VJ

- L• • i J j \
. . t '-

IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON JEFFREY BURKE and KIMBERLY BURKE, a married couple, Appellants,

v. DALYNNE SINGLETON, as Personal Representative ofthe ESTATE OF CHARLES ELFRINK-THOMPSON, deceased, and THE CITY OF SEATTLE, a municipal corporation, and JOHN DOES and JANE DOES 1 through 10, inclusive, Respondents. No. 72858-0-I DIVISION ONE

UNPUBLISHED OPINION

FILED: January 19, 2016 Leach, J. — Jeffrey and Kimberley Burke appeal the trial court's summary 

### dismissal of their negligence suit againstthe City ofSeattle and the estate of its deceased employee Charles Elfrink-Thompson (collectively City). Jeffrey Burke suffered injurieswhen a truck driven by Elfrink-Thompson crossed the centerline and struck Jeffrey's1 van while rounding a curve inthe opposite direction. Elfrink

### Thompson suffered a traumatic braininjuryand died the next day. The Burkes offerthree reasons for reversing the trial court: first, res ipsa 

### loquitursupplies an inference of negligence inthiscase; second, the testimony of their expert witness establishes Elfrink-Thompson's negligence as the cause of For clarity, we refer to Mr. Burke individuallyby his firstname.NO. 72858-0-1 / 2

the collision; and third, for the first time in their reply brief, Elfrink-Thompson's 

### undisputed violation of traffic laws provides evidence of negligence, precluding summary judgment. The City disputes these claims and also asserts sudden incapacity as an alternative reason to affirmthe trial court. Much of the parties' briefing addresses res ipsa loquitur, but this case 

### does not involve any "peculiar and exceptional" facts to which the doctrine properly applies. We reject res ipsa loquituras a basis for reversal. The Burkes contend the trial court erred by excluding testimony from their accident reconstructionist, Steve Harbinson, which demonstrated that Elfrink

### Thompson probably caused the accidentbecause he was speeding ordistracted. Because Harbinson applied his expertise as an accident reconstructionist to the evidence to reach this conclusion, the trial court abused its discretion in excluding Harbinson's testimony. 

### Normally, this court declines to considerarguments raised forthefirst time 

### in a reply brief. We do so here because the ends ofjustice require it. Both 

### Jeffrey's testimony and that of the accident investigator showed that ElfrinkThompson violated traffic laws before and during the accident. Although Washington has eliminated negligence per se, evidence of a statutory violation still provides evidence of negligence. Therefore, the Burkes demonstrated a genuine issue of material fact as to breach preventing summaryjudgment.
-2-NO. 72858-0-1 / 3 Finally, the City contends ithas a complete defense of sudden incapacity based on testimony that Elfrink-Thompson likely suffered a mild heart attackjust before the accident. But because testimony from the Burkes' expert establishes
a genuine issue ofmaterial fact, we disagree. We reverse and remand for further proceedings. FACTS On April 21, 2010, a truck driven by Charles Elfrink-Thompson collided with a van driven by Jeffrey Burke on Olsen Place SW inWest Seattle. ElfrinkThompson lost control of his vehicle, which rotated as itdrifted across the center line. The City-owned truck appeared to be "fishtailing" on wet pavement. Jeffrey
was unable to avoid the truck, which collided with his van. Elfrink-Thompson suffered a traumatic brain injury and died the next day. The City concedes that Elfrink-Thompson was a City employee acting within the course and scope of his employment. The Seattle Police Department Traffic Collision Investigation Squad (TCIS) investigated the collision. It found signs consistent with the above account: a 41-foot-long tire mark running from Elfrink-Thompson's lane, crossing the center line, and ending where the vehicles came to rest, and a scuff mark where Elfrink-Thompson lost control ofthe truck. But the TCIS detectives could notdetermine the reason Elfrink-Thompson lostcontrol. The truck's sensing andNO. 72858-0-1 / 4 diagnostic module did not record any data on the truck's braking and throttle functions and so did not indicate the truck's speed immediately before impact. No one saw Elfrink-Thompson's behavior before the collision. A forensic examination showed his cell phone was not in use, and a toxicology report came up negative for drugs and alcohol. A mechanic found no defects in the truck's brakes, tires, suspension, orsteering. The Burkes obtained the opinion ofan expert, Steve Harbinson, aboutthe
causes of the accident. Harbinson is a police officer and accident reconstructionist for the Edmonds Police Department. Harbinson reviewed documents on the crash and statements by Jeffrey. From this review and his experience, he concluded that Elfrink-Thompson probably lost control ofthe truck because he was distracted or driving too fast. 

### The City offered testimony from Carol Buchter, a cardiologist who reviewed the accident records and Elfrink-Thompson's medical records and 

### autopsy report. Dr. Buchter opined that these records indicated ElfrinkThompson had suffered a myocardial injury by the time he died. Dr. Buchter concluded that Elfrink-Thompson probably lost control of the truck after a myocardial infarction rendered him unconscious. 

### In response, the Burkes submitted a declaration by Marshall Corson, a cardiologist at Harborview Medical Center (HMC), where Elfrink-Thompson was -4-NO. 72858-0-1 / 5
treated. Corson "check-read" Elfrink-Thompson's electrocardiogram (ECG) 

### report inthe course ofchecking all 100 or so reports generated by HMC's ECG machines that day. Corson had no contactwith Elfrink-Thompson or the trauma team treating him. After reviewing Elfrink-Thompson's medical records, Dr. Buchter's declaration, and the police collision report, Dr. Corson concluded that Elfrink-Thompson likely did not suffer a myocardial infarction before the crash and that his traumatic brain injury probably explained the data Dr. Buchter relied

on. 

### The trial court granted the City's motion for summaryjudgment, and the Burkes appeal. STANDARD OF REVIEW 

### An appeal of a summaryjudgment presents a question of law this court 

### reviews de novo.2 Summaryjudgmentis appropriate ifthere is no genuine issue 

### of material fact and the moving party is entitled to judgment as a matter oflaw.3 We view facts in the light most favorable to the nonmovingparty.4 The purpose ofsummaryjudgmentis not to cut litigants offfrom their right of trial by jury but to 

### determine ifthey really have evidenceto offer at trial.5 Whetherres ipsa loquitur

2Osborn v. Mason County. 157Wn.2d 18, 22, 134 P.3d 197 (2006). 3CR 56(c); Osborn. 157Wn.2d at 22. 4 Osborn. 157 Wn.2d at 22. 5 Keck v. Collins. 184 Wn.2d 358, 369, 357 P.3d 1080 (2015) (quoting Preston v. Duncan. 55 Wn.2d 678, 683, 349 P.2d 605 (1960)). -5-NO. 72858-0-1 / 6 

### applies to a particularcase also presents a question of law we review de novo.6 We review trial court rulings on the admissibility ofexpert testimony for abuse of discretion.7 Normally, we do not consider issues raised and argued for the firsttime in 

### a reply brief.8 Courts follow this practice out offairness to the respondent, who 

### has no opportunity to argue inresponse.9 But this court may review an issuefirst raised in the reply brief if"'the ends ofjustice'" so require.10 Becausethe briefing in this case failed to give adequate attention to a decisive issue and because the
numerous fact disputes make summaryjudgment particularly inappropriate here, 

### the ends ofjustice compel us to consider an argument the Burkes raise for the first time intheir reply. We asked the parties for oral argument inpartto give the City an opportunityto address that argument. ANALYSIS 

### The City had the burden of showing no genuine issue of material fact existed as to some elementofthe Burkes' negligence case. Negligence has four

6Pacheco v. Ames. 149Wn.2d 431, 436, 69 P.3d 324 (2003). 7Miller v. Likins. 109Wn. App. 140, 147, 34 P.3d 835 (2001). 8Ainsworth v. Progressive Cas. Ins. Co.. 180 Wn. App. 52, 78 n.20, 322 

### P.3d 6 (2014); In re Marriage ofSacco. 114 Wn.2d 1, 5, 784 P.2d 1266 (1990); RAP 10.3(c). 9City ofSpokane v. White. 102Wn. App. 955, 963, 10 P.3d 1095 (2000). 

### 10 State v. Haberman. 105 Wn. App. 926, 933, 22 P.3d 264 (2001); RAP 1.2(c). -6-NO. 72858-0-1 / 7


### elements: duty, breach, causation, and injury.11 The City contends that the Burkes failed to presentevidence sufficient to create a genuine issue of material fact as to breach. Violation ofTraffic Laws as Evidence ofNegligence 

### The Burkes contend forthe first time in their reply that Elfrink-Thompson's violation of traffic laws by swerving into Jeffrey's lane provides evidence of negligence sufficient to preclude summaryjudgment. As discussed above, we 

### considerthis argument because declining to do so would denyjusticeto a needy 

### party.12 "Abreach of a duty imposed by statute, ordinance, or administrative rule 

### shall not be considered negligence per se, but may be considered bythe trier of 

### fact as evidence of negligence."13 Washington traffic laws require that "[a] vehicle shall be driven as nearly as practicable entirely within a single lane" and 

### may not be driven inthe leftlane in a no-passing zone.14 Jeffrey testified that he saw Elfrink-Thompson's truck fishtail and swerve into his lane. The collision itself occurred in Jeffrey's lane. Viewed in the light
most favorable to the Burkes, this evidence would establish that Elfrink
### 11 Keller v. CityofSpokane. 146 Wn.2d 237, 242, 44 P.3d 845 (2002). 12 RAP 1.2(c). 13 RCW 5.40.050; see Pettit v. Dwoskin. 116 Wn. App. 466, 475, 68 P.3d 1088(2003). 14 RCW46.61.140(1), .130. -7-NO. 72858-0-1 / 8 

### Thompson breached a duty underWashington traffic laws. This breach "may be 

### considered by the trier of fact as evidence ofnegligence."15 The City contends that Mathis v. Amnions16 supports summary judgment despite the evidence that Elfrink-Thompson violated traffic laws. In Mathis. Division Two upheld the trial court's entry ofjudgment on a jury's verdict that a 

### tractor driverwas not negligent despite violating a statute that required flashing 

### hazard lights.17 Mathisshows onlythatevidence of a statutory violation does not 

### prove negligence as a matter of law.18 It can defeat a motion for summary judgment where the question is notifthe violation shows negligence as a matter of law but instead whether a genuine issue of material fact exists about 

### negligence. Evidence ofElfrink-Thompson's statutory violation is evidence, not complete proof, of his negligence.19 This is all the Burkes needed to produce at 

### the summary judgment stage. The trial court thus erred in granting the City summaryjudgment.

15RCW 5.40.050. 

### 16 84 Wn. App. 411, 928 P.2d431 (1996). 17 Mathis. 84Wn. App. at419-20. 

### 18TheCitycorrectlypoints out that the legislature abolished negligence 

### per se in 1986. Hansenv. Friend. 118Wn.2d476, 483, 824 P.2d 483(1992). 19 See RCW5.40.050. "Proofis"[t]heestablishmentor refutation of an 

### allegedfact byevidence." Black'sLawDictionary 1409(10thed.2014). -8-NO. 72858-0-1 / 9

Res Ipsa Loquitur The parties devote much of their briefing to res ipsa loquitur. But this is 

### not a "'peculiar and exceptional case[]'" to which res ipsa loquiturapplies.20 Res ipsa loquitur allows a plaintiff to circumstantially establish a prima 

### facie case ofnegligence by the defendantwithout further direct proof.21 It spares the plaintiff from proving specific acts of negligence and shifts the burden to the 

### defendant to provide an explanation.22 Courts apply res ipsa loquitur "'sparingly... in peculiar and exceptional cases, and only where the facts and 

### the demands of justice make its applicationessential.'"23 Res ipsa loquitur applies where the party promoting it establishes three 

### elements: (1) the occurrence producing the injurywas of a kind that ordinarily does not occur in the absence of negligence, (2) the injury was caused by an 

### agency or instrumentality withinthe exclusive control of the defendant, and (3) the injury-causing occurrence was not due to any contribution of the injured 

### party.24 If any of these elements is missing, a presumption of negligence is
20 See The-Anh Nguyen v. City of Seattle. 179 Wn. App. 155, 173, 317 

### P.3d 518 (2014) (alteration in original) (internal quotation marks omitted) (quoting Curtis v. Lien. 169Wn.2d 884, 889, 239 P.3d 1078 (2010)). 21 Curtis. 169Wn.2d at 894 (quoting Pacheco. 149Wn.2d at440-41). 22 Curtis. 169Wn.2dat894. 

### 23 Curtis. 169 Wn.2d at 889 (internal quotation marks omitted) (quoting Tinderv. Nordstrom. Inc.. 84 Wn. App. 787, 792, 929 P.2d 1209 (1997)). 

### 24 Pacheco. 149 Wn.2d at 436-37 (quoting Zukowskv v. Brown. 79 Wn.2d 586, 593, 488 P.2d 269 (1971)). -9-NO. 72858-0-1/10

unwarranted. The second and third elements are not contested here: the City 

### concedes that Elfrink-Thompson had exclusive control of the truck and does not contend thatJeffreywas atfault. Thefirst elementcan be met inthree ways: 

### "(1) When the act causing the injury is so palpably negligent thatit may be inferred as a matter oflaw, Le., leaving foreign objects, sponges, scissors, etc., in the body, or amputation of a wrong member; (2) when the general experience and observation of mankind teaches that the result would not be expected without 

### negligence; and (3) when proof by experts in an esoteric field creates an inferencethatnegligencecaused theinjuries."[25] The Burkes do not show the presence of any ofthesefactors. First, a car 

### accident is not "sopalpably negligentthatit may be inferred as a matteroflaw" 

### like leaving a sponge in a patient oramputating thewrong leg.26 Rather, a plaintiff suing for negligence in a car accident still must prove duty, breach, causation, and injury.27 Second, the Burkes cite no case holding that in the 

### "generalexperienceandobservationofmankind" adriverdoesnotlosecontrolof hisvehiclewithoutnegligence. Giventheunfortunatefrequency of caraccidents, we decline to do so here. And third, car accidents are not "anesotericfield" such 

### thatexpert testimony would create an inference ofnegligence. Including car 25 Pacheco. 149 Wn.2d at 438-39 (internal quotation marks omitted) (quotingZukowskv. 79 Wn.2d at 595). 26 see Cho v. City of Seattle, 185 Wn. App. 10, 16, 341 P.3d 309 (2014) 

### ("Thefactthatanaccidentoccurreddoesnot, byitself, necessarilygiveriseto an inferenceofnegligence."), reviewdenied. 183Wn.2d 1007(2015). 27 Cho. 185Wn. App. at 16. -10-NO. 72858-0-1/11


### accidents inthat category would make the narrow qualifier "esoteric" effectively meaningless. The Burkes' Accident Reconstructionist The Burkes also challenge the trial court's exclusion oftheir expert Steve 

### Harbinson's testimony that Elfrink-Thompson was likely speeding or distracted when he crashed. Harbinson based his opinion on a scaled diagram of the collision scene, the photographs taken immediately after the crash, his experience, and Jeffrey's observations. He admitted having seen no physical evidence that Elfrink-Thompson lost control because he was distracted or speeding. The trial court excluded Harbinson's testimony as speculative and lacking an adequate factual basis. This court upheld exclusions of testimony from plaintiffs' experts as 

### speculative in Cho v. City of Seattle28 and Millerv. Likins.29 In Cho. the experts indicated that had the city installed a pedestrian island, the plaintiffwould have stopped and waited for traffic to proceed before attempting to cross the street and that had the city installed a traffic light, the drunk driver would have stopped 

### at it.30 This court found that the experts' testimony "contained] only conclusory

28 185 Wn. App. 10, 20, 341 P.3d 309 (2014), review denied. 183 Wn.2d 1007(2015). 

### 29 109 Wn. App. 140, 149-50, 34 P.3d 835 (2001). 30 Cho, 185Wn. App. at 19-20. -11-NO. 72858-0-1 /12 

### allegations, unsupported by.
. .facts."31 In Miller, an accident reconstructionist testified that in his opinion the defendant's car struckthe plaintiffon the shoulder 

### ofthe road, not the roadway.32 The expert admitted the physical evidencefit the defendant's claim that the plaintiff was standing in the street when he was hit, just as well as it fit the plaintiff's claim that he had been standing on the 

### shoulder.33 Noting the expert based his testimony entirely on one witness's declaration, this court affirmed the trial court's finding that the expert's opinion


### was speculative and lacked an adequatefactual basis.34 Here, however, Harbinson's testimonywas not speculative. Thus, the trial court abused its discretion in excluding it. We distinguish Cho and Miller. Neither case involved testimony about the likely cause of an accident, applying the witness's expertise to photos and witness statements. Rather, the experts in 

### Cho speculated aboutwhat certain actors would have done had the city installed 

### safety features.35 This court properly held that the experts' conclusions lacked
an adequate factual basis. The expert in Miller did not testify about the likely
cause of the accident but to where on the road the plaintiffwas standing when 

### struck.36 The expert based his opinion on the testimony of a single witness, not 31 Cho. 185 Wn. App. at20. 32 Miller. 109Wn. App. at 149-50. 33 Miller. 109Wn. App. at 149. 34 Miller. 109Wn. App. at 149-50. 35 Cho. 185Wn. App. at20. 36 Miller. 109Wn. App. at 149-50. -12-NO. 72858-0-1/13

on the physical evidence. Thus, this courtfound that he based his opinion solely
on a decision to credit that witness, not on his expertise as applied to the facts. In contrast, Harbinson made a complete review of the accident file, including accident photos and the terrain of the hill, in addition to considering Jeffrey's testimony. Harbinson applied his expertise as an accident reconstructionist to this evidence to conclude that Elfrink-Thompson probably lostcontrol because he
was distracted or speeding. The trial court therefore abused its discretion in excluding Harbinson's testimony. The City's Sudden-Incapacity Defense The City argues that even ifthe Burkes can show a prima facie case of negligence, it has a complete defense of sudden incapacity based on Dr. Buchter's testimony. In response, the Burkes point to Dr. Corson's expert testimonydrawing the opposite conclusion. 

### Viewing the facts in the light most favorable to the Burkes, the record shows a factual dispute about the City's defense of sudden incapacity, making 

### summary judgment inappropriate. Dr. Corson's declaration creates a genuine issue ofmaterial fact as to whether Elfrink-Thompson suffered a heart attackthat caused him to lose control ofthe truck. 

### The City contends that Dr. Corson's testimony would be inadmissible at trialas the product of ex parte contact between counsel and a treating physician
-13-NO. 72858-0-1 /14

of the opposing party. A court can consider only admissible evidence when 

### ruling on a motion forsummaryjudgment.37 InLoudon v. Mhyre.38 the Supreme Court held that defense counsel may not engage in ex parte contact with the plaintiff's treating physician in a personal injury action. The City asserts thatthis rule should apply here even though the contact was between counsel for a plaintiff and a physician who read the medical records of the defendants' decedent. The City further contends that Dr. Corson is a treating physician because the Burkes identified him on a witness list indiscovery as someone who may testify to Elfrink-Thompson's treatment or medical records and because he appears to fall under the definition of "health care provider" in the medical torts statute.39 The Burkes deny that Dr. Corson was a treating physician. Dr. Corson
never met Elfrink-Thompson or his family or assisted in his treatment. Dr. 

### Corson only read Elfrink-Thompson's ECG tracings, among 100 or more others that day, to "check that the data in the software-generated interpretation report [wa]s correct." 

### The Supreme Court in Loudon justified its prohibition of ex parte contacts withtreating physicians because "[t]hemerethreatthata physician might engage 37 Burmeisterv. State Farm Ins. Co.. 92 Wn. App. 359, 365, 966 P.2d 921 (1998).38 110Wn.2d 675, 675-76, 756 P.2d 138 (1988). 39 RCW 7.70.020(3). -14-NO. 72858-0-1/15

in private interviews with defense counsel would, for some, have a chilling effect 

### on the physician-patient relationship and hinder further treatment."40 The court has since provided three more justifications: protecting the doctor-patient fiduciary relationship, protecting doctors from potential liability for wrongful disclosures, and avoiding situations where defense counsel would be called to 

### testify as an impeachmentwitness.41 We reject the City's proposed application of the Loudon rule here. We agree withthe Burkes that Dr. Corson was not a "treating physician." Even if we 

### agree that the Loudon rule can apply to contacts between a plaintiff's attorney and a treating physician of the defendants' decedent, the City cites no case 

### applying that rule to a physician with such a tangential connection to the patient. And none ofthejustifications for the Loudon rule wouldjustify extending it to Dr. 

### Corson: allowing counsel to contact a doctor who reviews a patient's ECG tracings among 100 others and has no interactionwiththe patientoreffectonthe patient's treatment would not affect the doctor-patient relationship in the ways Loudon was concerned with. CONCLUSION Because the Burkes' evidence that Elfrink-Thompson crossed the center 

### linecreated a genuine issue of material fact as to breach, the trial court erred in 40Loudon, 110Wn.2d at 679. 41 Youngs v. PeaceHealth. 179Wn.2d 645, 659-60, 316 P.3d 1035 (2014). -15-NO. 72858-0-1/16 granting summary judgment for the City. And because genuine issues of material fact exist about the City's sudden-incapacity defense, we decline to affirm summaryjudgmenton the basis of this defense. We therefore reverse and remand for further proceedings.

WE CONCUR: 

# ^Lik^U

-16-