¶19 (dissenting) — In my judgment, the trial court’s grant of a summary judgment in favor of the city of Tukwila should be affirmed. I reach that conclusion after reviewing the facts in the record and drawing inferences therefrom in the light most favorable to Jean Owen, the nonmoving party. This review has satisfied me that there is no question of material fact on the issue of whether Tukwila breached its duty to maintain the roadway in question in a manner that was reasonably safe for ordinary travel. Because the majority reaches an opposite conclusion, I dissent.
Alexander, C.J.¶20 Although Owen made general allegations regarding what she claims was the negligent design of South 180th Street and the lack of proper signage thereon, the central focus of her argument here revolved around the vague assertion that Tukwila was negligent in not making an effort to obtain installation of a signal preemption device to prevent traffic backups over the railroad tracks where the accident occurred that led to the deaths of Glenn and Margie Nelson. It was on this claim that a majority at Division One of the Court of Appeals determined that there is a material factual question.7 The problem with that conclusion is that there is no authority or precedent imposing such a duty on the part of a city. Furthermore, the evidence that Owen presented to support her assertion that a signal preemption device would be effective in clearing traffic from the railroad tracks during rush hour was insufficient to withstand a summary judgment dismissing her complaint.
*792¶21 According to the record, a signal preemption device is one that is automatically activated by an approaching train. When activated, it causes traffic lights at intersections in the vicinity of a railroad crossing to turn green. This has the intended effect of allowing traffic to move through the intersections and not become entrapped at a railroad crossing. The device is also designed to give an additional warning of an approaching train in the form of flashing lights at a street intersection that are activated 20 seconds before the train passes through the intersection. The Manual on Uniform Traffic Control Devices (2d ed. 1988) (MUTCD), which the majority acknowledges has been adopted by the Washington Department of Transportation, recommends that except under “unusual circumstances,” signal preemption devices should only be tied into traffic signals that are within 200 feet of a railroad crossing. Clerk’s Papers (CP) at 797. Because a signal preemption device gives only an approximate 20 second warning of an approaching train, the farther a traffic light is from railroad tracks, the less effective a signal preemption device will be.
¶22 This court has held that “bare assertions that a genuine material [factual] issue exists will not defeat a summary judgment motion in the absence of actual evidence.” Trimble v. Wash. State Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000). In regard to a signal preemption device, Owen relied entirely on the declaration of Dr. John Glennon, a civil engineer who consults on highway safety measures. Dr. Glennon stated that “[t]he subject railroad crossing has a high traffic volume that, because of nearby intersections, commonly queues over the railroad crossing. Because an approaching train does not pre-empt the nearby traffic signals, the probability of having vehicles trapped on the tracks with an approaching train is relatively high.” CP at 628. Dr. Glennon further indicated that South 180th Street is an extremely hazardous roadway that makes it an “unusual circumstance,” which “may” require the implementation of a signal preemption device. Id. at 360. He did not, however, indicate that Tukwila should have preempted any particular traffic light.
*793¶23 Even viewing Dr. Glennon’s declaration in the light most favorable to Owen, it cannot be said that the declaration raises a factual question about Tukwila’s failure to maintain its roadway in a safe condition or its duty to obtain installation of a signal preemption device at the South 180th Street intersection. The signal preemption device that Dr. Glennon referred to would control a traffic light that is located approximately 660 feet west of where the set of Union Pacific tracks cross South 180th Street. Id. at 557; see also id. at 786. Dr. Glennon’s mere speculation that Tukwila may have had an obligation to obtain installation of a signal preemption device at the road/track intersection pertinent to this case, which would be tied to a traffic signal marker located three times beyond the distance recommended by the MUTCD, does not establish a breach of duty by Tukwila.8
¶24 It is also significant that Tukwila lacked the authority to install a signal preemption device, even assuming that the railroad crossing in question presented an “unusual circumstance.” In that regard, it is clear that the obligation, if any, to install and operate a signal preemption device rests with the railroad company. It is not the municipality’s responsibility. See, e.g., RCW 47.36.050 (railroad company responsible for erecting and maintaining traffic devices in its right-of-way); City of Seattle v. Burlington N. R.R., 145 Wn.2d 661, 674, 41 P.3d 1169 (2002) (“The City’s ordinance that reserves to it the authority to control railroad activities that interfere with city traffic is subject to preemption under the [Interstate Commerce Commission Termination Act of 1995] and the [Federal Rail Safety Act of 1970].”).
*794¶25 While conceding that Tukwila did not have unilateral authority to install a signal preemption device at the road/track intersection, the majority dismisses the point. It relies on the provisions of RCW 81.53.261 for the proposition that Tukwila should have, at the very least, filed a written petition with the Washington Utilities and Transportation Commission, alleging that better warning devices were required for public safety at this crossing. Majority at 789 n.2. In my view, that conclusion is a stretch. A party should bear liability only for the breach of a duty it could fulfill. That party should not have liability for failing to convince another party to fulfill its duty. See RCW 81.53.261 (the Washington Utilities and Transportation Commission may order a railroad company to implement additional traffic control devices).
¶26 In sum, there is nothing in the record to show that Tukwila breached its duty to maintain its roadway in a reasonably safe manner for ordinary travel. Tukwila posted the signs and signals it was required to post and then some.9 While there is undoubtedly a potential of danger present at any railroad crossing, the record shows that a myriad of signs and devices regulated this crossing. Drivers approaching the Burlington Northern Santa Fe Railroad Company and Union Pacific railroad tracks from the west, the direction from which the Nelsons came, encounter several warnings including, in order: a large white ‘X” and “RR” on the pavement; a yellow sign containing a black ‘X” and the letters “RR”; a white crossbuck sign announcing “RAILROAD CROSSING”; a sign attached to the sign mast that states “2 TRACKS”; and a sign that commands “DO NOT STOP ON THE TRACKS.” CP at 555, 556. In addition, the railroad crossing has flashing light signals and gates, which are automatically activated by approaching trains. When the crossing gates come down, they prevent automobile traffic from proceeding onto the railroad tracks.
*795¶27 With the benefit of hindsight, one can always argue that more could have been done to prevent a tragic accident like the one that took the lives of Mr. and Mrs. Nelson. The question, though, is not could the city have done more. The question is: did it breach a duty? In my view it did not, and I would, therefore, reverse the Court of Appeals and affirm the summary judgment the trial court granted to Tukwila.
¶28 I, therefore, respectfully dissent.
Madsen, Bridge, and Fairhurst, JJ., concur with Alexander, C.J.
Reconsideration denied July 22, 2005.
At the Court of Appeals, it was the plaintiff’s principal contention that Tukwila should have separated the railroad crossing from vehicular traffic by means of an underpass. The majority and dissent at Division One of the Court of Appeals all agreed that this argument was without merit.
The dissenting judge at the Court of Appeals noted that “in James R. Loumiet & William G. Jungbauer, Train Accident Reconstruction and FELA and Railroad Litigation 186-87 (3d ed. 1998), [Dr. John] Glennon discusses signal preemption, and advocates preemption in situations where there is an actively controlled crossing within 75 feet of a signal. He does not suggest preemption at distances greater than those in the Manual on Uniform Traffic Control Devices (2d ed. 1988) (MUTCD). Loumiet & Jungbauer, supra, at 168.” Owen v. Burlington N. Santa Fe R.R., 114 Wn. App. 227, 242 n.30, 56 P.3d 1006 (2002) (Baker, J., dissenting).
It is notable that the railroad crossing at which the accident occurred is barely within the corporate limits of Tukwila. The westerly approach to the tracks is within the city of Renton.