Johnny Ferara v. Makayle G Rich ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON en
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DIVISION ONE 5»
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JOHNNY FERARA, No. 71535-6- —j ^a-ol
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156 Wash. 2d
168, 177, 125 P.3d 119 (2005). Summary judgment is appropriate when there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law. CR 56(c); Mossman v. Rowley, 154 Wash. App. 735, 740, 229 P.3d 812
(2009).
A defendant can move for summary judgment by showing that there is an
absence of evidence to support the plaintiff's case. Young v. Key Pharm., Inc., 112
Wash. 2d 216, 225, 770 P.2d 182 (1989) (citing Celotex Corp. v. Catrett. 477 U.S. 317,
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322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If the defendant shows an absence of
evidence to establish the plaintiff's case, the burden then shifts to the plaintiff to set forth
specific facts showing a genuine issue of material fact for trial. Young, 112 Wash. 2d at
225. A material fact is one that affects the outcome of the litigation. Eicon Constr., Inc.
v. E. Wash. Univ., 174 Wash. 2d 157, 164, 273 P.3d 965 (2012).
While we construe all evidence and reasonable inferences in the light most
favorable to the nonmoving party, ifthe 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. Jones v.
Allstate Ins. Co., 146 Wash. 2d 291, 300, 45 P.3d 1068 (2002V. Young. 112 Wash. 2d at 225
(quoting Celotex, 477 U.S. at 322).
The nonmoving party may not rely on speculation or "mere allegations, denials,
opinions, or conclusory statements" to establish a genuine issue of material fact, intl
Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co.. 122 Wash. App. 736, 744, 87 P.3d 774
(2004) (citing Grimwood v. Univ. of Puoet Sound. Inc., 110 Wash. 2d 355, 359, 753 P.2d
517 (1988)). Supporting affidavits must contain admissible evidence that is based on
personal knowledge. Grimwood, 110 Wash. 2d at 359. A party's self-serving opinion and
conclusions are insufficient to defeat a motion for summary judgment. Grimwood, 110
Wash. 2d at 359-61.
There is no dispute that Rich's vehicle was proceeding straight through the
intersection and Tyler's vehicle was turning left. As a matter of law under RCW
46.61.185, Rich was the favored driver and Tyler was obligated to "yield the right-of-way
to any vehicle approaching from the opposite direction." See Mossman, 154Wn. App.
at 740-41. Because Tyler had the "primary duty to avoid a collision," he was required to
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No. 71535-6-1/5
yield even if" 'the oncoming vehicle was proceeding unlawfully.'" Mossman, 154 Wn.
App. at 740 (quoting Dohertv v. Mun. of Metro. Seattle. 83 Wash. App. 464, 470, 921 P.2d
1098(1996)).
As the favored driver, Rich was entitled to rely on the reasonable expectation that
Tyler would yield the right-of-way until she reached the "point of notice." Whitchurch v.
McBride. 63 Wash. App. 272, 276, 818 P.2d 622 (1991); Channel v. Mills, 77 Wash. App.
268, 278-79, 890 P.2d 535 (1995). The "point of notice" is "that point at which a
reasonable person exercising reasonable care would realize that the disfavored driver is
not going to yield." Whitchurch, 63 Wash. App. at 276.
To establish that Rich's speed was a cause in fact of the accident, Ferara must
prove that "but for excessive speed, the favored driver, between the point of notice and
the point of impact, would have been able to brake, swerve or otherwise avoid the point
of impact." Channel, 77 Wash. App. at 278-79. As a threshold, Ferara must produce
"evidence showing the approximate location" of the point where Rich "would have
perceived danger." Whitchurch, 63 Wash. App. at 276-77; Channel, 77 Wash. App. at 278-
79. Ferara must also show that if Rich had been driving at or below the speed limit, she
could have "stopped or otherwise avoided the collision" after passing the point of notice.
Channel, 77 Wash. App. at 274-75.
The only evidence Ferara submitted was his own declaration containing only self-
serving opinions and conclusory assertions. The declaration states, in pertinent part:
9. It seemed to me, on a more likely than not basis, that Rich was
traveling at a speed greater than prudent when the collision occurred.
10. Had she slowed just a little, she would have avoided the collision with
Tyler's car.
11. It seemed to me that there was ample opportunity for Rich to stop
once she realized Tyler Ferara was turning in front of her, but failed to
do so.
No. 71535-6-1/6
12. Rich could have also attempted to move out of the lane briefly to
avoid the collision, however she failed to do so.
" The whole purpose of summary judgment procedure would be defeated if a
case could be forced to trial by a mere assertion that an issue exists without any
showing of evidence.'" Meissner v. Simpson Timber Co.. 69 Wash. 2d 949, 956, 421 P.2d
674 (1966) (quoting Reed v. Streib. 65 Wash. 2d 700, 706, 399 P.2d 338 (1965)).
Although the issue of negligence "is generally one for the jury to determine," summary
judgment may be appropriate when "all reasonable minds would agree" that the favored
driver "exercised the care which a reasonably prudent [person] would have exercised
for his [or her] own safety under the circumstances." Bauman v. Complita, 66 Wash. 2d
496, 497-98, 403 P.2d 347 (1965).
Because Ferara failed to provide any factual evidence tending to establish Rich's
speed, the approximate location of the point of notice, or her ability to brake or swerve
between the point of notice and the point of impact, there is no genuine issue of material
fact as to whether Rich was negligent. The court did not err in granting the motion for
summary judgment.
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WE CONCUR: