IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

GILBERTO CANTU, a single person,

Appellant,

v.

ADAMS COUNTY, ADAMS COUNTY 

SHERIFF’S DEPARTMENT, SHERIFF 

DALE J. WAGNER, and DEPUTY 

DARRYL BARNES,

Respondents.

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No. 37149-2-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Gilberto Cantu brought suit to recover damages for an 

ankle injury he sustained while fleeing on his bicycle and being unintentionally struck by 

Deputy Darryl Barnes’s patrol car. The trial court dismissed Cantu’s suit on summary 

judgment. We affirm. 

FACTS

Domestic dispute

On April 3, 2015, the Adams County Sheriff’s Office received a call about a man 

beating up a woman in a homeless encampment in Othello, Washington. The caller told 

dispatch “he believed the male was going to kill the female.” Clerk’s Papers (CP) at 65. 

FILED

NOVEMBER 17, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37149-2-III

Cantu v. Adams County

2

Sheriff’s deputies arrived on the scene and found the woman, who reported that Gilberto 

Cantu had assaulted her. 

Pursuit, collision, and arrest

The next morning, Deputy Darryl Barnes saw a report noting there was probable 

cause to arrest Cantu for assault.1 Around 1:00 p.m., Deputy Barnes saw Cantu, who he 

knew from previous encounters, riding his bicycle near a local motel. Deputy Barnes 

activated his patrol lights and used his car’s public address system to order Cantu to stop.

The patrol car’s video shows what happened.

Cantu continued biking, weaving through parking lots and public streets. Deputy 

Barnes followed Cantu, activated his audible siren, repeatedly ordered Cantu to stop, and 

radioed for backup. 

Cantu rode south on a public street, then doubled back into a gravel parking lot. A 

berm separated the gravel lot from an adjacent lot. Cantu rode toward the berm and 

Deputy Barnes followed close behind, but slightly to Cantu’s right. As they approached 

the berm, Cantu veered in front of the patrol car. Deputy Barnes braked sharply, trying to 

 

1 Deputy Barnes’s declaration states he “had seen documents related to the 

probable cause incident prior to going out on patrol on April 4, 2015.” CP at 56. He 

attaches several police reports to his declaration. This implies he was aware of the facts 

in all of the attached reports. The implication is disingenuous, given that only one of the 

reports was prepared by the morning of April 4. 
No. 37149-2-III

Cantu v. Adams County

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avoid colliding with Cantu. The patrol car skidded on the gravel into Cantu, knocking him 

to the ground. Deputy Barnes got out of his car and found Cantu’s bicycle partially 

underneath his left bumper and Cantu laying on the ground a few feet away complaining 

of pain. Cantu sustained a small hairline fracture in his right foot as a result of the 

collision. After medical personnel cleared Cantu, he was jailed on various charges. 

Cantu filed suit against Adams County, the sheriff’s department, Sheriff Dale 

Wagner, and Deputy Barnes, alleging negligent driving and training, as well as liability 

based on agency and respondeat superior.

Deposition and expert testimony

At Deputy Barnes’s deposition, he explained the moments leading up to the 

collision: “And as I was focusing on the berm, I could see [Cantu] coming into my 

periphery. So I go from my gas to the brake. The car slides. He goes out of view. I back 

my car up and make contact with him to take him into custody.” CP at 112. At Cantu’s 

deposition, he admitted he knew Deputy Barnes was trying to arrest him. He did not deny 

veering his bicycle in front of the patrol car, but said he did not know the patrol car was 

close. 

Adams County’s expert witness, Earl Howerton, opined: 
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4. . . . Deputy Barnes was not negligent while operating his patrol car in 

pursuit of Mr. Cantu. In addition, it was reasonable for Deputy 

Barnes to stop and contact Mr. Cantu in an attempt to arrest him and 

follow him safely until Deputy Barnes could get Mr. Cantu to stop. 

Deputy Barnes’ actions in pursuing and attempting to detain Mr. 

Cantu were consistent with standard police practices and the Sheriff

Department’s protocols.

5. The evidence in this case shows that Deputy Barnes had insufficient 

time to react and avoid Mr. Cantu’s bicycle when it veered into the 

path of Deputy Barnes’ police cruiser. 

CP at 41. Cantu did not hire an expert to rebut Mr. Howerton’s opinion. 

After the parties completed discovery, the defendants successfully moved for 

summary judgment dismissal of Cantu’s various claims. This appeal followed. 

ANALYSIS

NEGLIGENCE: DEPUTY BARNES2

Cantu contends summary judgment was inappropriate because genuine issues of 

material fact exist as to whether Deputy Barnes was negligent. We disagree.

We review an order granting summary judgment de novo, conducting the same 

inquiry as the trial court. Pac. Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d 

342, 350, 144 P.3d 276 (2006). Summary judgment is a burden-shifting scheme, where 

 

2 Cantu does not argue how the trial court erred in summarily dismissing his 

negligent training claim. We deem that claim abandoned on appeal. Podbielancik v. LPP 

Mortg. Ltd., 191 Wn. App. 662, 668, 362 P.3d 1287 (2015).
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the “moving party is entitled to summary judgment if it submits affidavits establishing it 

is entitled to judgment as a matter of law.” Rangers Ins. Co. v. Pierce County, 164 

Wn.2d 545, 552, 192 P.3d 886 (2008). The party opposing summary judgment must then 

“‘set[ ] forth specific facts which sufficiently rebut the moving party’s contentions and 

disclose the existence of a genuine issue as to a material fact.’” Id. (quoting Meyer v. 

Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986)).

In a negligence action, a plaintiff must establish: (1) the existence of a duty, 

(2) a breach of that duty, (3) proximate cause, and (4) resulting injury. Id. “If any of 

these elements cannot be met as a matter of law, summary judgment for the defendant is 

proper.” Id. at 553. Breach and proximate cause are usually factual questions for the 

jury, but they may be resolved at summary judgment if reasonable persons could reach 

only one conclusion from the evidence, together with all reasonable inferences therefrom, 

viewed in the nonmoving party’s favor. Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d 

77 (1985).

Here, Cantu has failed to establish breach of duty. He contends Deputy Barnes 

was traveling too fast for the gravelly conditions to avoid colliding into him. Cantu cites

RCW 46.61.400, which provides:
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No person shall drive a vehicle on a highway at a speed greater than is 

reasonable and prudent under the conditions and having regard to the actual 

and potential hazards then existing. In every event speed shall be so 

controlled as may be necessary to avoid colliding with any person, vehicle 

or other conveyance on or entering the highway in compliance with legal 

requirements and the duty of all persons to use due care.

This statute does not apply. The collision occurred in a gravel parking lot, not on a 

public road. Nor was Deputy Barnes traveling too fast for conditions. He was following

slowly because Cantu was on a bicycle. Reasonable persons can only conclude that 

Deputy Barnes did not travel too fast for conditions and, thus, did not breach any duty.

In addition, Cantu has failed to establish proximate cause. 

Proximate cause, in part, involves the concept of superseding 

causation. An act generally is a proximate cause of an injury if it produces 

the injury. [I]f a new, independent intervening act breaks the chain of 

causation, it supersedes the defendant’s original act and the original act is 

no longer the proximate cause of the injury. Whether an act may be 

considered a superseding cause sufficient to relieve a defendant of liability 

depends on whether the intervening act can reasonably be foreseen by the 

defendant; only intervening acts that are not reasonably foreseeable are 

deemed superseding causes. Unforeseeable intervening acts break the chain 

of causation. 

Sluman v. State, 3 Wn. App. 2d 656, 702, 418 P.3d 125, review denied, 192 Wn.2d 1005, 

430 P.3d 254 (2018) (citations omitted).

Cantu veered his bicycle in front of Deputy Barnes’s patrol car. This caused 

Deputy Barnes to immediately brake and skid into Cantu. Cantu does not explain how 
No. 37149-2-III 

Cantu v. Adams County 

Deputy Barnes could have foreseen a bicycle veering into his path of travel. A reasonable 

person could only conclude that Deputy Barnes could not have reasonably foreseen this. 

Cantu's action was the superseding cause of his own injury. 

We conclude that the trial court did not err by dismissing Cantu's negligence 

claims. And because Deputy Barnes was not negligent, Cantu's agency and respondeat 

superior claims also were properly dismissed. 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Lawrerice-Berrey: J. ) 

j 

WE CONCUR: 

Q. 'c..~ 

Pennell, C.J. 

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