 396-97, 783
P.2d 632 (1989).


                                                4
Wuthrich v. King County, No. 91555-5


Rathbun, 46 Wn.2d at 356--57; Bradshaw, 43 Wn.2d at 773-74; Barton, 18 Wn.2d

at 575-76. That rule no longer applies.

       Our more recent precedent makes it clear that a municipality has "the

overarching duty to provide reasonably safe roads for the people of this state to

drive upon." Owen, 153 Wn.2d at 788. Addressing inherently dangerous or

misleading conditions is simply "part of' that duty. I d. And to the extent that Ruff

v. County ofKing, 125 Wn.2d 697, 887 P.2d 886 (1995), has been misread as

holding that a municipality's duty is limited to complying with applicable law and

eliminating inherently dangerous conditions, we clarify that it is not.

Municipalities are generally held to a reasonableness standard consistent with that

applied to private patties. See Owen, 153 Wn.2d at 787; Keller, 146 Wn.2d at 242-

43 (citing RCW 4.96.010); Xiao Ping Chen v. City of Seattle, 153 Wn. App. 890,

900-01, 904-05, 223 P.3d 1230 (2009). Therefore, to the extent that Rathbun,

Bradshaw, and Barton hold that a municipality has no duty at all to address

dangerous sight obstructions caused by roadside vegetation, we now explicitly hold

they are no longer good law. See W. G. Clark Constr. Co. v. Pac. Nw. Reg 'I

Council ofCarpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014).

       We also note that whether a condition is inherently dangerous does not

depend on whether the condition "exists in the roadway itself." Wuthrich, slip op.

at 7. It depends on whether there is an "'extraordinary condition or unusual



                                           5
Wuthrich v. King County, No. 91555-5


hazard."' Barton, 18 Wn.2d at 577 (quoting Leber v. King County, 69 Wash. 134,

136, 124 P. 397 (1912)). Such a hazard may be presented by "the situation along

the highway." !d. at 576. Inherent dangerousness is a question of fact that may be

relevant to the level of care that is reasonable, but it does not affect the existence of

the overall duty to take reasonable care. Owen, 153 Wn.2d at 788.

       Whether the County breached its duty depends on the answers to factual

questions: Was the road reasonably safe for ordinary travel, and did the

municipality fulfill its duty by making reasonable efforts to correct any hazardous

conditions? !d. Wuthrich introduced sufficient evidence to create genuine issues

of material fact as to both of these questions. Gilland testified that her view of the

intersection was obstructed by the blackberry bushes, and Wuthrich's experts

testified that the County could have taken a variety of corrective actions to address

the issue, including trimming or removing the blackberry bushes, reducing the

speed limit, or adjusting the stop line. Whether the roadway was reasonably safe

and whether it was reasonable for the County to take (or not take) any corrective

actions are questions of fact that must be answered in light of the totality of the

circumstances. !d. at 788-90; Xiao Ping Chen, 153 Wn. App. at 901.

       In sum, we reaffirm that a municipality has a duty to take reasonable steps to

remove or correct for hazardous conditions that make a roadway unsafe for

ordinary travel and now explicitly hold this includes hazardous conditions created



                                            6
Wuthrich v. King County, No. 91555-5


by roadside vegetation. We reject the notion that continuing to recognize this duty

will make municipalities strictly liable for all traffic accidents because, as we have

previously emphasized, "only reasonable care is owed." Lowman, 178 Wn.2d at

170 (citing Keller, 146 Wn.2d at 252); see also Owen, 153 Wn.2d at 789-90.

B.    Proximate cause

      The County also argues that even if it did breach its duty, we should affirm

on the alternate basis that the breach did not proximately cause Wuthrich's injuries.

"Washington 'recognizes two elements to proximate cause: [c]ause in fact and

legal causation."' Lowman, 178 Wn.2d at 169 (alteration in original) (quoting

Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985)). Here, cause in fact is

disputed and the County's arguments relating to legal causation are barred by

controlling precedent.

       "Cause in fact refers to the 'but for' consequences of an act-the physical

connection between an act and an injury." Hartley, 103 Wn.2d at 778. "As a

determination of what actually occurred, cause in fact is generally left to the jury."

I d. In this case, Gilland testified that the blackberry bushes obstructed her view of

the intersection, so she did not see Wuthrich until she had already begun her left-

hand turn and did not have time to stop. Consistently, the police report stated that

the "brush line causes somewhat of a site [sic] obstruction" and there were "no pre-

impact skid marks from either vehicle" in the roadway, indicating that Gilland and



                                           7
Wuthrich v. King County, No. 91555-5


Wuthrich could not see each other until the moment of impact. Clerk's Papers at

445. This is sufficient to raise a genuine issue of material fact as to whether

Wuthrich would in fact have been injured if Gilland's view had not been

obstructed. See Hartley, 103 Wn.2d at 778.

      Legal causation depends on "'policy determinations as to how far the

consequences of a defendant's acts should extend.'" Lowman, 178 Wn.2d at 169

(quoting Crowe, 134 Wn.2d at 518). We make that determination by "evaluat[ing]

'mixed considerations of logic, common sense, justice, policy, and precedent."' I d.

(internal quotation marks omitted) (quoting Hartley, 103 Wn.2d at 779). The

County contends that Gilland's negligence was not a foreseeable circumstance, so

legal causation should not extend to the County. However, we have already

rejected similar arguments. ld. at 170-72. Gilland's alleged negligence could

certainly "limit or negate [the County's] liability on any number of theories,

including comparative fault or the failure to prove factual causation," but that

possibility does not automatically defeat the existence of legal causation. I d. at

172; cf Owen, 153 w·n.2d at 787.

       The County also contends that legal causation is not established because

there were very few prior accidents at the intersection, so it did not have notice that

the blackberry bushes were hazardous. However, to the extent legal causation

includes a notice component, it is simply notice of the condition. Niebarger v. City



                                           8
Wuthrich v. King County, No. 91555-5


of Seattle, 53 Wn.2d 228, 229-30, 332 P.2d 463 (1958). There is evidence in the

record that the blackberry bushes had been there for years and the County knew
                '                          .            '

about them. The lack of prior accidents could be relevant circumstantial evidence

as to the reasonableness of the County's actions when evaluating breach, but it

does not preclude legal causation.

                                       CONCLUSION

       There are genuine issues of material fact as to whether the intersection at

Avondale Road and 159th Street was reasonably safe for ordinary travel, whether

the County took reasonable steps to remove hazardous conditions at the

intersection, and whether any of the County's actions or omissions proximately

caused Wuthrich's injuries. We therefore reverse the Court of Appeals and remand

to the trial court for further proceedings.




                                              9
    Wuthrich v. King County, No. 91555-5




 WE CONCUR:




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