Lowman v. Wilbur

/FIL:·E,
IN CLIRICI OfiPICI "-- •
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DATE _fAIUIG ~ 8 ?~3
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CHIEFJUS 7
IN THE SUPREME COURT OF THE STATE OF WASHINGTON

NATHAN LOWMAN, a single person,

Petitioner,

v.

JENNIFER WILBUR and JOHN DOE NO. 86584-1
WILBUR, husband and wife and the marital
community composed thereof; COUNTRY
CORNER, INC. d/b/a COUNTRY
CORNER, a Washington corporation;
ANACORTES HOSPITALITY, INC. d/b/a ENBANC
COUNTRY CORNER, a Washington
corporation,

Defendants,
AUG 8 2013
Filed - - - - ® - -
-
and

COUNTY OF SKAGIT and PUGET
SOUND ENERGY, a Washington
corporation,

Respondents.

STEPHENS, J.-This case presents an opportunity to clarify the

interrelationship between questions of duty and legal causation in the context of a
Lowman v. Wilbur, et vir., et al., 86584-1

municipality's or utility's obligation to design and maintain reasonably safe

roadways. We held in Keller v. City of Spokane, 146 Wn.2d 237, 44 P.3d 845

(2002), that the duty to design and maintain reasonably safe roadways extends "to
all persons, whether negligent or fault-free." Id. at 249. Today, we hold that the

reasoning of Keller equally supports a determination of legal causation in this

context. Therefore, if the jury finds the negligent placement of the utility pole too

close to the roadway was a cause of Lowman's injuries when Wilbur's car left the

roadway and struck the pole then it was also a legal cause of Lowman's injuries.

Contrary Court of Appeals cases predating Keller are disapproved. We reverse the

Court of Appeals decision upholding the summary judgment order in Puget Sound

Energy's (PSE) and Skagit County's favor and remand for further proceedings.

FACTS

On the night of August 5, 2005, Nathan Lowman and Jennifer Wilbur left a

bar together. With Lowman as a passenger, Wilbur drove along Satterlee Road, a

two-lane country road near Anacortes, Washington. As Wilbur was driving down

a steep, winding hill, she lost control of her vehicle, left the road, and hit a PSE

utility pole. The utility pole was located 4.47 feet from the edge of the roadway.

Lowman sustained severe injuries, including the permanent disfigurement of his

right arm.

Lowman brought a negligence claim against Wilbur, PSE, Skagit County

and others. As to PSE and Skagit County, Lowman alleged misplacement of the

utility pole. PSE and Skagit County filed a joint motion for summary judgment

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Lowman v. Wilbur, et vir., eta!., 86584-1

solely on the issue of legal causation, stipulating to the elements of duty, breach,

resulting injury, and cause in fact for the purpose of summary judgment only.

Lowman presented evidence from a civil engineer that Skagit County utility pole

placement standards "included a ten foot 'clear zone'" between the edge of the

road and utility poles along Satterlee Road. Clerk's Papers at 167. Other evidence

showed that Wilbur was speeding at the time of the accident and that she was

driving while under the influence of alcohol.

The trial court granted PSE's and Skagit County's joint motion for summary

judgment, dismissing Lowman's claims against those parties on the basis that the

alleged negligent placement of the utility pole was not a legal cause of Lowman's

injuries. The Court of Appeals affirmed the trial court's order. Lowman v. Wilbur,

noted at 162 Wn. App. 1029 (20 11 ). Lowman then petitioned this ·court for

review, which was granted. Lowman v. Wilbur, 173 Wn.2d 1016,, 272 P.3d 247

(2012).

ANALYSIS

We review an order granting or denying summary judgment de novo. Jones

v. Allstate, Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). "A motion for

summary judgment is properly granted 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."' Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22

(2003) (alteration in original) (quoting CR 56(c)).

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Lowman v. Wilbur, et vir., et al., 86584-1

In order to recover on a common law claim of negligence, a plaintiff "must

show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a

resulting injury, and (4) the breach as the proximate cause of the injury." Crowe v.

Gaston, 134 Wn.2d 509,514,951 P.2d 1118 (1998). Washington "recognizes two

elements to proximate cause: [c]ause in fact and legal causation." Hartley v. State,

103 Wn.2d 768, 777, 698 P.2d 77 (1985). Here, legal causation is the only element

at issue because PSE and Skagit County stipulated to the elements of duty, breach,

resulting injury, and cause in fact for the purpose of summary judgment.

Legal causation "is grounded in policy determinations as to how far the

consequences of a defendant's acts should extend." Crowe, 134 Wn.2d at 518. In

deciding whether a defendant's breach of duty is too remote or insubstantial to

trigger liability as a matter of legal cause, we evaluate '"mixed considerations of

logic, common sense, justice, policy, and precedent."' Hartley, 103 Wn.2d at 779

(quoting King v. City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)).

We have long recognized the interrelationship between questions of duty

and legal cause. Hartley, 103 Wn.2d at 779-81. In Hartley we explained that both

questions concern the policy issue of how far the legal consequences of the

defendant's negligence should extend. Id. at 779-80; see also Schooley v. Pinch's

Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998). In the context of

liability for negligent roadway design or maintenance, any consideration of the

legal cause question should therefore begin with a review of the duty question, as

analyzed in Keller, 146 Wn.2d 237.

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Lowman v. Wilbur, et vir., et al., 86584-1

This court in Keller held that "a municipality owes a duty to all persons,

whether negligent or fault- free, to build and maintain its roadways in a condition

that is reasonably safe for ordinary travel." Id. at 249. The court rejected the

notion that recognizing this responsibility toward drivers who use the roads in a

negligent manner would make municipalities liable for all traffic accidents. Id. at

251-52. We emphasized that only reasonable care is owed and noted that a

resulting injury must not be too remote under a legal cause analysis. !d. at 252.

Keller represented an important clarification of Washington law, correcting

previous suggestions from lower courts that municipalities need not design or

maintain roads to protect against negligent or reckless conduct, including conduct

by those who may be comparatively at fault for their injuries. This view had

gained traction in a line of lower court cases beginning with Klein v. City of

Seattle, 41 Wn. App. 636, 705 P.2d 806 (1985) and Braegelmann v. County of

Snohomish, 53 Wn. App. 381, 766 P.2d 1137 (1989). See also Cunningham v.

State, 61 Wn. App. 562, 811 P.2d 225 (1991); Medrano v. Schwendeman, 66 Wn.

App. 607, 836 P.2d 833 (1992). Under either a duty or a legal cause analysis, these

Court of Appeals cases rejected the imposition of liability for roadway design and

maintenance as to extremely negligent or criminally reckless drivers.

Medrano is the most factually similar case to this one. There, a drunk driver

lost control of his truck and hit a power pole. 66 Wn. App. at 608-09. In a suit

brought by one of the injured passengers, the defendant-driver Schwendeman

cross-claimed against King County and Puget Power for negligent design and

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Lowman v. Wilbur, et vir., et al., 86584-1

maintenance of the roadway and for negligent positioning of the pole. !d. at 610.

On summary judgment, the trial court ruled against Schwendeman. Id. Using a

legal cause analysis, the Court of Appeals affirmed~ reasoning that "[t]he County

and Puget Power should not be re<:J~lired to protect against the consequences of

criminally reckless drivers." I d. at 613 .

As noted, this court in Keller took a broader view of a municipality's or

utility's responsibility to protect the users of public roads. Analyzing the question

of duty, the court unequivocally rejected limitations on liability for roadway design

or maintenance premised on the negligence or recklessness of a driver. Keller, 146

Wn.2d at 249. The Court of Appeals in Unger v. Cauchon, 118 Wn. App. 165, 73

P.3d 1005 (2003), subsequently recognized that Keller departed from earlier Court

of Appeals cases. See id. at 173-76. Nonetheless, PSE and Skagit County

continue to rely on these cases, reasoning that Keller's holding pertains only to the

question of duty, not to the question of legal cause.

We disagree. We cannot disregard Keller's holding that the responsibility to

design and maintain reasonably safe roadways extends to both at fault and fault

free drivers. Keller, 146 Wn.2d at 249. Many of the same concerns that guided

the duty analysis in Keller must guide the analysis of legal causation in this case.

Legal cause "is grounded in policy determinations as to how far the consequences

of a defendant's acts should extend." Crowe, 134 Wn.2d at 518. "Legal causation

is, among other things, a concept that permits a court for sound policy reasons to

limit liability where duty and foreseeability concepts alone indicate liability can

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Lowman v. Wilbur, et vir., et al., 86584-1

arise." Schooley, 134 Wn.2d at 479. At the same time, the policy considerations

that support imposition of a duty will often compel the recognition of legal

causation, so long as cause-in-fact is established under the relevant facts. See

Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 476, 656 P.2d 483 (1983) (holding

"as a matter of law in wrongful birth cases, if cause in fact is established, the

proximate cause element is satisfied"). Such is the case here. If Lowman's

injuries were in fact caused by the placement of the utility pole too close to the

roadway, then they cannot be deemed too remote for purposes of legal causation.

Schooley is instructive in this analysis. There, an alcohol vendor sought to

limit its liability for selling alcohol to a minor, where the minor shared the alcohol

with another minor who severely injured herself while inebriated. Schooley, 134

Wn.2d at 472. The Schooley court recognized that the legal cause question was not

determined by separate concerns as to the scope of duty, contributory negligence,

or superseding cause. Id. at 480-83. Rather, as to legal cause, the court held that

"[t]he injury suffered is not so remote as to preclude liability and the policy

considerations behind the legislation are best served by holding vendors liable for

the foreseeable consequences of the illegal sale of alcohol to minors." Id. at 483.

Likewise, here, there is no rationale to negate the sound policy preference

expressed in Keller for holding municipalities and companies charged with

maintaining utilities accountable for doing so in a reasonable fashion, particularly

with regard to safe travel on public roads. Whatever the reasons for a car's

departure from a roadway, as a matter of policy we reject the notion that a

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Lowman v. Wilbur, et vir., et al., 86584-1

negligently placed utility pole cannot be the legal cause of resulting injury. As in

Schooley, the injury here was not so remote as to preclude liability as a matter of

law. If a jury concludes that Lowman suffered injuries within the scope of the duty

owed to Lowman-i.e., that his injury was not too remote-then there is no basis

to foreclose liability as a matter of legal cause. Of course, this analysis answers

only the legal prong of the causation analysis. At trial, a jury could limit or negate

liability on any number of theories, including comparative fault or the failure to

prove factual causation.

CONCLUSION

We reverse the Court of Appeals. The trial court erred in granting summary

judgment of dismissal on the issue of legal causation. Recognizing that duty and

breach were stipulated for the purpose of summary judgment only, we hold that

legal causation is satisfied here and remand for further proceedings.

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Lowman v. Wilbur, et vir., et al., 86584-1

WE CONCUR:

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Lowman v. Wilbur, et vir., et al.

No. 86584-1

MADSEN, C.J. ( concurring)-Because the majority paints with a fairly broad

brush, some of its general statements might be misinterpreted as standing for the incorrect

conclusion that legal causation has no independent meaning as an element of a

negligence action. For example, the majority says that the reasoning that underlies the

holding in Keller v. City of Spokane, 146 Wn.2d 237, 44 P.3d 845 (2002), that the duty to

design and maintain reasonably safe roadways extends to negligent and fault- free

persons, applies equally to the issue of legal causation. Majority at 2. Therefore, the

majority reasons, if the jury finds cause-in-fact in this context, then legal causation must

exist as well. I d. Read out of context, this appears to say that legal causation is

necessarily found if duty and cause-in-fact exist.

I write separately to emphasize, however, that the majority opinion should not be

broadly read to mean that whenever duty exists and cause-in-fact is found, legal causation

exists. Any such interpretation would involve an incorrect statement of law. Rather,

some considerations involved in deciding whether a duty exists may also be relevant

considerations when determining legal causation. However, this does not mean that legal

causation and duty are congruent-they are not.

A careful reading of the majority shows this to be the case. For example, the

majority says that it disagrees with the premise that Keller's holding only pertains to the
No. 86584-1
Madsen, C.J., concurring

question of duty. Majority at 6. But then an important qualifier follows. The majority

adds that "[m]any of the same concerns that guided the duty analysis in Keller must guide

the analysis oflegal causation in this case." Majority at 6. This means that a court must

independently examine the questions of duty and legal causation, recognizing that the

same or similar policy concerns may apply to each but do not substitute for the distinct

elements of the cause of action.

In the context here, the close relationship between duty and legal causation occurs

because of the fundamental policy questions involved in deciding whether a duty to

design and maintain roadways is owed to drivers who are themselves negligent and

whether legal causation can be found notwithstanding the negligence of the driver. It is

the particular context that produces this close relationship. Of course, if, rather than

describing the similarities here, the majority instead engaged in a detailed description of

the duty found in Keller and then independently engaged in a detailed analysis of legal

causation here, the relationship between the elements in this context might be clearer. It

would show more unmistakably how the elements of duty and legal causation are driven

by many of the same considerations and would also show whether additional policy-
1
based considerations are at work.

1
Although the dissent is justifiably concerned about taxpayers ultimately paying for damages
arising out of criminal behavior, and it seems counterintuitive to speak of public policy favoring
legal causation when both the driver and the plaintiff-passenger are intoxicated, the legislature
appears to be moving in this direction.
For example, the legislature has weighed in on the question of proximate cause where the
driver of a motor vehicle is intoxicated and her intoxicated passenger is injured. At one time,
intoxication of the plaintiff was a complete defense to liability if the intoxication was a

2
No. 86584-1
Madsen, C.J., concurring

At the end of the day, there is no shortcut. Parties are advised that they cannot

simply reduce this case to a formula of "duty plus cause-in-fact equals legal causation."

Rather, duty and legal causation are separate elements that must be determined in accord

with our cases. E.g., Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 951 P .2d 749

(1998); Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985).

With these clarifications, I join the majority opinion.

proximate cause ofthe injury and the plaintiff was found to be more than 50 percent at fault.
The legislature amended the relevant statute to state an exception that provides that this rule does
not apply in a personal injury action against an intoxicated motor vehicle driver whose condition
was a proximate cause of the injury and the intoxicated plaintiffs condition was not a proximate
cause of the injury causing occurrence. RCW 5.40.060(2). The amendment reflects legislative
policy altering the element of legal causation when intoxicated drivers are involved in accidents
on the roadways.

3
No. 86584-1
Madsen, C.J., concurring

4
Lowman v. Wilbur, et vir., et al., No. 86584-1
Dissent by J.M. Johnson, J.

No. 86584-1

J.M. JOHNSON, J. (dissenting)-Washington taxpayers should not be

forced to pay massive judgments to criminal motorists who cause injuries to

themselves or their passengers. The majority impermissibly uses Keller v.

City of Spokane, 146 Wn.2d 237, 44 P.3d 845 (2002), as a broad broom,

sweeping the legal causation prong into the duty prong of the common law

negligence analysis. In this way, the majority relies on Keller's narrow

language about municipalities' duties to motorists to answer not only the

duty question but also sweep in the legal causation question, presuming that

the first necessarily answers the second.

Legal causation "is grounded in policy determinations as to how far

the consequences of a defendant's acts should extend." Crowe v. Gaston,

134 Wn.2d 509, 518, 951 P.2d 1118 (1998). It certainly cannot be a wise

policy of this state to make Washington taxpayers insurers on behalf of

criminal motorists.
Lowman v. Wilbur, et vir., et al., No. 86584-1
Dissent by J.M. Johnson, J.

1
I would preserve the court's "gatekeeper" function noted in Keller,

holding that a court may find that criminal acts break the causal chain and

thus are not the legal cause in a common law negligence action against a

municipality. I would accordingly affirm the Court of Appeals. On these

grounds, I respectfully dissent.

FACTS AND PROCEDURAL HISTORY

Nathan Lowman met Jennifer Wilbur at the Country Comer Bar and

Grill in Skagit County on the night of August 5, 2005. He admitted that they

both had been drinking that evening. Lowman also told a Washington State

Patrol (WSP) investigator that he had seen Wilbur drink at least two

cocktails that evening, and he stated in his complaint that Wilbur was

"apparently intoxicated" and unfit to operate a motor vehicle. Clerk's

Papers at 524-25. Despite this knowledge and his instinct to the contrary,

Lowman agreed to ride as Wilbur's passenger.

Wilbur began driving with Lowman along Satterlee Road, which was

a two-lane, curvy, country road near Anacortes, Washington. The posted

speed limit was 25 miles per hour, and there were signs to warn drivers of

1
"[T]he court still retains its gatekeeper function and may determine that a municipality's
actions were not the legal cause of the accident." Keller, 146 Wn.2d at 252.

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Lowman v. Wilbur, et vir., et al., No. 86584-1
Dissent by J.M. Johnson, J.

curves in the road. As Wilbur was driving down a steep hill and trying to

negotiate the turns in the roadway, she lost control of her vehicle, left the

road, and hit aPSE utility pole. The WSP estimated that Wilbur's car was

traveling, at a minimum, between 34 and 3 8 miles per hour upon impact.

Additionally, later testing showed that Wilbur had nearly twice the legal

limit of alcohol in her system, measuring 0.14. 2 Lowman sustained severe

injuries and permanent disfigurement to his right arm. Wilbur pleaded

guilty to vehicular assault under RCW 46.61.522(l)(c), a class B felony. In

addition to monetary penalties, the court sentenced Wilbur to three months

in jail, a year of community custody, and driving under influence/substance

abuse treatment and conditions.

Lowman then filed a negligence claim against PSE and Skagit County

for misplacement of the utility pole. The trial court granted PSE' s and

Skagit County's joint motion for summary judgment, dismissing Lowman's

claims against those parties. The court concluded that the alleged negligent

acts of PSE and Skagit County were not the legal cause of Lowman's

2
RCW 46.61.502(1)(a) provides that a person is guilty of driving while under the
influence if "the person has, within two hours after driving, an alcohol concentration of
0.08 or higher."

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Lowman v. Wilbur, et vir., et al., No. 86584-1
Dissent by J.M. Johnson, J.

mJunes. The Court of Appeals affirmed the trial court's order granting

summary judgment. As noted, I would affirm the Court of Appeals.

ANALYSIS

In order to recover in a common law negligence action in the State of

Washington, a plaintiff "must show (1) the existence of a duty to the

plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach

as the proximate cause of the injury." Crowe, 134 Wn.2d at 514.

"Washington law recognizes two elements to proximate cause: [c] ause in

fact and legal causation." Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77

(1985). Here, legal causation is the only element at issue because PSE and

Skagit County stipulated to the elements of duty, breach, resulting injury,

and cause in fact for the purpose of summary judgment only.

Legal causation "is grounded in policy determinations as to how far

the consequences of a defendant's acts should extend." Crowe, 134 Wn.2d

at 518. A determination of liability based on legal causation is a mixed

consideration of logic, common sense, justice, policy, and precedent in

deciding whether a defendant's breach of duty is too remote or insubstantial.

Hartley, 103 Wn.2d at 779, 784. Legal causation is generally a question of

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Lowman v. Wilbur, et vir., eta!., No. 86584-1
Dissent by J.M. Johnson, J.

law. Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 204, 15 P.3d

1283 (2001).

Keller v. City o(Spokane

The majority contends that Washington's law regarding legal

causation was substantially impacted when this court decided Keller, 146

Wn.2d at 23 7. In that case, we held that a municipality owes a duty to both

negligent and fault- free drivers, but we explicitly clarified that "the court

still retains its gatekeeper function and may determine that a municipality's

actions were not the legal cause of the accident." Jd. at 249, 252.

The majority fails to recognize that Keller's relevant holdings were

restricted to comparative fault and municipal duty. The case does not

provide support for collapsing the duty prong into the legal causation prong

of the common law negligence analysis, as the majority suggests. In fact,

the only time the case even mentions "legal cause" is to note that a legal

cause determination is made separate and apart from the legal duty

determination, preventing municipalities from becoming insurers of

negligent acts. I d. at 252. The wisdom of this language is made obvious in

this case. By making the duty analysis determinative of legal causation,

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Lowman v. Wilbur, et vir., et al., No. 86584-1
Dissent by J.M. Johnson, J.

municipalities-and by extension, taxpayers-become insurers of drivers'

own criminal behavior.

The majority quotes heavily from Schooley v. Pinch 's Deli Market,

Inc., 134 Wn.2d 468, 951 P.2d 749 (1998). See majority at 7. However, the

majority misses a key point made in the case:

[A] court should not conclude that the existence of a duty
automatically satisfies the requirement of legal causation. This
would nullify the legal causation element and along with it
decades of tort law. Legal causation is, among other things, a
concept that permits a court for sound policy reasons to limit
liability where duty and foreseeability concepts alone indicate
liability can arise.

Schooley, 134 Wn.2d at 479.

The majority makes two statements that indicate its insistence on

making a finding of duty also determinative of legal causation. First, "[i]f

Lowman's injuries were in fact caused by the placement of the utility pole

too close to the roadway, then they cannot be deemed too remote for

purposes of legal causation." Majority at 7. Second, "[i]f a jury concludes

that Lowman suffered injuries within the scope of the duty owed to

Lowman-i.e., that his injury was not too remote-then there is no basis to

foreclose liability as a matter of legal cause." Id. at 8. I fundamentally

disagree with both of these statements.

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Lowman v. Wilbur, et vir., et al., No. 86584-1
Dissent by J.M. Johnson, J.

Legal causation is itself a determination separate from the other

factors in the common law negligence analysis. Regardless of whether

Lowman's injuries were caused by the placement of the utility pole, 3 the

court has an obligation to define the scope of duty and draw the line for

liability. This legal causation analysis is based in part on policy

considerations, and the consequences of criminal behavior may be so remote .

as to justify foreclosure of a municipality's liability. This is a sound public

policy that prevents taxpayers from insuring against the consequences of

criminal behavior. If we embrace the policy set forth in the majority

opinion, this state is, in essence, incentivizing crime by removing some of

the financial risk associated with criminal behavior.

CONCLUSION

This court maintains a long tradition of embracing the following

principle: '"Given a choice between a rule that fosters individual

responsibility and one that forsakes personal accountability, we opt for

personal agency over dependency and embrace individual autonomy over

3
Based on the limited record, there is no showing that the county or utility company
could have even located the utility pole 10 feet off the road (likely outside the right-of-
way). For various reasons, including property lines and the character of the land along
Satterlee Road, this "clear zone" could have been an impossibility with respect to the
utility pole in question.

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Lowman v. Wilbur, et vir., et al., No. 86584-1
Dissent by J.M. Johnson, J.

paternalism."' Schooley, 134 Wn.2d at 491 (Sanders, J., dissenting)

(quoting Estate of Kelly v. Falin, 127 Wn.2d 31, 42, 896 P.2d 1245 (1995)).

In a sweeping move that defies our precedent, the majority takes the legal

causation determination out of the hands of the court in negligence actions

such as this one. Such a move will most certainly open this state's taxpayers

to liability based on the criminal acts of others. No longer will criminal

motorists such as Wilbur need to take responsibility for the consequences of

their actions. Instead, the taxpayers of this state will be the insurers against

harm caused by criminal behavior. Because I do not support foreclosing a

court's ability to determine that no legal cause is present in torts caused by

criminal action, I dissent.

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Lowman v. Wilbur, et vir., eta!., No. 86584-1
Dissent by J.M. Johnson, J.

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