IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 KEVIN HANEFELD and MARIANNA
 HANEFELD, husband and wife and the                No. 77314-3-1                        c)
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 marital community comprised thereof,                                                    rn
                                                   DIVISION ONE                           -n
                     Appellants,                                                 "'""        -or
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                                                   UNPUBLISHED OPINION                     tr)rn
               V.
                                                                                                  Cfl
                                                                                   tR
 KING COUNTY, a municipal corporation
 and/or a political subdivision,

                      Respondent.                  FILED: November 19, 2018


      APPELWICK, C.J. — While riding his bike along the Sammamish River Trail,
Hanefeld flew over the handlebars and tumbled down a hill, injuring himself. He

sued the County, alleging that its negligence in maintaining the trail caused his

injuries. He argues that the trial court erred by granting summary judgment in favor

of the County, because he raised genuine issues of fact on his failure to warn

claim. He asserts that his failure to warn claim should not be subject to the

discretionary immunity doctrine. We affirm.

                                      FACTS

       On July 21, 2013, Kevin Hanefeld and his wife were riding their bikes along

the Sammamish River Trail (trail). After reaching Bothell Landing, they headed

eastbound on the trail to return back to their car. When the two came upon some

bollards, Hanefeld slowed down. The trail turns left and then downhill at the
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bollards. At this time, Hanefeld's wife was riding in front of him, and a woman and

two boys were riding in front of his wife.

       The woman and two boys went through the bollards first. Hanefeld was

about three to four bike lengths behind the four of them. He went through the

bollards last. He passed the family on the left while going down the hill. Then,

Hanefeld recalls suddenly flying over his handlebars and tumbling down the hill,

causing injury. He does not recall what caused him to fly over his handlebars. He

was vaguely aware that his handlebars were not in a straight position.

       Hanefeld's wife was at the bottom of the hill, and heard him cry out for help.

Another bicyclist came to Hanefeld's side to help him. His wife then called 911,

and emergency medical technicians(EMTs)came to his aid. Notes by one of the

EMTs state that Hanefeld said he "over-corrected while bicycling and went over

the handlebars." Hanefeld does not recall having a conversation with a paramedic,

but states that he was probably overcorrecting for something.

       In the two or three years prior to the accident, Hanefeld had ridden the

section of the trail where he fell about two to three times a year. He had previously

come upon uneven asphalt where the accident occurred. He was also aware of

bumps on that section of the trail, and had previously gone over bumps or cracks

without any problems.

       On July 15, 2016, Hanefeld and his wife sued King County (County),

alleging that its negligence in maintaining the trail caused his injuries. Specifically,

Hanefeld alleged that the County failed to use reasonable care in maintaining the




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trail, and failed to warn him of dangerous trail conditions. Both Hanefeld and his

wife claimed damages as a result of his injuries.1

      The County successfully moved for summary judgment on the basis of

discretionary governmental immunity. The trial court also found that there was "no

evidence raising a material fact on failure to warn." Hanefeld appeals.

                                  DISCUSSION

       Hanefeld argues that he raised genuine issues of material fact on his failure

to warn claim. He asserts that those issues of fact did not involve basic policy

decisions subject to discretionary governmental immunity.

       We review summary judgment orders de novo, considering the evidence

and all reasonable inferences from the evidence in the light most favorable to the

nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).

Summary judgment is appropriate only when no genuine issue exists as to any

material fact and the moving party is entitled to judgment as a matter of law. Id. If

a plaintiff "'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," summary judgment is proper. Young v. Key Pharmaceuticals,

Inc., 112 Wn.2d 216, 225, 770 P.2d 182(1989)(quoting Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)), overruled on other

grounds by, 130 Wn.2d 160, 922 P.2d 59(1996).



      1 In its brief, the County notes that Hanefeld's wife's claim for damages was
dismissed in a separate summary judgment motion and not appealed. This
separate motion and dismissal are not in the record before us.

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  I.   Discretionary Immunity

       In Evangelical United Brethren Church of Adna v. State,67 Wn.2d 246,255,

407 P.2d 440 (1965), our Supreme Court set forth a four-factor test to determine

when discretionary immunity applies:

       (1) Does the challenged act, omission, or decision necessarily
       involve a basic governmental policy, program, or objective? (2) Is
       the questioned act, omission, or decision essential to the realization
       or accomplishment of that policy, program, or objective as opposed
       to one which would not change the course or direction of the policy,
       program, or objective? (3) Does the act, omission, or decision
       require the exercise of basic policy evaluation, judgment, and
       expertise on the part of the governmental agency involved? (4)Does
       the governmental agency involved possess the requisite
       constitutional, statutory, or lawful authority and duty to do or make
       the challenged act, omission, or decision?
The court held that "[i]f these preliminary questions can be clearly and

unequivocally answered in the affirmative, then the challenged act, omission, or

decision can, with a reasonable degree of assurance, be classified as a

discretionary governmental process and nontortious, regardless of its unwisdom."

Id. Our Supreme Court has also held that discretionary immunity is a narrow

doctrine, limited to "discretionary" acts, not "ministerial' or "operational" ones.

Taggart v. State, 118 Wn.2d 195, 214, 822 P.2d 243(1992)(quoting Evangelical,

67 Wn.2d at 254-55). In order for a decision to qualify as discretionary, the State

must show that the decision was the outcome of a conscious balancing of risks

and advantages. Id. at 214-15.

       In Avellaneda v. State, 167 Wn. App. 474, 478, 273 P.3d 477 (2012), the

plaintiffs sued the State, alleging that the Washington State Department of

Transportation (WSDOT) negligently delayed constructing a cable barrier on SR


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512, which would have prevented their crash.              This court determined that

WSDOT's priority programming decision excluding the State Route 512 project

was entitled to discretionary immunity. j.çj. at 484. Applying the Evangelical

factors, it determined: (1) the SR 512 project's priority involved a basic

governmental policy, program, or objective; (2) WSDOT's systematic ranking of

median barrier projects according to their cost/benefit ratios was essential to the

realization of that policy;(3)WSDOT's collection of data about accident history and

the cost of possible median barrier projects in order to rank potential projects

required the exercise of basic policy evaluation, judgment, and expertise; and (4)

WSDOT possessed the requisite authority to formulate the priority array. Id. at

482-83. This court also found that no evidence in the record suggested an

unreasonable delay. Id. at 487.

       Hanefeld does not dispute that the County's decisions about the timing of

trail repairs were entitled to discretionary immunity. Accordingly, we affirm the trial

court's ruling on the issue of duty to repair.

 II.   Failure to Warn

       Discretionary immunity does not apply to the negligent implementation of

discretionary decisions. Avellaneda, 167 Wn. App. at 488. Hanefeld argues that

the County's alleged failure to warn did not involve basic policy decisions subject

to discretionary governmental immunity.              He distinguishes this case from

Avellaneda. Unlike the plaintiffs in Avellaneda, he does not argue that the County

negligently delayed repairing the section of trail where he fell. Rather, he argues




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that the County was negligent by failing to warn him of the trail's dangerous

condition.

       Hanefeld argues that he raised genuine issues of material fact on his failure

to warn claim. He asserts that these facts raise inferences that could allow a jury

to conclude that the County "failed in its duty to provide a reasonable [sic] safe

roadway for users of the Sammamish River Trail."

       A cause of action for negligence requires the plaintiff to establish (1) the

existence of a duty owed,(2) breach of that duty,(3) a resulting injury, and (4) a

proximate cause between the breach and the injury. Tincani v. Inland Empire

Zooloqical Soc'y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Proximate

causation includes both cause in fact and legal causation. Ang v. Martin, 154

Wn.2d 477, 482, 114 P.3d 637 (2005). "Cause in fact" refers to a physical

connection between an act and the injury. Id. Ordinarily, cause in fact is a question

for the jury. Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985). But, the

court may decide this question as a matter of law "when the causal connection is

so speculative and indirect that reasonable minds could not differ." Mehlert v.

Baseball of Seattle, Inc., 1 Wn. App. 2d 115, 119,404 P.3d 97(2017).

       In his deposition testimony, Hanefeld states that "something occurred" as

he passed the family on his bike. He does not recall what the "initiating event"

was. He recalls "suddenly flying over [his] handlebars and tumbling down the hill."

But, he does not recall what caused him to fly over his handlebars. He also recalls

that his "handlebars jerked." He does not recall what caused his handlebars to

jerk. Hanefeld's wife was at the bottom of the hill when the accident occurred. She


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did not testify that she witnessed the accident. There is no other testimony in the

record from any witnesses.

       About a week after the accident, Hanefeld and his wife took pictures of the

trail. Hanefeld's wife testified at her deposition that she thought a root on the trail

in one of the pictures caused Hanefeld's accident. She did not testify that she saw

that specific root on the day of the accident.2 She also testified that, about a week

after the accident, Hanefeld told her that the roots on the trail caused the accident.

She then stated, "If you're asking me did he say the root caused it, you know, I

can't say that unequivocably [sic]." Hanefeld did not testify that a root caused his

accident. And, his wife's testimony that he told her a root caused his accident is

inadmissible to prove that it did. ER 801(c), 802.

       Hanefeld cites three pieces of evidence to support his argument that he

raised genuine issues of material fact. First, he cites a declaration from County

employee Chris Erickson, showing that the stretch of trail where Hanefeld fell was

the County's number one priority on the King County Parks Regional Trail System

Surface Repair Program list.        Second, he cites prior complaints from other

bicyclists about the same stretch of trail. Third, he cites the fact that County

       2 Hanefeld's   wife stated the following,

       We know -- I think that that -- at that section and actually all through
       the trail, cyclists just have to be careful, because, I mean, a rock can
       throw you off. So in this particular case, I think that there were
       probably tree roots or something. It had to be fairly large, whatever,
       in order to throw him the distance that he was thrown.

       When asked if she encountered any bumps, cracks, or uneven surface as
she made her passing maneuver on the day of the accident, she stated that she
did not remember.

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employees had provided warnings of some bumps on the trail prior to his fall by

spray painting them.3 None of this evidence connects the condition of the trail at

the accident site to Hanefeld's fall.

       The only witness testimony in the record is from Hanefeld, and he does not

know what caused him to fly over his handlebars. At his deposition, he was asked

if he recalled going over the cracks or bumps shown in a picture of the trail. He

did not recall going over the cracks or bumps. He was also asked if, while walking

his bike up towards the bollards before his accident, he knew there were bumps

and cracks on that portion of the trail. He answered "no." He did not testify about

the condition of the trail at the time that he fell. Based on this evidence, a jury

could only speculate as to whether the condition of the trail where Hanefeld fell

caused his accident. Accordingly, Hanefeld failed to raise a genuine issue of

material fact as to causation. The trial court properly granted summary judgment

on the failure to warn issue.4

       We affirm.




WE CONCUR:




       3Hanefeld also cites the fact that, after his fall, the County placed warning
signs. His cites to the record do not support this statement. But, even if they did,
evidence of subsequent remedial measures would not be admissible to prove that
the County was negligent. ER 407.
      4 Since Hanefeld does not prevail, his request for fees is denied.

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