                                                                                          o
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                coo



                                                                                  3=»   ™—'
HANNELORE W. MALLETT,                                                             -o
                                                                                  TO
                                                DIVISION ONE                       ro   :>•-
                    Appellant,                                                          3> ~V p'
                                                                                        corn
                                                No. 70267-0-                                   C


                                                                                        B^
                                                UNPUBLISHED OPINION                      O-;
                                                                                   03
ADELPHI, LLC, a Washington limited                                                 o

liability company, and/or SMITH
FAMILY REAL ESTATE, LLC, a
Washington limited liability company,
both d/b/a Adelphi Apartments,

                    Respondents.                FILED: April 21, 2014


      Dwyer, J. — In order to defeat a motion for summary judgment, the

nonmoving party must demonstrate that there is a genuine issue of material fact.

Conjecture and speculation alone is not sufficient to meet this standard.

       Here, the defendants Adelphi, LLC, and Smith Family Real Estate, LLC

(collectively Adelphi) submitted multiple pieces of evidence demonstrating that a

hole in the sidewalk was not caused by a hydraulic lift used on a project at an

apartment building. The plaintiff, Hannelore Mallett, responded only with her

continued assertion that the hole had not been there before the project and that a

different lift, owned by Adelphi's personal representative, might have also been

used on the project. Mallett's assertions, unsupported by other evidence, are not
No. 70267-0-1/2



sufficient to raise a genuine issue of material fact. Because the trial court

correctly granted summary judgment in favor of Adelphi, we affirm.

                                           I


       On December 25, 2010, while walking her dog, Mallett tripped over a hole

in the sidewalk in front of her apartment building, located on 23rd Avenue East in

Seattle. Mallett sustained an injury to her right shoulder. Subsequently, Mallett

filed suit against her landlord, Adelphi, for negligence.

       The central dispute at the trial court was who or what had caused the hole

in the sidewalk on 23rd Avenue East. It was undisputed that in the late summer

of 2010, Adelphi contracted with Dominion Pest Control (Dominion) to eradicate

bats that were nesting in a gap near the roof. According to the bid for the project,

Dominion proposed using a hydraulic lift to reach the roof on three sides of the

apartment building, but not the front side. Dominion did, in fact, use a hydraulic

lift at the apartment building for at least a portion of the project. It was

undisputed that the lift caused significant damage to the sidewalk on East

Thomas Street, which runs along one side of the apartment building.

       At issue, however, was whether Dominion had also caused the hole in the

sidewalk on 23rd Avenue East. Mallett contended that it had. In support of her

claim, Mallett submitted photographs of the hole and a personal declaration. In

her declaration, Mallett stated,

       The hole was not there before the bat work. Surrounding the entire
       top of our building including the front of the building, just before the
       rooftop, is a wooden board that faces out. The lifter broke up the
       sidewalk around the apartment building, including the front of the
       building which is 23rd Avenue East. I saw the lifter in front of the
No. 70267-0-1/3



      building. The holes in front of the building were made by the lifter.
      The hole that I tripped over was not there before the lifter doing the
      bat work.

During her deposition, when asked how she knew what had caused the hole,

Mallett answered, "Because the hole was never there before" and "Because the

lifter broke up everything else and the hole was not there before the lifter passed

over." However, Mallett also testified that she had never noticed the hole in the

sidewalk before she tripped over it.

      Adelphi, on the other hand, contended that the hole in the sidewalk was

the result of normal wear and tear. In support of its theory, Adelphi submitted

multiple pieces ofevidence that Dominion's hydraulic lifter had not caused the
hole in the sidewalk on 23rd Avenue East. Adelphi submitted the declaration of a

structural engineering expert, David VanDerostyne, who concluded that "the void
in the concrete is the result of weathering and differential movement between the

two different sidewalk components." In VanDerostyne's professional opinion,

"the void identified by plaintiff and her counsel formed at least two to three years,
and probably more, before the photographs of the void were taken." Adelphi also
submitted photographs ofthe damage to the sidewalk on East Thomas Street,
which had been caused by the lift, to contrast with the hole in the sidewalk on

23rd Avenue.

       Further evidence submitted by Adelphi refuted Mallett's description of the

bat eradication project. As Mallett described the hydraulic lift, "[i]t was one of
those really heavy ones with ... a metal track." However, a copy of the invoice
from the lift rental company listed the model of the lift used for the project as one

                                         -3-
No. 70267-0-1/4



that has wheels instead of a metal track. Evidence submitted by Adelphi also

demonstrated that the lift was eight feet wide and could not possibly have

rounded the corner from East Thomas Street because there is a utility pole on

that corner less than eight feet from the building.

       Mallett's only response to this evidence was to submit a second

declaration. Therein, Mallett stated,

       [T]he hole in the sidewalk that I tripped over while my dog and I
       were distracted by the cat was made by a heavy lifter machine with
       metal tracks (not big tires like the one in the picture in the most
       recent court papers filed by my landlord) that was used in the front
       of my apartment building in the summer of 2010 before I fell on
       Christmas Day 2010. The holes in front of the building were made
       by the lifter. I am aware that my landlord, Nancy Smith,M owns a
       lift machine company, so perhaps it was one of hers.

       Adelphi moved for summary judgment on the basis that it had no duty to

repair the sidewalk because it had not created the hole. The trial court granted

Adelphi's motion and dismissed Mallett's claim. Mallett appeals.

                                            II


       We review de novo the trial court's grant of summary judgment. Green v.

Normandy Park Riviera Section Cmtv. Club, Inc., 137 Wn. App. 665, 681, 151

P.3d 1038 (2007). "Summary judgment is properly granted when the pleadings,

affidavits, depositions, and admissions on file demonstrate that there is no

genuine issue of material fact and that the moving party is entitled to summary

judgment as a matter of law." Green, 137 Wn. App. at 681.



       1Nancy Smith is the managing member of both Adelphi, LLC, and Smith Family Real
Estate, LLC.
No. 70267-0-1/5



              The moving party bears the initial burden of establishing its
      right to judgment as a matter of law. Young v. Key Pharms., Inc.,
      112 Wn.2d 216, 225, 770 P.2d 182 (1989). Once the moving party
      satisfies its initial burden, the burden then shifts to the nonmoving
      party to show that a triable issue exists. Dohertv v. Mun. of Metro.
      Seattle, 83 Wn. App. 464, 468, 921 P.2d 1098 (1996). All
      reasonable inferences from the evidence must be construed in
      favor of the nonmoving party. Lamon v. McDonnell Douglas Corp.,
      91 Wn.2d 345, 349, 588 P.2d 1346 (1979). If the nonmoving party
      "'fails to make a showing sufficient to establish the existence of an
      element essential to that party's case, and on which that party will
      bear the burden of proof at trial,'" then summary judgment is
      properly granted in favor of the moving party. Young, 112 Wn.2d at
      225 (quoting Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S. Ct.
      2548,91 L.Ed. 2d 265 (1986)).

Geerv.Tonnon, 137 Wn. App. 838, 843, 155 P.3d 163 (2007).

       "A nonmoving party attempting to preclude a summary judgment may not

rely on speculation, argumentative assertions that unresolved factual matters

remain, or in having its affidavits considered at their face value." Peterick v.

State, 22 Wn. App. 163, 181, 589 P.2d 250 (1977) overruled on other grounds by
Stenberg v. Pac. Power & Light Co., 104 Wn.2d 710, 709 P.2d 793 (1985). This

is so because "evidence supporting a party's case theory 'must rise above

speculation and conjecture.'" Feroen v. Sestero, 174 Wn. App. 393, 397, 298
P.3d 782 (2013) (quoting Bd. of Regents of Univ. ofWash, v. Frederick &Nelson,
90 Wn.2d 82, 86, 579 P.2d 346 (1978)), review granted, 178 Wn.2d 1001, 308

P.3d 641 (2013). When the only evidence supporting a theory constitutes mere

speculation and conjecture, the issue is not properly submitted to the jury. Wood
v. Myers, 48 Wn.2d 746, 753, 296 P.2d 525 (1956). Thus, in order to defeat a

motion for summary judgment, "the nonmoving party must set forth specific facts



                                          5-
No. 70267-0-1/6



that sufficiently rebut the moving party's contentions and disclose that a genuine

issue as to a material fact exists." Peterick, 22 Wn. App. at 181.

       In order to prove a negligence claim against Adelphi, Mallett needed to

establish the following four elements: (1) that Adelphi had a duty to repair the

hole in the sidewalk, (2) that Adelphi breached that duty, (3) that she suffered an

injury, and (4) that the injury she suffered was proximately caused by Adelphi's
breach. Tincani v. Inland Empire Zoological Soc'v. 124Wn.2d 121, 127-28, 875

P.2d 621 (1994). Whether a duty exists is a question of law. Parrilla v. King

County. 138 Wn. App. 427, 432, 157 P.3d 879 (2007).

       Generally, maintenance of public sidewalks is the responsibility of the city.

Rosengren v. City of Seattle. 149 Wn. App. 565, 575, 205 P.3d 909 (2009). "[A]n

abutting property owner is not legally responsible for the physical condition of a
public sidewalk unless that property owner causes or contributes to the
condition." Rivett v. City of Tacoma. 123 Wn.2d 573, 579, 870 P.2d 299 (1994).

Thus, in order to establish that Adelphi owed a duty to repair the hole in the
sidewalk, Mallett must first demonstrate that Adelphi created the hole.

       In support of its contention that the hydraulic lift had not caused the hole in
the sidewalk, Adelphi submitted photographs contrasting the hole with actual
damage caused by the lift, the declaration ofan expert who concluded thatthe
hole had resulted from weathering, an invoice demonstrating that the lift used

was not as Mallett had described it, and documents demonstrating that the lift

could not have been driven around the corner to the spot where Mallett had

tripped. The only evidence Mallett submitted in response was her personal
                                         -6-
No. 70267-0-1/7



affidavits stating that she had not seen the hole before the bat eradication and

that perhaps a lift owned by Nancy Smith had caused the damage.

       Neither of Mallett's assertions rise above speculation and conjecture.

First, Mallett's assertion that "I am aware that my landlord, Nancy Smith, owns a

lift machine company, so perhaps it was one of hers," is simply a guess, not a

fact. Second, Mallett's conclusory statement that the hydraulic lift caused the

hole is the product not of evidence but of faulty logic. Mallett asserts that

because there was no hole before the summer of 2010, and there was one on

December 25, 2010, the lift must have caused the hole. Mallett confuses

correlation and causation. There can be no inference that one event caused

another merely because the two events occurred in sequence. See Craig ex rel.

Craig v. Oakwood Hosp., 471 Mich. 67, 93, 684 N.W.2d 296 (2004) ("It is

axiomatic in logic and in science that correlation is not causation. This adage

counsels that it is error to infer that A causes B from the mere fact that A and B

occur together."). This logical fallacy amounts to nothing more than speculation.

       Mallett has not presented any evidence that rises above mere conjecture

and speculation. Her declarations were thus insufficient to rebut Adelphi's

evidence and to establish that a question of material fact exists as to whether

Adelphi caused the hole in the sidewalk. As such, Mallett failed to establish that

Adelphi had a duty to repair the sidewalk. Accordingly, the trial court did not err

by granting summary judgment and dismissing her claim.
No. 70267-0-1/8



      Affirmed.



                      ^^"M//
We concur:




                      ^~</




                  8
