Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TARA JEAN McMANUS,                          )       No. 66333-0-I
                                            )
                      Appellant,            )       DIVISION ONE
                                            )
          v.                                )
                                            )       UNPUBLISHED OPINION
STATE OF WASHINGTON,                        )
                                            )
                      Respondent,           )
                                            )
YONG KUN KIM,                               )
                                            )
                      Defendant.            )       FILED:  April 9, 2012

       Schindler, J.  --  In 1990, two-year-old Tara Jean McManus was seriously injured 

in a car accident that occurred at the intersection of State Route 99 (SR 99) and South 

Holden Street.  McManus appeals summary judgment dismissal of her claims against 

the Washington State Department of Transportation (WSDOT) alleging negligent 

design and inadequate signage at the intersection caused the accident.  Because the 

uncontroverted evidence establishes WSDOT met or exceeded design and signage 

requirements and the driver of the other car was the sole proximate cause of the rear-

end car accident, we affirm. 

                                            FACTS 

No. 66333-0-I/2

       In the late afternoon of August 25, 1990, Mark Zell was driving north on SR 99, 

heading toward the intersection of SR 99 and South Holden Street.  It was a clear, 

sunny day.  SR 99 is a highway maintained by the State of Washington.  Northbound 

SR 99 is a four-lane, limited access freeway with two northbound lanes and two 

southbound lanes.  The two northbound lanes gradually transition to a multilane arterial 

roadway at the South Holden Street intersection.  

        Zell said that he was traveling at the 55 miles per hour (m.p.h.) speed limit.  

Approximately three miles before the intersection of SR 99 and South Holden Street, a 

brown Mercedes Benz drove past Zell in the left lane.  Zell said the Mercedes Benz 

was traveling at approximately 65 to 70 m.p.h.  Moments later, the Mercedes suddenly

slowed and was traveling at approximately 35 m.p.h.  Zell looked over as he drove past

the Mercedes and saw the driver, later identified as Yong Kun Kim, slumped forward 

with his head hanging down.

       There are a number of traffic control signs and devices before the intersection of

SR 99 and South Holden Street, including: two "Speed Zone Ahead" signs posted on 

both sides of SR 99 approximately 1,530 feet before the intersection at milepost (MP) 

25.77; two 35 m.p.h. speed limit signs posted approximately 790 feet before the 

intersection at MP 25.91; two sets of raised rumble-strip pavement markers beginning 

before and after the posted 35 m.p.h. speed limit signs providing a visual, audible, and 

physical warning of the change from the two-lane highway to the multilane arterial at 

the intersection; and an "Arterial Speed Unless Otherwise Posted - 30 MPH" sign 

posted approximately 420 feet before the intersection at MP 25.98.

                                               2 

No. 66333-0-I/3

       The roadway approaching the intersection is straight and flat.  There are no 

sight distance restrictions for approximately one half mile in advance of the traffic 

signal.  At the intersection, there are four northbound lanes with two left-turn lanes and 

two lanes that continue straight, and a conventional traffic signal that regulates the flow 

of traffic for the four northbound lanes.  The intersection and stoplight are visible from 

at least one quarter mile, or 1,320 feet.  

       As Zell approached the intersection, he slowed to the posted speed of 35 m.p.h.  

The traffic light at the intersection was red.  Zell stopped his car and waited for the light 

to change. Zell saw a Camaro stopped in the far left turn lane and another car stopped 

in the left turn lane nearest to Zell.  

       As the light turned green, Zell looked in his rearview mirror and saw the 

Mercedes Benz speeding toward the intersection traveling at approximately 60 m.p.h.  

Zell said the Mercedes skidded and then slammed into the Camaro, crushing the 

backend of the car.  Two-year-old Tara Jean McManus was strapped into a car seat in 

the back of the Camaro.  

       Zell immediately contacted the police and requested an ambulance, and then got 

out of his car.  Zell said that when he talked to Kim, Kim seemed confused. According 

to the police report, Kim said that he did "not know what happened, or recall events 

leading up to the collision." The police report also states that Kim was " 'erratically 

driving' . . . and apparently did not plan to stop."  Kim later pleaded guilty to negligent 
driving.1

       1 See Seattle Municipal Code 11.58.005.

                                               3 

No. 66333-0-I/4

Lawsuit

       On May 28, 2009, McManus filed an amended complaint for personal injury 
damages against Kim and WSDOT.2  McManus alleged Kim's negligence as well as the 

failure of WSDOT to properly erect and maintain traffic control devices at the 

intersection caused the accident.

       Trial was scheduled to begin on November 8, 2010 with a discovery cutoff date 

of September 20, 2010.  In May, McManus designated a number of photographs and 

medical records under ER 904. WSDOT then requested that McManus enter into an

authorization and stipulation for the release of her medical records. McManus refused 

to sign the authorization form.

Motion To Continue and To Compel

       In July 2010, WSDOT filed a motion to continue the trial date, to compel

compliance with the discovery rules, and for sanctions.  WSDOT argued that McManus

provided inadequate responses to interrogatories and requests for production.  

WSDOT also asserted that her attorney refused to advise McManus to release her

medical records unless WSDOT stipulated to the admissibility of the designated ER 
904 records as part of "an inappropriate quid pro quo arrangement."3  

       The trial court granted the motion to continue the trial date and ordered

McManus to "release medical, educational, and employment records because it is

discoverable, she has waived privilege thereto by [bringing] this lawsuit, and because 

withholding said information has no valid basis in . . . law." The court reserved ruling 

       2 Kim settled with McManus and is not a party to this appeal. 

       3 (Italics omitted.)

                                               4 

No. 66333-0-I/5

on the request for sanctions until the conclusion of the case. McManus signed 
authorization forms drafted by her attorney for the release of her records to WSDOT.4

Summary Judgment

       WSDOT filed a motion for summary judgment.  WSDOT asserted that the 

intersection at SR 99 and South Holden Street was not dangerous or misleading, the 

signage before and at the intersection met or exceeded highway design requirements, 

and Kim's negligence was the sole proximate cause of the accident. In support, 

WSDOT submitted the declaration of WSDOT Northwest Region Traffic Engineer Mark 

P. Leth. Leth states that the design and signage at the intersection meet or exceed the 

requirements of the "Manual on Uniform Traffic Control Devices" (MUTCD) and 

WSDOT standards and guidelines. Leth also states that "no other supplementary 

warning signs are required by the MUTCD related to the traffic signal." In his 

declaration, Leth describes in detail the design and traffic control devices installed by 

WSDOT, including the striping, the posted speed-limit signs, and the rumble strips or

raised circular discs.  Leth states that although the MUTCD did not require the rumble 

strips, WSDOT used rumble strips at this particular location to provide an additional 

enhancement.  

       In opposition to the motion for summary judgment, McManus presented no

expert testimony to rebut Leth's testimony.  Instead, McManus's attorney submitted a 

declaration with excerpts of the MUTCD obtained from the Internet; as well as excerpts 

from the highway design manual of the American Association of State Highway and 

       4 However, McManus filed a motion for a "qualified protective order" to maintain her "federal 
privacy rights." The court granted the motion.  
                                               5 

No. 66333-0-I/6

Transportation Officials (AASHTO); driver handbooks published by the states of 

Florida, Nevada, and North Carolina; the "Freeway Signing Handbook" of the Texas 

Department of Transportation; and photographs of an interstate highway in Duluth, 
Minnesota.5 Based on this information, McManus argued that the SR 99 and South 

Holden Street intersection was an inherently dangerous or misleading condition, and

claimed that a warning sign with beacons would have prevented the collision.

       In reply, WSDOT moved to strike the inadmissible documents McManus relied 

on, as well as the attorney's "speculative" and "conclusory" opinions on "matters which 

require the scientific, technical, and specialized knowledge of an experienced engineer 

in the business of making and maintaining roads."  WSDOT also submitted a second 

declaration from Leth, and the declaration of another WSDOT highway engineer Terry 

Berends, to argue that the uncontroverted expert testimony showed it had met or 

exceeded all relevant highway design, engineering, operation, and maintenance 

standards.  

       In his declaration, Berends states that WSDOT is bound by "WSDOT's Design 

Manual," not AASHTO standards or guidelines adopted by foreign jurisdictions, and 
that WSDOT met or exceeded WSDOT Design Manual requirements.6                   

       In his supplemental declaration, Leth addresses McManus's argument that the 

rumble strips and the failure to install a flashing light caused the accident.  Leth states 

that the MUTCD did not require WSDOT to install rumble strips or a flashing yellow 

light. The declaration states, in pertinent part:

       5 The attorney obtained the excerpts from the Florida, Nevada, North Carolina, and Texas 
publications and the photographs of Interstate 35 in Minnesota from the Internet.    
       6 Berends also states that WSDOT met or exceeded AASHTO standards.

                                               6 

No. 66333-0-I/7

              6.      On August 25, 1990, both sets of transverse rumble strips 
       incorporated raised pavement markers (circular discs).  They were not 
       eroded, and they were appropriately functional to provide Mr. Kim with an 
       audible, visual, and physical warning of the aforementioned roadway 
       transition.
              I have reviewed the Plaintiff's response, wherein she portrays the 
       location of the rumble strips as closer to the traffic signal than the 
       recommended decision sight distance.  The transverse rumble strips were 
       intended to be supplementary to the regulatory "35 MPH" signage, further 
       emphasizing the reduced speed zone  --  although the State of Washington 
       was not required to have any rumble strips, these particular sets were 
       placed at these locations for additional enhancement.
              7.      The transition from freeway to arterial roadway on the 
       roadway at issue was marked by numerous warning signs and devices 
       that provided drivers with visual, audible, and physical warnings of the 
       transition; a list of these devices are outlined in my August 2010 
       declaration, as well as the additional sign noted in paragraph 2 of this 
       declaration.  The numerous regulatory and guide signs and other traffic 
       control devices along SR 99 leading up to the intersection with South 
       Holden St. met or exceeded every standard that the State of Washington 
       was bound by.
              8.      None of the standards that bound the State of Washington 
       required additional signage or flashing yellow amber lights to alert 
       motorists of the signalized intersection at South Holden Street.  Since the 
       northbound SR 99 approach to South Holden Street is a long, straight 
       roadway with no sight restrictions in excess of ½-mile in advance of the 
       intersection, traffic signal visibility, stopping sight distance and decision 
       sight distance are all met and exceeded at this location for the traffic 
       control devices in place at the time of the subject collision and in 
       accordance with applicable standards.  The Plaintiff states that the 1988 
       MUTCD requires that "potentially hazardous conditions" be marked in 
       advance with yellow warning signs.  This is not an accurate 
       representation of the MUTCD guidance.  As noted previously, and based 
       upon my education and training, all applicable traffic signal visibility and 
       sight distance requirements were met or exceeded, and such additional 
       warning devices were clearly not necessary.

       At the hearing on the summary judgment motion, the court denied the motion

made by WSDOT to strike the documents McManus relied on, but makes clear that it 
did not consider factual assertions that were not supported by evidence.7  The trial 

       7 WSDOT does not appeal the denial of its motion to strike.

                                               7 

No. 66333-0-I/8

court also addressed the absence of any expert witness testimony submitted by 

McManus.

       In this context [the plaintiff has] to demonstrate that there was some type 
       of dangerous or misleading condition. 
              . . . .
              . . . I would look for . . . an expert witness who would say you know, 
       when we design highways, this is the way it needs to be, and here's why, 
       this is what standards are out there, there are a lot of standards, what 
       standards the State should have followed in order to make this road safe, 
       okay.  But I don't have any expert telling me that here from the plaintiff's 
       perspective . . . .
              [The plaintiff's attorney] made . . . that argument[, b]ut . . . the kind 
       of witness I need to make that argument and to make that kind of a 
       demonstration would be someone who's an expert in the field of designing 
       highways.  And I don't have that kind of evidence here.
              What I have is evidence that suggests that the road was safe.

       The court granted the motion for summary judgment on the grounds that 

McManus submitted insufficient evidence to establish breach or that WSDOT was the 

"legal cause, or the cause in-fact of this accident."  The order granting summary 

judgment states, in pertinent part:

              The State's motion to strike . . . the evidence was denied, but 
       objections to the evidence of plaintiff goes to the weight.
              The Court did not consider factual assertions that were not 
       supported by evidence submitted in support of [plaintiff]'s response.
              Dismissal based upon the finding that there . . . was insufficient 
       evidence presented by the plaintiff to satisfy the element of breach, or 
       that . . . the State was the legal cause, or the cause in-fact of this 
       accident.

                                          ANALYSIS

Standard of Review

       McManus argues the trial court erred in granting summary judgment dismissal of 

her claims against WSDOT alleging negligent design and inadequate signage caused 

                                               8 

No. 66333-0-I/9

the accident.

       We review summary judgment de novo.  Hartley v. State, 103 Wn.2d 768, 774, 

698 P.2d 77 (1985). Summary judgment is appropriate when there is no genuine issue 

of material fact and the moving party is entitled to summary judgment as a matter of 

law.  CR 56(c).

       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 Pharms., Inc., 112 

Wn.2d 216, 225, 770 P.2d 182 (1989).  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 Wn.2d at 225. 

       While we construe all evidence and reasonable inferences in the light most 

favorable to the nonmoving party, if the nonmoving party " '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, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. 

Ct. 2548, 91 L. Ed. 2d 265 (1986)); Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 

P.3d 1068 (2002).  The nonmoving party may not rely on speculation or "mere 

allegations, denials, opinions, or conclusory statements" to establish a genuine issue of 

material fact.  Int'l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 

744, 87 P.3d 774 (2004) (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 

355, 359, 753 P.2d 517 (1988)).

Negligent Design and Signage Claim

                                               9 

No. 66333-0-I/10

       To establish negligence, McManus must prove (1) a duty owed by the defendant 

to the plaintiff, (2) breach of that duty, and (3) injury proximately caused by the breach. 

Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992).

       There is no dispute that WSDOT has a duty to exercise ordinary care to "build 

and maintain its roadways in a condition that is reasonably safe for ordinary travel," and 

"to eliminate an inherently dangerous or misleading condition."  Keller v. City of 

Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002); Owen v. Burlington N. Santa Fe 

R.R. Co., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005).

       McManus claims that the intersection of SR 99 and South Holden Street was not 

reasonably safe for ordinary travel because the traffic signal was a dangerous or 

misleading condition.  McManus asserts that WSDOT breached its duty to take 

corrective action to safeguard drivers because it did not install a yellow warning sign,

and that it would have prevented the accident. McManus also asserts that because 

freeways typically do not have traffic signals, the traffic light at the intersection was a 

"potentially hazardous condition" under the MUTCD, and that WSDOT should have 

installed one or more yellow warning signs before the intersection.

       The MUTCD states that the determination of the design and signage made 
requires engineering expertise.8

       [W]hile this Manual provides standards for design and application of 
       traffic control devices, the Manual is not a substitute for engineering 
       judgment.  It is the intent that the provisions of this Manual be standards 
       for traffic control devices installation, but not a legal requirement for 
       installation.
              Qualified engineers are needed to exercise the engineering 
       judgment inherent in the selection of traffic control devices, just as they 
       are needed to locate and design the roads and streets which the devices 

       8 WSDOT has adopted the MUTCD.  WAC 468 -- 95 -- 010.  

                                              10 

No. 66333-0-I/11

       complement.

U.S. Dep't of Transp., Fed. Highway Admin., MUTCD § 1A-4 (1978).

       Here, uncontroverted expert testimony establishes that the intersection of SR 99 

and South Holden Street met or exceeded the MUTCD and WSDOT roadway design 

and signage standards.  The unrebutted testimony of WSDOT Traffic Engineer Leth 

                                              11 

No. 66333-0-I/12

states, in pertinent part:

       Striping and pavement markings along the entire portion of the roadway 
       at issue are consistent with the Manual on Uniform Traffic Control 
       Devices (MUTCD) and WSDOT standards and guidance at the time of 
       installation.
              . . . .
                      c.     A regulatory 55 Mile Per Hour (MPH) speed limit sign 
       is posted at approximately MP 25.36 outside the paved right shoulder of 
       the highway.
                      d.     Two regulatory "Speed Zone Ahead" signs are posted 
       at approximately MP 25.77, one on either side of the paved roadway of 
       SR 99.  The . . . MUTCD stated in part that this sign is used "to inform the 
       motorist of a reduced speed zone when an advance notice is needed to 
       comply with the speed limit posted ahead." . . .
                      e.     Two regulatory 35 MPH speed limit signs are posted 
       at MP 25.91, one on either side of the paved roadway.
                      f.     Also warning motorists of the change in speed limit 
       (from 55 MPH to 35 MPH) are transverse rumble strips across each lane 
       in advance of and following the posted 35 mph speed limit signs (two sets 
       of rumble strips), supplementing reduced speed limit signs.  These rumble 
       strips are raised pavement markings/markers that provide motorists with a 
       visual, audible & physical (motorists will feel the bump when driving over 
       the raised pavement markers) warning of a changed condition ahead.
                      g.     A regulatory "Arterial Speed Unless Otherwise 
       Posted  --  30 MPH" sign is posted at approximately MP 25.98 outside the 
       paved right shoulder of SR 99.  This is a regulatory sign that notes the 
       City of Seattle's ordinance regarding regulatory speed limits.
                      i. [sic] The SR 99 and South Holden Street intersection at 
       approximately MP 26.06 is controlled by a conventional traffic signal.  The 
       traffic signal regulates flow of four northbound lanes  --  two left turn lanes 
       and two that continue straight through the intersection.  The roadway 
       transition adding the two left turn lanes begins at approximately MP 
       25.83.  A longitudinal solid wide gore stripe separates the two left turn 
       lanes from the two through lanes beginning at approximately MP 25.94, 
       roughly 500 feet from the intersection stop line at approximate MP 26.04.

       Leth also states that the signs and other traffic control devices "in place at the 

time of the collision that conveyed clear and simple meaning, commanded attention 

and respect."

              As is discussed in section 5, supra, numerous signs and other 
       traffic control devices were in place at the time of the collision that 

                                              12 

No. 66333-0-I/13

       conveyed clear and simple meaning, commanded attention and respect of 
       the motorists, and provided adequate time for response to permanent 
       changes in the highway alignment and controls.  Specifically, the traffic 
       control devices in place clearly alerted motorists in advance of the 
       approach to an arterial intersection with a reduced speed zone and 
       transverse rumble strips.

       McManus presented no expert testimony to rebut the testimony of engineering 

experts Leth or Berends.  Instead, McManus relied exclusively on inadmissible or 

unauthenticated documents from the Internet to argue that the intersection of SR 99 

and South Holden Street was an inherently dangerous condition.  McManus did not

carry her burden on summary judgment to " 'make a showing sufficient' " that WSDOT

breached its duty or the standard of care. Young, 112 Wn.2d at 225 (quoting Celotex

477 U.S. at 322); Jones, 146 Wn.2d at 300.

Proximate Cause

       We also conclude McManus did not meet her burden to show that WSDOT was 

the proximate cause of the accident. 

       There are two elements of proximate cause: cause in fact and legal causation.  

Hartley, 103 Wn.2d at 777-79.  Cause in fact refers to the "but for" consequences of an 

act or the cause which in a direct sequence, unbroken by any new independent cause, 

produces the injury complained of and without which such injury would not have 

happened.  Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 203, 15 P.3d 1283 

(2001).  While the question of cause in fact is generally left to the jury, when 

reasonable minds could reach but one conclusion, questions of fact may be determined 

as a matter of law.  Kim, 143 Wn.2d at 203.  Legal causation focuses on whether the 

connection between the act and the result is too remote or inconsequential to impose 

                                              13 

No. 66333-0-I/14

liability.  Hartley, 103 Wn.2d at 779. Proximate cause must be based on more than 

mere conjecture or speculation.  Miller v. Likins, 109 Wn. App. 140, 145, 34 P.3d 835 

(2001).  The plaintiff must establish "more than that the government's breach of duty 
might have caused the injury."  Miller, 109 Wn. App. at 145.9

       McManus argues that the 72-feet-long skid marks demonstrate that earlier 

warning signs or devices would have prevented the collision. But the record 

establishes that Kim did not slow down at any point before reaching the intersection.  

The undisputed testimony shows that moments before the accident, Kim was driving 

erratically and slumped in his seat with his head hanging down.  According to the police 

report, Kim said that "he does not know what happened, or recall events leading up to 

the collision . . . and apparently did not plan to stop."  On this record, WSDOT was 

neither the cause in fact nor the legal cause of the accident.

Motion To Compel

       McManus argues that the trial court erred in granting the motion to compel and 

requiring her to sign a release for medical records in violation of "medical privacy rights 

established by state and federal law."  "[D]ecisions under CR 37 require the exercise of 

judicial discretion that will not be disturbed on appeal except upon a clear showing of 

abuse of discretion." Eugster v. City of Spokane, 121 Wn. App. 799, 815, 91 P.3d 117 

(2004).  A trial court abuses its discretion when its decision is manifestly unreasonable 

or based on untenable grounds. Ryan v. State, 112 Wn. App. 896, 899 -- 900, 51 P.3d 

175 (2002).  

       The court did not abuse its discretion in ordering McManus to release her 

       9 (Emphasis in original.)

                                              14 

No. 66333-0-I/15

medical, educational, and employment records.  Because McManus signed the release 

forms drafted by her attorney, we need not address the argument that the release 
violated her rights to privacy under state and federal law.10  

       We affirm summary judgment dismissal of the claims against WSDOT.

WE CONCUR:

       10 We note that the court granted McManus's motion for an order to limit use of the medical 
records as provided under federal privacy law.  
                                              15