                                                                                                       FILED
                                                                                                COURT OF APPEALS
                                                                                                     DIVISION It
                                                                                             2015 AR 10
                                                                                                           A4 8: 37




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

 GUY H. WUTHRICH,                                                            No. 44019 -9 -II


                                   Appellant,


          v.




 KING COUNTY, a governmental entity,                                 UNPUBLISHED OPINION


                                   Respondent,


 CHRISTA GILLAND (PRICE),


                                   Defendant.


         JOHANSON, C. J. —       In 2008, Guy Wuthrich suffered injuries in a motor vehicle collision

with Christa Gilland. After Wuthrich sued both Gilland and King County (County) for negligence,

the trial court granted summary judgment in the County' s favor, dismissing it from the suit.

Wuthrich now appeals. We hold that summary judgment was proper because there is no genuine

issue of any material fact regarding the County' s breach of its duty to exercise ordinary care to

build   and maintain   its   roadways   in   a   reasonably   safe manner   for ordinary travel.   We affirm


summary judgment in the        County' s favor.
No. 44019 -9 -II



                                                           FACTS


                                          BACKGROUND AND PROCEDURE


          On June 20, 2008, Gilland drove             on   159th Street   near   Woodinville in   King County. She

stopped at the-stop line where 159th Street intersects with Avondale Road. Upon stopping, Gilland

looked left   and right    to   scan   for traffic   on   Avondale Road.         Gilland saw no oncoming cars and

turned left onto Avondale. Unfortunately, Gilland' s turn took her into Wuthrich' s path, resulting

in a collision. Large brush contributed to Gilland' s obstructed view of approaching traffic.

          Wuthrich sued both Gilland and the County for negligence. The claim against the County

alleged that the County had " fail[ ed] to design, maintain and operate" the intersection where the

accident occurred " in a reasonably safe condition, with adequate sight distance for motorists using
                1
the roadway. "      Clerk' s Papers ( CP)      at    3.   The suit alleged that both Gilland' s and the County' s

negligence had proximately caused the accident.

          The County answered by denying that it had breached any duty or that it was a proximate

cause of Wuthrich' s accident and moved for summary judgment on both issues.2 In opposition to

summary judgment, Wuthrich offered Gilland' s statement given approximately an hour after the

accident.3 In that statement, Gilland said that just before the accident, she had stopped " at the stop



1 Wuthrich' s negligence claim against Gilland alleged that she had failed to yield the right of way
to him.


2 The trial court also denied two ofWuthrich' s summary judgment motions, but our review is only
of the County' s motion because it resulted in a final judgment triggering an appeal as a matter of
right. RAP 2. 2( a)( 1).


3 Because our review is of an order of summary judgment, the evidence is described in the light
most favorable to Wuthrich, the nonmoving party.

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No. 44019 -9 -II



line   looking   for traffic."     CP   at   432.   Gilland then said that she began turning onto Avondale and

saw Wuthrich just before the accident.


          Wuthrich also offered the investigating officer' s accident report. In his report, the officer
wrote that


           o] n the northwest corner of the intersection there is a large brush line that runs
          from the corner northbound along the west side of Avondale Rd[.] NE. This brush
          line causes somewhat of a site [ sic] obstruction from vehicles stopped eastbound
          NE 159th St[.]      at   the stop bar     looking   north on   Avondale Rd[.] NE. There is also
          a power    light   pole on     the   northwest corner of       the intersection.          However, if you
          move forward (east) to the intersection, the line of sight improves.


CP at 445. Based on his investigation, the officer concluded that " Wuthrich was approaching the

intersection ...    when     Christa Gilland        started   her turn from the    area of     the stop bar."       CP at 450.


          Further, in opposition to summary judgment, Wuthrich offered his own and Gilland' s

deposition testimony.          In his deposition, Wuthrich stated that he was travelling down Avondale

and did not see Gilland' s car until seeing its bumper approximately a second before the accident.

In Gilland' s deposition, she again stated that she did not see Wuthrich until just before the collision.


Gilland also repeatedly testified that she believed that she did not see Wuthrich because of the

brush line and telephone pole.4 When asked what she thought had caused the accident, Gilland

testified that "[ i]t' s   my best of my [sic] recollection of the events, there had to have been an outside

source    why I didn' t     see   him. And the two things that           are   there   are   the   pole and   the   bushes."   CP


at 427.




4 The " brush line" refers to the bushes near the northwest corner of the intersection of NE 159th
Street and Avondale Road in Woodinville. Photographs of the brush line are in the declaration of
Detective James Leach, the lead investigator of this collision.


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No. 44019 -9 -II



            Wuthrich' s accident reconstruction expert, Paul Olson, opined that depending on where

Gilland actually            stopped, "   the sight line for drivers pulling up to this intersection was obstructed."

CP    at   439.        Given that    potential       obstruction,   Olson     opined   that it   was   possible   that "` [ w]hen


 Gilland' s] car began its acceleration, Mr. Wuthrich was too close and had too little time to be able


to   avoid      this   collision. "'      CP   at   438.    Olson testified, although he could not say exactly what

happened without knowing where exactly Gilland stopped, that Wuthrich' s and Gilland' s

deposition testimony about their inability to see each other until just before the accident was

consistent with Wuthrich' s theory that Gilland began her turn from the stop line and that the brush

line could have obstructed her view of Wuthrich from that point.


            Wuthrich' s transportation engineering expert, Edward Stevens, opined that the brush line

at the intersection " obstructed drivers' view of traffic conditions on Avondale Road and 159th

Street     at   the intersection."        CP   at   1265.   Stevens also opined that the " sight obstructions" created


by the brush line " created an inherently dangerous condition at the intersection" that prevented

stopped         drivers from seeing oncoming traffic in time to                 avoid a collision.      CP   at   1265.   Stevens


agreed that the County did not need to remove the brush line to create a safe intersection, but

opined that it needed to take other corrective measures like reducing the speed limit to allow drivers

time to     react      to   possible collisions.
                                                      Stevens also claimed that the County had not complied with

the necessary sight distances required by various design manuals because of the way that it had

used the stop line.

            The trial court granted the County' s summary judgment motion, concluding that " King

County did          not      breach its   duty      of care   and ...       King County was not a proximate cause of




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No. 44019 -9 -I1



 Wuthrich' s] injuries."              CP    at    1280.       The trial court stayed the action against Gilland, and this


appeal followed.


                                                                    ANALYSIS


          Wuthrich contends that the trial court erred when it decided that the County had not

breached its duty of care and was not a proximate cause of his accident as a matter of law. We

disagree with Wuthrich and affirm summary judgment in the County' s favor.

          We review de novo a trial court' s order granting summary judgment, performing the same

inquiry    as    the trial   court.   Lakey           v.   Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P. 3d 860


2013).      Summary judgment is                   appropriate where '                   there is no genuine issue as to any material

fact   and ...     the   moving party            is   entitled     to   a   judgment      as a matter of       law. '     Lowman v. Wilbur,


178 Wn. 2d 165, 168 -69, 309 P. 3d 387 ( 2013) ( internal                                   quotation marks omitted) (            alteration in


original) ( quoting          Michak    v.   Transnation Title Ins. Co., 148 Wn.2d 788, 795, 64 P. 3d 22 ( 2003)).


A material fact is one which affects the outcome of the litigation. Hisle v. Todd Pac. Shipyards


Corp.,    151 Wn.2d 853, 861, 93 P. 3d 108 ( 2004). To determine if a genuine issue of fact exists,


we view all the evidence and draw all reasonable inferences in the light most favorable to Wuthrich


as the nonmoving party. Lakey, 176 Wn.2d at 922.

          A      successful negligence                action requires             the   plaintiff     to   prove   four   elements: "`(   1) the


existence of a        duty [ owed]     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, 178 Wn.2d at 169 ( quoting Crowe v.

Gaston, 134 Wn. 2d 509, 514, 951 P. 2d 1118 ( 1998)).                                          Wuthrich' s appeal concerns whether a


genuine issue of material fact exists regarding whether the County breached a duty to him to either

 1) eliminate inherently dangerous conditions on the roadways or ( 2) exercise ordinary care to


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No. 44019 -9 -II



build    and maintain   its   roadways   in   a   reasonably   safe manner   for ordinary travel.   Because our


review is de novo, we do not concern ourselves with the reasons for the trial court' s ruling. Instead,

we look to the record as a whole to determine whether material facts are in genuine dispute and, if


not, whether the County is entitled to summary judgment as a matter of law.

                                                      I. BREACH


           Wuthrich argues that summary judgment was inappropriate because material issues of fact

remain as to whether an inherently dangerous condition existed at the intersection where the

accident occurred or whether the intersection was reasonably safe for ordinary travel under the

totality of the circumstances. 5 We disagree and hold that the brush line here is not an inherently

dangerous condition because under our Supreme Court precedent, such a condition must exist in


the roadway itself. We also hold that the County did not breach its duty to " build and maintain its

roadways in a reasonably safe manner" that is reasonably safe for ordinary travel. Keller v. City

ofSpokane, 146 Wn.2d 237, 252, 44 P. 3d 845 ( 2002).

           Because the legislature has waived        sovereign   immunity for municipalities, " municipalities

are generally held to the same negligence standards as private parties. "6 Keller, 146 Wn.2d at 242-
43. Municipalities    are,    therefore, " held   to a general duty of care, that of a `reasonable person under




5 Wuthrich also argues that the trial court applied the incorrect standard when it relied on Ruff v.
County of King, 125 Wn.2d 697, 887 P. 2d 886 ( 1995), and not Keller   v. City of Spokane, 146
Wn.2d 237, 44 P. 3d 845 ( 2002). Even granting that this was error, ourreview of a trial court' s
decision on a summary judgment motion is de novo and we, therefore, address Wuthrich' s theories
of liability as he raises them. Lakey, 176 Wn.2d at 922.
6
 The word " municipality" " broadly includes a city, town, county, or the state." 16A DAVID K.
DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE § 18: 17, at 93
    4th ed. 20.13).



                                                           6
No. 44019 -9 -II



the circumstances. '           Keller, 146 Wn.2d at 243 ( quoting DAN B. DOBBS, THE LAW OF TORTS, §

228,   at   580 ( 2000)).      This duty of care requires a municipality to " exercise ordinary care to build

and maintain its roadways in a reasonably safe manner for the foreseeable acts of those using the

roadways."         Keller, 146 Wn.2d at 252 ( citing Berglund v. Spokane County, 4 Wn.2d 309, 319 -21,

103 P. 2d 355 ( 1940)). The " overarching            duty to provide reasonably safe road[ ways]" also includes

a   duty to " eliminate     an   inherently   dangerous   or   misleading    condition."    Owen v. Burlington N. &


Santa Fe R.R. Co., 153 Wn.2d 780, 788, 108 P. 3d 1220 ( 2005).                     The duty to eliminate inherently

dangerous conditions is only a specific aspect of a municipality' s general duty of care and a

plaintiff may show a municipality has breached its duty without showing a failure to eliminate an

inherently dangerous condition. Xiao .Ping Chen v. City ofSeattle, 153 Wn. App. 890, 909, 223

P. 3d 1230 ( 2009),      review    denied, 169 Wn.2d 1003 ( 2010). These two independent duties are the


bases of Wuthrich' s claim against the County. However, both are unpersuasive.

                   A. THE BRUSH LINE DID NOT CREATE AN INHERENTLY DANGEROUS CONDITION


            Wuthrich' s contention that the County' s failure to maintain the brush line at the intersection

created an        inherently   dangerous   condition     is   meritless   based   on   Supreme Court   precedent.   An


inherently dangerous condition is one that exists in the roadway itself. Barton v. King County, 18

Wn.2d 573, 576 -77, 139 P. 2d 1019 ( 1943) (             quoting Leber v. King County, 69 Wash. 134, 136 -37,

124 P. 397 ( 1912)).           Moreover, " where     a road itself is reasonably safe for public travel, it is not

rendered       inherently dangerous           to   travelers    exercising   reasonable     care,   solely because a

municipality fails to remove vegetation located off of the road, which tends to obstruct the view."

Rathbun      v.   Stevens   County, 46 Wn.2d        352, 356, 281 P. 2d 853 ( 1955);       see also Bradshaw v. City




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No. 44019 -9 -II



of Seattle, 43 Wn. 2d 766, 773 -75, 264 P. 2d 265 ( 1953);              Barton, 18 Wn.2d at 576 -78. 7 Here, to

defeat summary judgment, Wuthrich relied on Stevens' s declaration and Olson' s deposition

testimony. However, they both stated that only the brush line, rather than a defect in the road,

created the    inherently     dangerous    condition.      Based on Barton, Rathbun, and their progeny, any

visibility problems that the brush line may have created are irrelevant to this theory of breach, and

summary judgment was proper.

     B. THE COUNTY EXERCISED ORDINARY CARE TO BUILD AND MAINTAIN ITS ROADWAYS


        Likewise,       Wuthrich' s contention that the County failed to build and maintain the

intersection   so   that it   was   reasonably   safe   for ordinary travel is   also not viable.   While Wuthrich


cannot show an inherently dangerous condition because of Barton and subsequent cases, he did

not need to do so if, instead, a triable question of fact exists as to whether the County failed to

build and maintain the intersection in a reasonably safe manner for ordinary travel given the totality

of the circumstances. Xiao Ping Chen, 153 Wn. App. at 909 -11.

        In the light most favorable to him, Wuthrich' s evidence established that Gilland stopped at


the stop line, that the brush line obstructed the view of traffic on Avondale from the stop line, and

that the County failed to remedy the danger created by the brush line through other measures, such



7 Wuthrich responded to the County' s citation to these cases by claiming that the County was
raising issues properly addressed in review of a different summary judgment order, one related to
the County' s duty as a landowner. Wuthrich is incorrect that the County raises arguments not

specifically relevant to his appeal. The County cited these cases as legal support for the argument
that it had no duty to maintain the brush line, a central issue in Wuthrich' s appeal. Because
Wuthrich does       not provide " reasoned argument,"             other than an attempt to incorporate arguments
here from his motion for discretionary review and his reply in support of his motion for
discretionary review, we hold that Wuthrich abandoned any arguments about the inapplicability
of Barton and its progeny.
                           Cf.Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290,
review denied, 136 Wn.2d 1015 ( 1998).


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No. 44019 -9 -II


as   by   requiring   reduced speed          through the intersection          or   by     moving the stop line.      Wuthrich' s


transportation        engineering         expert,   Stevens, opined that the brush line at the intersection


 obstructed     drivers' view of traffic conditions on Avondale Road and 159th Street at the


intersection."    CP    at   1265.       Stevens agreed that the County did not need to remove the brush line

to create a safe intersection, but opined that it needed to take other corrective measures, like


reducing the     speed   limit to        allow   drivers   more     time to   react   to   possible collisions.    But Wuthrich


does not point to any authority to suggest that taking corrective action in response to overgrown

brush is part of the County' s general duty, and we fail to see how a trier of fact could, based on

the totality of this evidence, find that the County breached its duty to exercise ordinary care in

building and maintaining its roadways in a manner reasonably safe for ordinary travel.

           Wuthrich cites to Xiao Ping Chen in support of his position that we are to view the County' s

duty to exercise ordinary care in building and maintaining the roadways broadly and under the

totality of the circumstances. However, Xiao Ping Chen does not change the result here. In Xiao

Ping Chen, a woman sued the city for negligently maintaining one of its roads after her husband

was   killed crossing        a   busy    downtown     street   in   a crosswalk.         153 Wn.   App.   at   894 -95.   Division


One reversed an order of summary judgment in the city' s favor, explicitly rejecting its argument

that its duty of care extended only to eliminating inherently dangerous conditions or complying

with statutes, ordinances, or regulations governing the maintenance of the crosswalk. Xiao Ping

Chen, 153 Wn.         App.       at   900 -09.   Instead, Division One held that the city' s general .duty of care

required it to maintain its roadways in a manner reasonably safe for ordinary travel under the

totality of the circumstances. Xiao Ping Chen, 153 Wn. App. at 900 -01.




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No. 44019 -9 -II



          Here, Wuthrich alleges that the brush line obstructed Gilland' s view of the intersection.


Unlike in Xiao Ping Chen, where it is reasonable to assume that the absence of a stop sign,

pedestrian signals, or a stop light rendered the roadway unsafe, the brush line here is not part of

the roadway itself nor does it regulate the traffic on the roadways. Wuthrich presents no evidence

that the County failed to build or maintain its roadways in a manner reasonably safe for ordinary

travel.    The County had, in fact, ,improved the roadway in 2005, and Gilland' s accident with

Wuthrich in 2008 was only the third that had occurred since the improvements.

          In Owen, the plaintiff' s parents were killed in a railroad crossing when the gate trapped

them in their    vehicle on   the tracks.       153 Wn.2d         at   784 -85.    Our Supreme Court held that " the


presence of traffic signals that cause vehicles to halt on multiple sets of tracks, and the alleged


limited visibility   of westbound         drivers" could create a question of fact about whether Tukwila


breached its duty to maintain the roads in a condition that was reasonably safe for ordinary traffic

or if there was an inherently dangerous or misleading condition. Owen, 153 Wn.2d at 790.

          Again, in Owen, the       plaintiff   based her    claim on a problem with          the roadway itself —that


it   regulated traffic   unsafely   when cars were required              to stop   on   the tracks.   Under Wuthrich' s


theory of breach, however, it was the brush line that allegedly obstructed the sight line and nothing

about the roadway itself that rendered it unsafe for ordinary travel. The County owed no duty to

maintain the brush line, and Wuthrich' s theory of liability would impose a duty on the County to

monitor, reevaluate, and move the stop line or change the posted speed limit whenever the brush

line might seasonally      grow     to   obstruct a   driver' s   view.    Wuthrich' s theory of liability, assuming

that any condition of the road itself could trigger the County' s duty to maintain the roadways in a

reasonably safe condition for ordinary travel, would also eliminate any distinction between this


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No. 44019 -9 -II



broader,      common law duty and a municipality' s duty to remedy inherently dangerous or

misleading conditions. Wuthrich, therefore, has failed to point to a breach of the County' s duty to

build and maintain its roadways in a reasonably safe condition for ordinary travel.

         Wuthrich also argues that the County breached its general duty to build and maintain the

roadways in a manner reasonably safe for ordinary travel when it failed to move the stop line at

the intersection.       The County argues that summary judgment was appropriate because statutory

provisions define its duty to design and maintain the intersection and that it complied with those

statutory provisions. We agree with the County.

         As noted above, the County' s duty of care is defined primarily by the common law. Keller,

146 Wn.2d       at   243.   Compliance with roadway statutes, ordinances, or regulations is relevant to

whether a municipality has breached its common law duty to provide roadways reasonably safe

for ordinary travel.        Owen, 153 Wn.2d        at   787.    A municipality may breach its duty to provide

reasonably safe roadways even if it complies with relevant statutes or safety standards; evidence

of compliance is therefore only relevant to, but not determinative of, a determination that a

municipality has breached its duty. Xiao Ping Chen, 153 Wn. App. at 894, 900 -01.

          Stevens, a transportation engineer, claimed that the County had not complied with the

necessary sight distances required by various design manuals because of the way that it had used

the stop line.       Specifically, Stevens' s deposition stated that because of the overgrown brush line,

the   sight   distance from the stop line    was    less than       a   third   of   the   required sight   distance. Gilland


also   testified that the    blackberry   bushes   obstructed       her   view of      traffic   on   Avondale Road. CP at


417 ( " I do know that I' ve been through the intersection and thought that those bushes are




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No. 44019 -9 -II



overgrown and      it   makes   it hard to   see   down the roadway.... [   F] rom what I recall, it completely

blocked out my ability to see between the bushes and the power line. ").

           Wuthrich' s argument about the sight line from the stop line is also distinguishable from

Xiao Ping Chen and Owen because, again, he only alleges that the brush line obstructed the sight

line and not any failure to build or maintain the roadway itself. Because the brush line is not part

of the roadway, the County has no duty to maintain or to manage the brush line or to regularly

monitor and adjust the stop line based on the growth of the brush line. Therefore, we hold that the

County has not breached its duty to maintain the roads in a reasonably safe condition for ordinary

travel.$


           Because the evidence establishes that the brush line may have obstructed Gilland' s line of

sight and the condition of the brush line does not create an inherently dangerous condition nor does

it trigger the County' s duty to maintain the roadways in a reasonably safe condition for ordinary




8 The County advances several other arguments to support its position that summary judgment was
proper, including that ( 1) it cannot have breached its duty to provide reasonably safe roadways
unless it had notice that the roadway was unsafe and failed to take corrective measures, ( 2) it could
not have breached any duty because it had no duty to make the intersection safer and, therefore,
no duty to adopt the sight lines Wuthrich claims applied, ( 3) it did not breach its duty of care

because that duty only required it to provide roadways reasonably safe for the foreseeable uses of
travelers and Gilland' s negligence was unforeseeable, and ( 4) that Wuthrich has failed to show
that the placement of the stop line was a cause in fact of his accident because he failed to show
that Gilland stopped there. Because we agree with the County that it did exercise ordinary care to
build and maintain its roadways in a reasonably safe manner, we do not reach the County' s
additional arguments.




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travel, we hold that there is no genuine issue as to any material fact and the County is entitled to

judgment as a matter of law.9 We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




 I concur:




9 We do not reach the issue of proximate cause because we hold that there is no breach of duty.
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        BJORGEN, J. ( dissenting)          — I dissent, because genuine issues of material fact remain to be

decided before the County' s liability for these unsafe conditions can be determined. For this

reason, the superior court' s grant of summary judgment was improper under CR 56 and should

be reversed.

        Turning first to the governing standards, the majority is correct that Barton v. King

County,    18 Wn. 2d 573, 577, 139 P. 2d 1019 ( 1943) (                quoting Leber v. King County, 69 Wash.

134, 136, 124 P. 397 ( 1912)),           held that an inherently dangerous condition is one that exists in the

roadway itself. The present validity of a legal definition of dangerousness developed under the

road and traffic conditions of a century ago is precarious at best. Whatever its remaining vitality,

however, the Barton /Leber holding does not control the analysis of this appeal.

        In Rathbun        v.   Stevens   County,   46 Wn.2d 352, 356, 281 P. 2d 853 ( 1955) (              citing Barton,

18 Wn.2d    at   577),    our   Supreme Court held that "[         w]here a road itself is reasonably safe for

public travel, it is not rendered inherently dangerous to travelers exercising reasonable care,

solely because a municipality fails to remove vegetation located off of the road, which tends to

obstruct   the   view."    By its   terms, this    holding   is   restricted   to situations   where "[   the] road itself is


reasonably   safe   for   public    travel,"   allowing an interpretation that the failure to remove

obstructing vegetation could create an inherent danger if the road were unsafe as a result. At

most, the Rathbun holding means that the failure to remove obstructing vegetation by itself does

not create an inherently dangerous condition.

        Subsequent case law, though, has shown that the duty to eliminate inherently dangerous

conditions is only one aspect of a municipality' s general duty of care and that a municipality may




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No. 44019 -9 -I1



be liable without showing a failure to eliminate an inherently dangerous condition. Chen v. City

of Seattle, 153 Wn.     App.   890, 909, 223 P. 3d 1230 ( 2009).              Specifically, the court held that

         In determining whether a dangerous condition exists at a roadway and whether a
         municipality has breached its duty to maintain a roadway in a safe condition, the
         trier of fact may infer that a breach has occurred based on the totality of the relevant
         surrounding circumstances, regardless of whether there is proof that a defective
         physical characteristic in the roadway rendered the roadway inherently dangerous
         or inherently misleading.

Chen, 153 Wn. App. at 909.

         Contrary to these principles, the majority concludes that because the brush line is not part

of the roadway, the County has no duty to maintain or to manage it, or to regularly monitor and

adjust the stop bar based on the growth of the brush line. Chen, however, makes clear that even

if the obstructing brush is not an inherently dangerous condition, the trier of fact may still hold

the municipality     liable " based   on   the   totality   of   the   relevant   surrounding   circumstances."   Chen,


153 Wn. App. at 909.

         Among those relevant circumstances in this appeal are the placement of the stop bar on

159th Street and the presence of signs on Avondale Road warning traffic to slow down. Edward

Stevens, Wuthrich' s transportation engineer, opined that the brush line at the intersection


 obstructed drivers' view of traffic conditions on Avondale Road and 159th Street" and that the


 sight obstructions" created by the brush line " created an inherently dangerous condition at the

intersection" that prevented stopped drivers from seeing oncoming traffic " in time to avoid a

collision."   Clerk' s Papers ( CP) at 1265. Stevens also testified in his deposition that because of


the overgrown brush, the sight distance from the stop bar was less than a third of the required

sight   distance.   Stevens was further asked at his deposition whether he noticed " any deficiencies



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No. 44019 -9 -II



in signage" at the intersection of Avondale and 159th Street. CP at 454. He responded by

stating:


                    Well, it depends on how the county should have rectified the sight distance
           deficiency. If it was their desire to leave the blackberry bushes where they were,
           then there would be speed reduction called for through the intersection. If they

           decided to cut all the blackberries down, let' s say, to provide adequate sight
           visibility, then the signing that' s there would have been appropriate.

CP at 454.


           Christa Gilland testified that the blackberry bushes obstructed her view of traffic on

Avondale Road. Further, the investigating officer' s accident report stated that

           o] n the northwest corner of the intersection there is a large brush line that runs
           from the    corner northbound           along the   west side of    Avondale Rd[.] NE. This brush
           line causes somewhat of a site [ sic] obstruction from vehicles stopped eastbound
           NE 159th St.       at   the stop bar    looking   north on   Avondale Rd[.] NE. There is also a
           power light pole on the northwest corner of the intersection. However, if you move
           forward ( east) to the intersection, the line of sight improves.


CP at 445.


           The County argues that it cannot have breached its duty to provide reasonably safe

roadways unless it had notice that the roadway was unsafe and failed to take corrective measures.

The   County, however, " is no more entitled to one free accident than a dog is entitled to one free

bite." Tanguma         v.   Yakima       County,   18 Wn. App. 555, 562, 569 P. 2d 1225 ( 1977).      A municipality

 may   not    find   refuge   in   a `   long history   of good   fortune, '   Tanguma, 18 Wn. App. at 563 ( quoting

Butler   v.   L. Sonnenborn Sons, Inc., 296 F.2d 623, 626 ( 2d Cir. 1961)), if an accident resulted from


its failure to " exercise ordinary care to build and maintain its roadways in a reasonably safe manner

for the foreseeable         acts of those     using the   roadways."
                                                                          Keller v. City ofSpokane, 146 Wn.2d 237,

252, 44 P. 3d 845 ( 2002). The claimed absence of notice plays no role in this analysis.




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        Stevens' s and Gilland' s testimony and the accident report raise genuine issues of material

fact as to whether, under the totality of the circumstances test announced in Chen, the County

breached its duty to design and maintain reasonably safe roadways with respect to signage on

Avondale and placement of the stop bar on 159th Street. The same evidence also raises genuine

issues of material fact under the test in Chen as to whether the County' s breach of duty was a

cause -in -fact and legal cause of Wuthrich' s injuries. Lowman v. Wilbur, 178 Wn.2d 165, 169-

72, 309 P. 3d 387 ( 2013).   For these reasons, summary judgment was improper under CR 56( c)

and should be reversed.




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