                                                                    FILED
                                                               Jan. 12,2016
                                                       In the Office of the Clerk of Court
                                                     W A State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

MADEL YNN M. TAPKEN, a single                )         No. 32909-7-III
person,                                      )
                                             )
                    Appellant,               )
                                             )
             v.                              )
                                             )
SPOKANE COUNTY, Public                       )         UNPUBLISHED OPINION
WorksiDepartment of Engineering &            )
Roads, a Municipal Corporation,              )
                                             )
                    Respondent,              )
                                             )
CONRAD MALINAK, a single person, et          )
aI.,                                         )
                                             )
                    Appellant.               )

       LA WRENCE-BERREY, J.       Madelynn Tapken was a passenger on a motorcycle

driven by Conrad Malinak. She suffered serious injuries and paralysis as a result of

Malinak not perceiving the sharpness of a right turn and crashing his motorcycle.

       Tapken brought this personal injury action against Malinak and Spokane County.

Tapken premised the County's liability on its failure to design and maintain a safe
No. 32909-7-III
Tapken v. Spokane County


roadway. Malinak asserted a similar cross-claim against the County.} At the conclusion

of plaintiffs' evidence to the jury, the County moved for judgment as a matter of law on

the issues of liability and proximate cause. The trial court granted the County's motion.

The trial court determined as a matter of law that the County was not negligent; but even

if it was, that its negligence was not the proximate cause of plaintiffs' injuries.

       Tapken and Malinak appeal. They assert various errors. We agree with only one

of their assertions. We hold that the trial court erred by granting the County's motion for

judgment as a matter of law. We therefore reverse and remand for a new trial.

                                             FACTS

       In the summer of2011, Malinak and Tapken met while working at Red Robin in

downtown Spokane. At the time, Malinak had owned his motorcycle for a few months

and had previously owned a similar bike. When Tapken learned Malinak had a

motorcycle, she told him that she enjoyed taking rides and had frequently ridden with her

father and ex-boyfriends. Tapken knew how to ride as a passenger, including that she

should match and not resist the operator's leaning of the motorcycle on turns. The two

arranged to take a ride together, and the first time out was uneventfuL

       On their second ride, they left Spokane to drive on the Palouse. The weather was



       1   The parties at trial and in their briefs refer to Tapken and Malinak as plaintiffs.

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No. 32909-7-111
Tapken v. Spokane County


sunny and approximately 60 degrees. The two rode to Fairfield and then took Prairie

View Road out of town toward Waverly, driving at approximately the speed limit of 45

m.p.h.

         Just before Waverly, the road forks into a "Y" intersection, known as the "Waverly

Y." It is a triple intersection, in that each of the three intersecting roads splits into two

legs as they converge, forming a triangle of unused roadway at the convergence of the

intersection. The convergence of these three roads creates aneed to regulate the traffic.

Spokane County elected to regulate the converging traffic with various signs.

Specifically, for a driver coming from the north and driving toward Waverly, there is a

yield ahead warning sign 800 feet from the intersection, and two yield signs in the

intersection--one for a driver veering right and another for a driver veering left. As a

driver passes the yield ahead warning sign (800 feet from the intersection), a driver sees a

large hawthorn bush located on the right side of the road several hundred feet toward the

intersection. Because of its close proximity to the road and the contour of the road

bending to the left near it, the large hawthorn bush obscures both the yield sign for traffic

veering right and a portion of the road to the right. This makes it difficult for a driver

approaching from the north to gauge the sharpness of both the right and the left tum


For easeofreference, we will also.

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No. 32909-7·II1
Tapken v. Spokane County


choices until the driver is much closer to the large bush and intersection. There is no sign

warning a driver to reduce speed below the posted speed of 45 m.p.h.

       As he approached the intersection from the north, Malinak slowed to 35·40 m.p.h.,

anticipating he would veer to the right. 2 Malinak began to lean right. But almost

immediately, he realized that the right tum was sharper than he had earlier perceived.

Believing that he was going too fast to veer right, he braked and leaned left, trying to

make the more gradual left tum. Tapken did not follow the lean, resulting in the

motorcycle running straight through the intersection, traveling in the air for over 50 feet

and into a quarry. Tapken was severely injured and permanently paralyzed. She initiated

the present action.

       At trial, the plaintiffs presented testimony from three County employees about the

design and maintenance of the road, followed by testimony from three experts and then

testimony from Malinak. Of the experts, Andrew Harbinson testified first as a collision

analyst. Although he was unable to reconstruct the accident because there was

insufficient physical evidence at the scene, he did state that there was no evidence of

excess speed. He testified that the motorcycle travelled approximately 56 feet in the air



       2 Because of her head injury, Tapken does not remember the events of the day and
did not testifY at trial. Since there were no other witnesses, Malinak was the only source
of information about the events that transpired.

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No. 32909-7-III
Tapken v. Spokane County


before landing off the roadway and therefore was traveling between 35 and 43 m.p.h.

when it departed from the roadway.

       Next, the plaintiffs presented testimony from Dr. Richard Gill, a human-factors

engineering consultant. He testified how a reasonable motorist would respond to the

intersection. In his opinion, the intersection was misleading and needed to be

reconfigured. Primarily he took issue with the triple-"Y" having three points where

traffic crosses, one of which has no form of traffic control. He then testified that because

there were speed warnings around previous curves, a driver would have expected there to

be a speed warning here if the maximum safe speed was less than the speed limit.

Finally, he testified that the yield ahead sign was too far from the intersection, and that

people were likely to forget about it in the 12 seconds between seeing the yield ahead sign

and seeing the yield sign near the intersection.

       After this, the plaintiffs presented a videotaped deposition of Transportation

Engineer Edward M. Stevens. He testified that a yield sign is an inappropriate sign to

control speed and that a driver would not have been able to see the yield sign to the right

in time to actually yield. He also calculated that the reasonable safe speed for a right tum

there was approximately 20 m.p.h.

       At the conclusion of the plaintiffs' evidence, the County orally moved for



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No. 32909-7-III
Tapken v. Spokane County


judgment as a matter of law, both on liability and on proximate cause. The trial court

looked to the duties imposed on drivers under chapter 46.61 RCW: to slow when

approaching a yield sign, to drive at an appropriate reduced speed when approaching and

crossing an intersection, and to see what would be seen by a person exerCising ordinary

care. The trial court then looked at testimony establishing that yield signs are only used at

intersections, and that any reasonable person seeing a yield ahead sign would expect an

intersection and for those duties under chapter 46.61 RCW to apply. Because Malinak

testified that he did not believe a yield sign imposed any obligation to slow down absent

conflicting traffic, the trial court determined as a matter of law that the obscured yield

sign and comer did not contribute to the accident. The court also stated that there was .

insufficient evidence that the County violated its duty to exercise ordinary care in the

design and maintenance of its public roads. At best, the evidence allowed the jury to

speculate as to breach and causation. For these reasons, the trial court granted the

County's motion for judgment as a matter oflaw. Tapken and Malinak appeal.

                                        ANALYSIS

1. 	   Standard ofreview: Evidence must be viewed mostfavorable to the nonmoving
       party

       "When reviewing a trial court's decision on a motion for judgment as a matter of

law, the appellate court applies the same standard as the trial court and reviews the grant

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No. 32909-7-III
Tapken v. Spokane County


or denial of the motion de novo." Alejandre v. Bull, 159 Wn.2d 674, 681, 153 PJd 864

(2007). Such a motion must be granted'" when, viewing the evidence most favorable to

the nonmoving party, the court can say, as a matter of law, there is no substantial

evidence or reasonable inference to sustain a verdict for the nonmoving party.'" Jd.

(quoting Davis v. Microsoft Corp., 149 Wn.2d 521,531, 70 PJd 126 (2003».

2. 	   Whether the trial court erred when it granted the County's motion for judgment as
       a matter oflaw

       To prevail on a claim of negligence against the County, the plaintiffs were required

to show a duty owed, breach of that duty, a resulting injury, and that breach proximately

caused that 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». Only breach of

duty and proximate cause are issues on appeal.

       a. 	   Breach ofduty

       A county owes a duty generally to design and maintain roads in a reasonably safe

condition for ordinary travel. Keller v. City ofSpokane, 146 Wn.2d 237, 246,44 PJd 845

(2002). Whether roadway conditions are reasonably safe for ordinary travel, or instead

are inherently dangerous or misleading, is usually a question of fact. Owen v. Burlington

N. Santa Fe R.R., 153 Wn.2d 780, 788, 108 PJd 1220 (2005). In Owen, a train hit a car

blocked by traffic on a railroad crossing, killing its two passengers. Jd. at 784-85. Jean

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No. 32909-7-II1
Tapken v. Spokane County


Owen, individually and as personal representative of the estates of the deceased persons,

brought suit against the railroad and the City of Tukwila. Id. at 783. Owen settled with

the railroad. Id. Subsequently, the city moved for summary judgment, and argued that it

complied with all statutes, ordinances, and the manual on uniform traffic control devices.

Id. at 785. The trial court granted the city's motion. Id. In reversing, the Owen court

noted'" issues of negligence and proximate cause are generally not susceptible to

summary judgment.'" Id. at 788 (quoting RujJv. King County, 125 Wn.2d 697, 703, 887

P.2d 886 (1995)). Moreover, violation of a statute, regulation, or other positive

enactment need not be shown to establish liability, although compliance may help in

defining the scope ofa duty for providing reasonably safe roads. Id. at 787. "A city's

duty to eliminate an inherently dangerous or misleading condition is part of the

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

upon." Id. at 788. "[T]he existence of an unusual hazard may require a city to exercise

greater care than would be sufficient in other settings." Id.

       The Owen court then reviewed the various conditions present that contributed to

the collision. These conditions included high traffic volume, a crown in the roadway, and

traffic signals located just beyond the tracks, which combined to cause frequent queuing

of vehicles on the tracks. Id. at 784, 789. The Owen court then reviewed the testimony


                                              8

I
    No. 32909-7-III
    Tapken v. Spokane County


    from Owen's expert, who opined that the conditions were unsafe and described how the

    conditions could be mitigated. Id at 789-90. The Owen court reversed the trial court's

    order of dismissal, concluding that "reasonable minds may differ as to whether the

    roadway was reasonably safe for ordinary travel, inherently dangerous, or misleading, and

    whether appropriate corrective action has been taken." Id. at 790.

           Here, the presence of the large hawthorn bush that obscured the roadway to the

    right and one of the two yield signs created a situation that arguably required the County

    to do more than simply comply with positive regulations. Plaintiffs presented evidence

    that a driver approaching from the north would be unable to appreciate the sharpness of

    the road, which veered right, until too late. 3 Plaintiffs also presented evidence that the

    yield ahead sign, 800 feet from the intersection, would not satisfactorily warn of the

    degree to which a person might be required to reduce his or her speed to safely veer right.

    Plaintiffs also presented evidence of how the intersection could be easily made safer. We

    conclude that plaintiffs presented substantial evidence that the County breached its duty

    to design and maintain a safe intersection.



           3 The  County argues that the hazards were open and apparent, and that Malinak
    knew of the hazards. Viewing the evidence most favorably to the plaintiffs, however,
    creates issues of fact of how familiar Malinak was with the intersection, how clearly and
    quickly a reasonable driver should perceive the sharp right curve, and whether Malinak's
    failure to slow beyond his already reduced speed was reasonable in light of what a

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No. 32909-7-II1
Tapken v. Spokane County


       b.     Proximate cause

       Proximate cause has two elements: cause in fact and legal causation. Schooley v.

Pinch's Deli Market, Inc., 134 Wn.2d 468, 474, 951 P .2d 749 (1998). Legal causation

involves a legal determination of whether liability should exist. Petersen v. State, 100

Wn.2d 421,435,671 P.2d 230 (1983). Only the first element, factual causation, is at

issue here.

       Substantial evidence of factual causation exists if the jury could find that, but for

the defendant's actions, the plaintiff would not have been injured. Schooley, 134 Wn.2d

at 478. "Establishing cause in fact involves a determination of what actually occurred

and is generally left to the jury." Id. Causation need not be proved to a certainty.

Gardner v. Seymour, 27 Wn.2d 802,808,180 P.2d 564 (1947) (quoting Home Ins. Co. of

New York v. N Pac. Ry., 18 Wn.2d 798,802, 140 P.2d 507 (1943)). It is sufficient that

plaintiff s evidence allows a jury to find that the harm more probably than not happened

in such a way that defendant's negligence played a role. Id. (quoting Home Ins., 18

Wn.2d at 802). An accident can have more than one proximate cause. Goucher v. J.R.

Simplot Co., 104 Wn.2d 662,676, 709 P.2d 774 (1985).

       The trial court determined that plaintiffs failed to establish proximate cause


reasonable person should perceive.

                                             10
No. 32909-7-III
Tapken v. Spokane County


because Malinak testified that he only slows for a yield sign if there is converging traffic,

and because there was no converging traffic, the yield sign hidden by the hawthorn bush

could not have proximately caused Malinak's failure to slow down. The plaintiffs note

that the hawthorn bush obscured both the yield sign to the right and the sharpness ofthe

right hand turn. They persuasively argue evidence establishes that Malinak would have

slowed more had he been able to perceive the sharpness of the right tum earlier. We hold

that plaintiffs presented substantial evidence of proximate cause. 4

3. 	   Whether the trial court abused its discretion in excluding evidence ofprior
       accidents at the "Waverly Y"

       During discovery, the plaintiffs developed evidence of over two dozen prior

accidents near the "Waverly Y" in less than 20 years-all involving single vehicles

leaving the roadway. Plaintiffs contended that the number of prior road-departure



       4 The dissent concedes that "the cause of the accident was the failure to slow
sufficiently to make the tum." Dissent at 1. It then concludes that the obstruction that
prevented Malinak from seeing the sharpness of the curve was not a proximate cause of
his failure to slow sufficiently.
        One does not need to take judicial notice of the fact that drivers routinely slow to
safely navigate a sharp curve when the sharpness of the curve is apparent. A jury is
entitled to decide whether Malinak, had the intersection been unobstructed so he could
have earlier seen the sharpness of the curve, would have sufficiently slowed or whether
he would have launched himself and his passenger off the road. Because our standard of
review requires us to assume the facts and inferences in the light most favorable to
Malinak, we must presume that he would have done what almost every other driver does
when perceiving a sharp curve: slow down sufficiently rather than wreck.

                                             11 

No. 32909-7-III
Tapken v. Spokane County


accidents at that location, regardless of the causes or the similarity of those accidents to

theirs, was admissible to establish the County should have conducted a road study.

Tapken made an offer of proof that the County's own road standards manual required the

County to study any location with a history of road departures and mitigate the problem.

However, the plaintiffs fail to provide authority or argument that the County's failure to

perform a study violates a duty owed to them. We therefore decline to review this issue.

Milligan v. Thompson, 110 Wn. App. 628, 635, 42 P.3d 418 (2002); RAP 10.3(a)(6).

       In addition, the plaintiffs sought admission of historical accidents that were

substantially similar to theirs at the "Y" intersection to establish that the County was on

notice not only of the conditions near the intersection, but also that those conditions were

dangerous. The County argued that evidence of even substantially similar accidents was

not admissible because it admitted it had notice of the conditions near the intersection,

specifically that the hawthorn bush obscured one of the yield signs.

       Prior to trial, the trial court ruled that evidence of three substantially similar

accidents would be admissible, but only ifthe County presented evidence that it lacked

notice that the intersection was dangerous. The trial court later modified its ruling and

excluded all evidence of prior accidents. The trial court explained:

       [P]rior collisions don't decide whether or not the roadway was unsafe.
       That's for the experts to decide. Both sides have their experts talking about

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No. 32909-7-II1
Tapken v. Spokane County


       how safe the condition of the roadway is, which is the ultimate question,
       and all these accidents don't help the jury understand that at all.
               When I went through all the accidents that were presented, some of
       them were deer, some of them were snow and ice, some were at night, some
       were off the roadway. There's really no uniformity as to how these
       accidents occur.
               So at this point once and for all I'm going to decide this issue. There
       won't be any testimony regarding prior accidents. They're not at all
       relevant to whether or not this was properly designed and maintained, and
       any such testimony would be prejudicial.

Report of Proceedings (RP) at 866-67.

       A trial court's decision to admit or exclude evidence is reviewed for an abuse of

discretion. Salas v. Hi-Tech Erectors, 168 Wn.2d 664,668,230 P.3d 583 (2010). A trial

court abuses its discretion when it renders a decision that is '" manifestly unreasonable or

based upon untenable grounds or reasons.'" Id. at 669 (quoting State v. Stenson, 132

Wn.2d 668, 701, 940 P.2d 1239 (1997)). '" A decision is based on untenable grounds or

for untenable reasons if the trial court applies the wrong legal standard or relies on

unsupported facts.'" Id. (quoting In re Pers. Restraint ofDuncan, 167 Wn.2d 398, 402­

03,219 P.3d 666 (2009)).

       Prior to determining whether evidence was properly excluded as irrelevant, we

examine the nature of the notice that the plaintiffs must establish. A municipality is

deemed to have notice of an unsafe condition created by its employees or agents. Wright

v. City ofKennewick, 62 Wn.2d 163, 167,381 P.2d 620 (1963). But to establish liability

                                             13 

No. 32909-7-III
Tapken v. Spokane County


for a condition not created by the municipality, the plaintiff must prove that the

municipality knew or should have known of the condition before the accident. Russell v.

City ofGrandview, 39 Wn.2d 551, 554-55,236 P.2d 1061 (1951). The dangerous

condition alleged here is the large hawthorn bush and how it obscures the intersection so

that a person veering right could not gauge the severity of the tum until too late to slow to

a safe speed. This is a condition not created by the County. Therefore, unless admitted

by the County, the plaintiffs were required to establish knowledge of the condition.

       Prior to trial, the County admitted that it had notice that the large hawthorn bush

obscured the intersection, although it disputed that this condition was dangerous. At trial,

the County equivocated somewhat. It disputed the degree to which the hawthorn bush

actually obscured the yield sign and the intersection, but it certainly did not claim to have

lacked notice of the condition.

       The trial court correctly concluded that the prior accidents were irrelevant. The

relevant notice is notice of the alleged dangerous condition-which the County

admitted-not whether the condition actually was dangerous. See Tanguma v. Yakima

County, 18 Wn. App. 555,562-63,569 P.2d 1225 (1977). Under these facts, the

County's admission of notice was sufficient. 5 We hold that the trial court did not abuse



       5   If the County's evidence at trial leaves the jury with the false impression that

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No. 32909-7-III
Tapken v. Spokane County


its discretion in excluding evidence of prior accidents.

4.     Whether the trial court abused its discretion in excluding certain expert testimony

       Plaintiffs argue that the trial court erred by excluding Mr. Harbinson's testimony

concerning causation of the accident. Tapken's counsel asked Mr. Harbinson his opinion

of the particular cause of the accident. Mr. Harbinson answered, "I've got three." RP at

781. "The proximate cause of the collision is speed." RP at 781. Defense counsel

objected on the grounds that "[i]t's improper for any witness to talk about the proximate

cause of an accident," arguing that proximate cause is "beyond the expertise of an expert

witness." RP at 781-82. Meanwhile, Tapken's counsel clearly believed that the objection

was to the witness testifYing to causation generally, pointing to opinions Mr. Harbinson

had previously given in his deposition. The trial court ruled using the unreferenced

demonstrative pronoun "that," and concluded that "that" was an ultimate issue of fact

reserved for the jury. RP at 781-82. While the County believes "that" referenced

proximate cause, plaintiffs believe "that" referenced causation in general. This

uncertainty was never resolved because following the ruling, Tapken's counsel moved on

to a separate line of questioning. However, because the exclusion is premised on the

objection, and the objection was to proximate cause-not causation in general-we deem



there has never been any similar accidents at the intersection, the trial court may

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No. 32909-7-II1
Tapken v. Spokane County


it unnecessary to review plaintiffs' assigned error.

5. 	    Whether the trial court erred in denying Tapken's motion/or partial summary
       judgment

       Tapken argues that the trial court erred in denying her motion for partial summary

judgment, which sought to dismiss the County's claim that she was contributorily at fault

for her injuries. Tapken's argument is premised on her assertion that there was

insufficient time for her to react to Malinak's sudden attempt to tum left instead of right,

and if she failed to lean left, or even if she leaned further right, her act was not volitional

and therefore not negligent. Alternatively, Tapken argues that the County has no

evidence what she did, and therefore its claim that she was contributorily at fault must fail

because it is pure speculation.

       Decisions on summary judgment are reviewed de novo. Lakey v. Puget Sound

Energy, Inc., 176 Wn.2d 909,922,296 P.3d 860 (2013). Evidence is reviewed in the

light most favorable to the nonmoving party, and summary judgment is appropriate where

there is not substantial evidence or a reasonable inference to support a finding of liability.

Dowler v. Clover Park Sch. Dis!. No. 400, 172 Wn.2d 471, 484-85, 258 P.3d 676 (2011).

       Preliminarily, the County cites Johnson v. Rothstein, 52 Wn. App. 303, 759 P.2d

471 (1988), and argues that this court may not review a denial of summary judgment after


reevaluate the relevance and admissibility of the substantially similar accidents.
                                              16
No. 32909-7-II1
Tapken v. Spokane County


a trial on the merits. Johnson is inapposite. Here, there has not been a trial on the merits;

rather, the trial court granted the County's motion for judgment as a matter of law.

       In its substantive response to this issue, the County quotes a portion of Detective

David Thornburg's interview with Malinak at the hospital, recorded in his accident report.

       [Malinak] started to lean right to make a right tum and so did [Tapken]. He
       then decided to go left instead, so he leaned back to the left, but [Tapken]
       leaned even farther right. [Malihak] stated this made the bike unstable and
       they ended up going straight off the road.

Clerk's Papers (CP) at 691. The County then takes issue with applying the rule that

allows disfavored drivers a reasonable reaction time to this case. The County argues that

reasonable care in the context of experienced motorcycle riders and passengers "requires

[both] riders to closely mirror the movements of each other so they move in synch."

Resp't's Br. at 47.

       First, neither we nor the County need speculate on why the motorcycle did not veer

left once Malinak leaned left after deciding to veer that direction: Tapken did not match

his movement. Moreover, construing the evidence in the light most favorable to the

County, the nonmoving party at summary judgment, we must accept the truth of

Malinak's statement to the deputy: "[Tapken] leaned even farther right." CP at 691.

Again, assuming these facts in the light most favorable to the County, if Tapken had

sufficient time to lean farther right, she also may have had sufficient time to lean to the

                                             17 

No. 32909-7-III
Tapken v. Spokane County


left. Despite Malinak's sudden and unexpected weight shift to the left, it is a genuine

issue of material fact what a reasonable motorcycle passenger would have done in

Tapken's situation. Just as the reasonableness of the County's conduct must be evaluated

by a jury, so must Tapken's and Malinak's. The trial court did not err in denying

Tapken's motion for partial summary judgment.

                                      CONCLUSION

        Although we affirm the trial court's other challenged rulings, we reverse the trial

court's order granting the County's motion for judgment as a matter oflaw and remand

for trial.

        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.


                                           Lawrence-Berrey, J.

I CONCUR: 





                                             18 

                                         32909-7-111

       KORSMO,   J. (dissenting) -   While the majority nicely analyzes the appellants'

theory of the case, it misses the fact that led the trial court to dismiss this action-the

appellants did not prove that the supposedly dangerous interchange caused the accident.

The trial court concluded, and I agree, that the evidence did not support their case. Since

we should be affirming that ruling, I respectfully dissent.

       Viewing the evidence in the light most favorable! to the appellants, as the trial

court did and as we must do at this juncture, shows that while there was a factual dispute

whether the intersection design was dangerous, the cause of the accident was the failure

to slow sufficiently to make the turn. Mr. Malinak and Ms. Tapken never showed that it

was some feature of the intersection that led to the failure to sufficiently navigate the

turn. If, for instance, the motorcycle had struck another vehicle due to the design, the

appellants would have a case. However, the accident occurred because Mr. Malinak

treated the intersection as ifit were a mere curve in the road subject to the posted

highway speed rather than an intersection. 2


       1 Two  otherwise salient facts that therefore are not relevant are that (l) Mr.
Malinak had driven this road on several prior occasions and (2) that he realized when
entering the tum that Waverly, his destination, was to the left, not the right.
       2Particularly telling is this testimony: "Well, what I understand about this
roadway, and I guess any roadway but particularly this roadway, is that any, anytime that
I was supposed to slow down for a curve, I was told to. But, you know, whenever I was
meant to deviate from the posted speed limit, also I was told which direction I would
have to go." Report of Proceedings (RP) at 1015.
No. 32909-7-III
Tapken v. Spokane County


       In examination by his own attorney, Mr. Malinak agreed that he was driving the

posted speed limit and, when shown other types of road signs from this highway such as

"curve ahead" or cautionary speed posting, agreed that he would slow down in

accordance with the dictates of those signs. RP at 10 15-1016. Here, he did not see the

"yield ahead" sign. RP at 965. He also believed that a yield sign did not indicate an

upcoming intersection and meant slow down only if needed. RP at 1019. Since he did

not see any other traffic, he did not slow down when he saw the yield sign on his left. RP

at 1117-1118. His misunderstanding of his obligations when approaching an intersection

led to this tragic accident.

       As the trial judge correctly analyzed, yield signs govern intersections, not curves.

RCW 46.61.180; .190. All drivers are required to drive at a speed that is "reasonable and

prudent under the conditions." RCW 46.61.400(1). A driver approaching a yield

intersection has an obligation to slow and/or stop:

       The driver of a vehicle approaching a yield sign shall in obedience to such
       sign slow down to a speed reasonable for the existing conditions and if
       required for safety to stop, shall stop.

RCW 46.61.190(3).

       Mr. Malinak did not stop or even slow down for the intersection both because he

missed the sign alerting him to the upcoming intersection and he did not know his driving




                                             2

No. 32909-7-III
Tapken v. Spokane County


obligation with respect to the yield sign.) The county properly signed the intersection by

notifying drivers of a yield ahead. The motorcyclist then had the duty to slow sufficiently

or stop in order to make a turn. Thus, the county had no liability with respect to the

actual cause of the accident-the failure of the motorcycle to slow sufficiently to make a

turn at the intersection.

       The trial court correctly realized there was no basis, other than speculation, for the

county to be held liable. This was not the case of an improperly signed curve in the road.

It was the case of a properly signed intersection that was not timely comprehended by the

driver. That was the only cause of the accident. The trial court thus correctly dismissed

the action after the plaintiffs case.

       I respectfully dissent.




      ) Even under his own theory that he slowed, albeit insufficiently, to make the
unexpectedly sharp right turn, he was in violation of his basic duty to drive slowly
enough for the conditions. RCW 46.61.400(3). He blames this failure on the county in a
dubious attempt to delegate his own driving responsibility.

                                             3
