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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEIRTRA WILLIAMS, 

as personal representative of the 

ESTATE OF DEIDRA L. CLARK; 

A.M.C., a minor child; 

DEIRTRA CLARK, a single person; 

NORMAN DEVOE, a single person; 

R.E.A., a minor child,

 Appellants,

v.

KING COUNTY, 

a municipal corporation;

CANDLEWOOD RIDGE 

HOMEOWNER’S ASSOCIATION 

(d/b/a CANDLEWOOD

RIDGE/CARRIAGE WOOD

HOMEOWNER’S ASSOCIATION), 

a Washington nonprofit corporation;

CANBER CORPORATION, 

a Washington corporation,

ISSAQUAH TREE CARE LLC, a 

Washington corporation,

 Respondents.

No. 81075-8-I

 DIVISION ONE

UNPUBLISHED OPINION

COBURN, J. — Appellants sued King County for various forms of 

negligence after a tree fell across a road onto a passing car killing the driver and 

injuring a passenger. Appellants challenge the trial court striking a portion of 

their expert’s report, striking a Google image of the tree, and granting of 

summary judgment to the County. Finding no error, we affirm. 
No. 81075-8-I/2

2

FACTS

On November 13, 2017, Deidra Clark was driving along SE 179th Street 

near the Candlewood Ridge development in unincorporated King County, 

Washington (County). Deidra’s twin sister, Deirtra Clark, was in the front 

passenger seat; Deidra’s daughter, four-year-old A.M.C., was in the back seat.1 

According to the County, the National Weather Service had a high wind warning 

in effect for that date, and the area was likely experiencing gale force winds with 

gusts of up to 35 to 45 miles per hour. 

As the car neared the intersection of SE 179th Street and 159th Avenue 

SE, a black cottonwood tree (subject tree) fell on the car. Deidra was killed and 

Deirtra was injured. A.M.C. was not injured. Norman DeVoe was Deidra’s fiancé 

and A.M.C.’s father. He arrived at the scene of the accident within minutes, saw 

his deceased fiancée, and looked for his daughter before realizing that she had 

already been removed from the car. 

Deirtra Williams (mother of Deidra and Deirtra Clark) as personal 

representative of Deidra’s estate, A.M.C., Deirtra Clark, and Norman DeVoe 

sued King County, the Candlewood Ridge Homeowner’s Association (HOA), and 

Canber Corporation (the HOA’s landscaping contractor). For clarity, we refer to 

the plaintiffs collectively as Williams. The complaint raised three causes of 

action: negligence; negligent hiring, training, retention and/or supervision; and 

negligent infliction of emotional distress. Williams subsequently amended their 

 1 We use first names for clarity when family members share the same last 

name.
No. 81075-8-I/3

3

complaint several times, including adding defendant Issaquah Tree Care 

(contracted by the HOA to inspect and maintain trees on HOA property).2 As 

litigation unfolded, the following facts and opinions were made part of the record.

The black cottonwood tree that fell was located on private property owned 

by the Candlewood Ridge Homeowner’s Association. After the accident, King 

County Road Services Division vegetation specialist James Kotarski inspected 

the remaining stem, or trunk, of the subject tree from the County right-of-way. He 

said the stem was partially covered in English ivy and he saw a fungal “conk”, or 

fruiting body, on the southwest side of the stem. Such conks usually indicate 

decay that structurally weaken the trunk of a tree. 

An expert arborist for Williams, Galen Wright, inspected the remaining 

stem of the tree from the HOA’s private property. He noted the English ivy 

partially covering the stem, three conks of stem decay fungi, some decay in one 

“lateral anchor root,” and some bark separation just above the “root collar.” 

According to Wright, the black cottonwood tree species is prone to branch, stem, 

and root failures even in non-storm conditions. Both Kotarski and Wright agreed 

that the subject tree leaned over the road.

The County Road Services Division maintains a “Road Helpline” that allow 

citizens, County employees, and partner agencies to call and report concerns 

about county roadways, including “trees of concern,” defined as standing trees 

on or near a county roadway that may pose a hazard. Prior to the accident, the 

 2 According to the record before us, all defendants besides the County have 

now settled with Williams; in any event, the County is the only defendant involved 

with this appeal. 
No. 81075-8-I/4

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County did not receive any reports about the subject tree. 

In the 13 months prior to the accident, the County was aware of other 

trees that fell in the general vicinity. On January 20, 2017, another cottonwood 

tree on the same parcel of private property fell, which was located approximately 

30-40 feet from the subject tree. In October 2016 and February 2017, two trees

located about 0.6 miles away from the subject tree fell onto SE Petrovitsky Road. 

On November 8, 2017, two or three cottonwood trees3 fell onto the County rightof-way at the intersection of SE Petrovitsky Road and 151st Avenue SE. 

Defendant Candlewood Ridge Homeowner’s Association moved to 

dismiss the claims of negligent infliction of emotional distress brought by DeVoe 

and A.M.C pursuant to CR 12(b)(6). The County joined the motion. The superior 

court dismissed DeVoe’s claims for negligent infliction of emotional distress but 

not A.M.C.’s claims for the same. 

The County moved for summary judgment. The County argued that its

duty to maintain roads that are reasonably safe for ordinary travel did not extend 

to hidden dangerous conditions, which it did not create or have notice of, 

including decay in a tree located on private property. The County further argued 

that it did not have a legal duty to inspect all trees located near county roads in 

the absence of a complaint or other notice of concern about a particular tree. 

Last, the County argued that it enjoyed discretionary immunity. 

Williams filed a written opposition to the County’s motion for summary 

 3 The record contains conflicting claims as to whether there were two or 

three trees that fell on this date. Either way, our analysis remains the same. 
No. 81075-8-I/5

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judgment and submitted a written report from Wright, a certified arborist and 

forester, and portions of his deposition testimony. 

The County moved to strike (1) portions of Wright’s opinions on the basis 

that they are speculative; and (2) a Google image of subject tree submitted by 

Williams in their opposition brief. 

King County Superior Court held a hearing on the County’s motion for 

summary judgment. At the conclusion of the hearing, the court granted summary 

judgment to the County ruling that the County did not have actual or constructive 

notice. The court struck the portions of Wright’s opinion and the Google image 

that the County had objected to. 

Williams appeals the order granting King County’s motion for summary 

judgment and the earlier superior court order dismissing DeVoe’s claims of 

negligent infliction of emotional distress. 

DISCUSSION

Legal Standards

Municipalities are generally held to the same negligence standards as 

private parties. Helmbreck v. McPhee, 15 Wn. App. 2d 41, 50, 476 P.3d 589 

(2020). Thus, to bring a negligence claim against King County, Williams must be 

able to prove duty, breach, causation, and injury. Id. The existence and scope 

of a duty are questions of law. Wuthrich v. King County, 185 Wn.2d 19, 25, 366 

P.2d 926 (2016). 

We review summary judgments de novo. Strauss v. Premera Blue Cross, 

194 Wn.2d 296, 300, 449 P.3d 640 (2019). “Summary judgment is appropriate 
No. 81075-8-I/6

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when ‘there is no genuine issue as to any material fact and . . . the moving party 

is entitled to a judgment as a matter of law.’ ” Id. (alteration in original) (quoting 

Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008)); 

CR 56(c). We must construe all facts and inferences in favor of the nonmoving 

party. Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (2014). “A 

genuine issue of material fact exists when reasonable minds could differ on the 

facts controlling the outcome of the litigation.” Dowler v. Clover Park Sch. Dist. 

No. 400, 172 Wn.2d 471, 484, 258 P.3d 676 (2011).

Motion to Strike

Appellants argue that the trial court erred by striking a portion of Wright’s 

expert report and a photograph that they included in their brief to the trial court in 

opposition to summary judgment, which they described as a Google image of the 

subject tree taken six years before the accident. 

We review these trial court evidentiary decisions de novo. See Momah v. 

Bharti, 144 Wn. App. 731, 182 P.3d 455 (2008) (on appeal from summary 

judgment, trial court rulings on the admissibility of evidence are reviewed de novo 

even though the same rulings might be reviewed only for abuse of discretion in 

an appeal following a trial). 

A. Wright’s report

As a preliminary matter, appellants contend that the superior court did not 

specify which of Wright’s opinions should be stricken and that if the case 

proceeded to trial, it would be unclear which “portions” of Wright’s opinions were 
No. 81075-8-I/7

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stricken. Appellants contend that this lack of clarity alone justifies reversal of the 

superior court’s decision to strike. Id.

The superior court’s ruling was not so vague as to merit reversal on that 

basis. The County’s motion to strike identified the following portion of Wright’s 

opinion that the County argued was too speculative: “This recent, nearby tree 

failure should have stimulated a review of other trees in the vicinity on the HOA 

property as well as by King County. If this had been done, likely the fungal conks 

would have been noticed triggering a more detailed assessment of the subject 

tree.” In its oral ruling, the superior court said it was striking Wright’s “opinion as 

to the speculative portions of his opinions. He indicated that if there had been an 

inspection, it is likely that the conks would have been noticed. That is all 

speculative and I will strike his testimony as well.” The court’s written order 

stated that the County’s motion to strike was granted. The record is sufficiently 

clear that the superior court struck the portion of Wright’s opinion that the County 

identified as too speculative and any deposition testimony that stated the same. 

Next, appellants argue that Wright’s opinion was not impermissibly 

speculative. An expert’s opinion must be based on fact and cannot simply be a 

conclusion or based on an assumption if it is to survive summary judgment. 

Strauss v. Premera Blue Cross, 194 Wn.2d 296, 301, 449 P.3d 640 (2019). 

Wright was unable to cite any treatise or other authority stating that a tree 

falling in one area requires an examination of other trees in the area, nor did he 

opine on how far from any fallen tree such an inspection should cover. Wright 

did not know why the other trees in the general vicinity fell or whether they were 
No. 81075-8-I/8

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diseased. Wright viewed only the remaining stump of the tree that failed in 

January 2017; he did not examine the other fallen trees that are at issue here. 

Concluding that had the County examined these other trees, they would likely 

have noticed fungal conks was nothing more than speculation. The trial court did 

not err by striking the disputed portion of Wright’s report and any corresponding 

testimony. 

B. The disputed Google image 

Appellants argue that the trial court erred by striking the disputed Google 

image of the subject tree because their expert, Wright, based his opinion on it. 

Thus, they argue, the image was admissible under ER 7034 as facts or data upon 

which Wright based his opinion. 

However, the record is not clear that Wright actually based his opinion on 

the disputed Google image. Wright’s report contains an image from Bing Maps 

Streetview, and in his deposition testimony he refers to the “Bing imagery,” 

“imagery from Bing 2011,” and “the photos we have, the imagery we have from 

Bing 2011...”. The logical conclusion is that Wright was referring to the Bing 

image in his report, not the Google image. But because the Bing image was 

from 2014 and the Google image was from 2011, it is not altogether clear from 

his deposition testimony which image Wright relied upon. Appellants have not 

demonstrated conclusively that Wright relied on the disputed Google image to 

 4 ER 703 states, “The facts or data in the particular case upon which an 

expert bases an opinion or inference may be those perceived by or made known 

to the expert at or before hearing. If of a type reasonably relied upon by experts 

in the particular field in forming opinions or inferences upon the subject, the facts 

or data need not be admissible in evidence.” 
No. 81075-8-I/9

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form his expert opinion.

Even if Wright relied on the Google image to form his opinions, as the 

appellants claim, that does not make the image substantively admissible 

evidence under ER 703. We rejected a similar argument last year in the case of 

Desranleau v. Hyland's, Inc., 10 Wn. App. 2d 837, 844–45, 450 P.3d 1203, 

(2019), review denied, 195 Wn. 2d 1004, 458 P.3d 783 (2020):

Desranleau also incorrectly argues that because Dr. Pietruszka 

relied on Reid's statements when forming his opinion, those 

statements became admissible evidence under ER 703. ER 703 

allows an expert witness to base their opinion on facts or data 

regardless of their admissibility, and ER 705 provides that 

an expert may be required to disclose the underlying facts or data 

on which their opinion is based, but neither provides that 

inadmissible statements become substantively admissible simply 

because an expert relied on them in forming their 

conclusions. See State v. Anderson, 44 Wn. App. 644, 652, 723 

P.2d 464 (1986) (ER 705 is not “a mechanism for admitting 

otherwise inadmissible evidence as an explanation of 

the expert's opinion.”).

Appellants further argue that the jury should decide the weight or 

credibility given to the image. But that ignores the requirement of authentication. 

Under ER 901, authentication is a “condition precedent to admissibility.” To lay a 

proper foundation for photographs, “it is only required that some witness, not 

necessarily the photographer, be able to give some indication as to when, where, 

and under what circumstances the photograph was taken, and that the 

photograph accurately portrays the subject illustrated.” State v. Newman, 4 Wn. 

App. 588, 593, 484 P.2d 473 (1971). Authentication would certainly be important 

in this case where the image appeared on its face to be distorted because even 

the light pole appeared to be leaning. Appellants failed to authenticate the 
No. 81075-8-I/10

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image. The trial court did not err by striking the disputed Google image offered 

by the appellants. 

County’s Duty: Notice and Foreseeability

Appellants argue that issues of material fact exist as to whether the

County had actual or constructive notice of the “unsafe condition” — which they 

define as either the general fact that black cottonwoods lined the street or the 

specific danger that the subject tree would fall — or that such condition was 

foreseeable. For any one of these reasons, appellants argue, the County had a 

duty to take action to mitigate the danger. 

Whether a duty exists is a question of law we review de novo. Hertog v. 

City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). 

A. Actual or Constructive Notice

Government entities owe a duty to all persons to maintain their roadways 

in a condition that is reasonably safe for ordinary travel. Keller v. City of 

Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). But this duty is conditional, 

for it arises only when the government entity has notice of and time to correct the 

hazard in question. Helmbreck v. McPhee, 15 Wn. App. 2d 41, 50, 476 P.3d 589 

(2020). As a result, the County must have (1) notice of a dangerous condition 

which it did not create, and (2) reasonable opportunity to correct it before liability 

arises for negligence. See id. Notice to King County may be actual or 

constructive. Id. Constructive notice may be inferred from the elapse of time a 

dangerous condition is permitted to continue. See id. “Constructive notice arises 

if the condition existed for a period of time so that the municipality should have 
No. 81075-8-I/11

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discovered its existence through the exercise of reasonable care.” Ogier v. City 

of Bellevue, 12 Wn.App.2d 550, 555, 459 P.3d 368 (2020). 

Three cases relating to the dangers of roadside vegetation are instructive: 

Albin v. National Bank of Commerce of Seattle, 60 Wn.2d 745, 375 P.2d 487 

(1962), Wuthrich v. King County, 185 Wn.2d 19, 366 P.2d 926 (2016), and 

Helmbreck v. McPhee, 15 Wn. App. 2d 41, 476 P.3d 589 (2020).

In Albin, a tree fell and struck a car driving on a county road through a 

“heavily-wooded, mountainous area, during a windstorm of disputed force.” 60 

Wn.2d at 747. The road was used “somewhat extensively” during the deer and 

elk hunting season, though it was “remote and closed by snow during the winter.” 

Id. A person in the car was killed and the administrator of his estate sued the 

county, among other parties. Id. The trial court dismissed the county from the 

lawsuit. Id. The Washington Supreme Court held the trial court did not err by 

dismissing the county because there was no evidence the county had actual or 

constructive notice that the tree posed a danger: 

There is no evidence that the county had actual notice that the tree 

which fell was any more dangerous than any one of the thousands 

of trees which line our mountain roads, and no circumstances from 

which constructive notice might be inferred. It can, of course, be 

foreseen that trees will fall across tree-lined roads; but short of 

cutting a swath through wooded areas, having a width on each side 

of the traveled portion of the road equivalent to the height of the 

tallest trees adjacent to the highway, we know of no way of 

safeguarding against the foreseeable danger...

Id. at 748-49. 

In Wuthrich, a motorcyclist sued King County after he was hit by a car 

alleging that King County was liable for his injuries because overgrown 
No. 81075-8-I/12

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blackberry bushes obstructed the car driver’s view of traffic at the intersection. 

185 Wn.2d at 24-25. The trial court dismissed the action against the county on 

summary judgment. Id. The Washington Supreme Court disagreed, holding that 

there were genuine issues of material fact as to whether the county breached its 

duty. Id. The Washington Supreme Court explained the county’s duty as 

follows: “We reaffirm that a municipality has a duty to take reasonable steps to 

remove or correct for hazardous conditions that make a roadway unsafe for 

ordinary travel and now explicitly hold this includes hazardous conditions created 

by roadside vegetation.” Id. at 27. 

Regarding breach of duty, the Washington Supreme Court stated,

“Whether the County breached its duty depends on the answers to factual 

questions: Was the road reasonably safe for ordinary travel, and did the 

municipality fulfill its duty by making reasonable efforts to correct any hazardous 

conditions?” Id. at 27. The Washington Supreme Court stated that the plaintiff 

introduced sufficient evidence to create genuine issues of material facts as to 

both of these questions: The driver testified that her view of the intersection was 

obstructed by the blackberry bushes, and the plaintiffs’ experts testified that the 

County could have taken a variety of corrective actions to address the issue. Id.

at 27. 

In Helmbreck, the plaintiff sued the city of Des Moines, among others, for 

negligence based on injuries he sustained in a car accident. 15 Wn. App. 2d at 

46. The plaintiff claimed he could not see down the street due to a hedge 

blocking his view of the street and got into an accident due to the alleged lack of 
No. 81075-8-I/13

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visibility. Id. The hedge was located on private property. Id. at 46. The plaintiffs 

argued that the city of Des Moines had constructive notice that the vegetation 

made the intersection dangerous because the vegetation had existed for at least 

seven years. Id. at 54. Plaintiffs’ expert testified that the hedge had been cut

back about four or seven years before the accident, and at that time,, the 

intersection probably would have looked safe to City employees and most

drivers; but, he opined, on the day of the accident the “overgrown vegetation” 

obstructed drivers’ view of traffic conditions and created a dangerous condition. 

Id. at 54. 

Despite the alleged length of time that the vegetation had existed and the 

testimony of the plaintiff’s expert, Helmbreck held that the record lacked evidence 

that the City had constructive notice. Id. at 54. “As the trial court correctly noted, 

Helmbreck has provided no authority that the City had a legal duty to inspect the 

street and inform itself of dangerous conditions. No legal basis has been 

established for a presumption that the City should have known the vegetation 

was a dangerous condition.” Id. at 54. Helmbreck distinguished Wuthrich

because in Wuthrich there was evidence that the blackberry bushes at issue had 

been there for years and King County knew about them. Id. at 53.

Unlike the County’s knowledge of the existence of the blackberry bushes 

that obstructed drivers’ views in Wuthrich, in the instant case, there is no 

evidence that the County had actual notice of the dangers of the subject tree. 

The evidence the appellants point to in support of their argument that the County 

had actual notice — including previous tree falls in the vicinity of the subject tree 
No. 81075-8-I/14

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and the claim that black cottonwoods are generally susceptible to rot and failure 

— are not specific to the subject tree but instead relevant to the issues of 

constructive notice or foreseeability. 

Turning to constructive notice, the appellants argue that an issue of 

material fact exists whether King County had constructive notice of the subject

tree because (1) Wright stated that there were three conks of a stem decay fungi 

(“fungal conk”) on the tree that would have been present on the tree between six 

and 12 years; (2) Wright opined that the crown of the tree and a portion of the 

stem of the tree were leaning over the road at least 15 to 20 degrees; (3) the tree 

was located in a “highly trafficked” residential neighborhood; (4) other trees had 

fallen in the vicinity of where the subject tree fell. 

The appellants’ constructive notice claims are most analogous to 

Helmbreck and Albin, where there was a lack of evidence that the local 

government entity had constructive notice and were dismissed from the lawsuits. 

Because we view the facts in the light most favorable to the appellants, we 

assume the subject tree, which still had leaves when it fell, leaned slightly toward 

the road; the subject tree was partially covered in ivy and had at least one fungal 

conk visible from the County right-of-way after viewing the stem intensely for a 

few minutes; and that other trees, some of which were black cottonwoods and 

some not, fell in the general vicinity of the subject tree. 

Despite the fact that some of these conditions had allegedly existed for a 

number of years, as in Helmbreck, the conditions simply were not so obvious or 

dangerous as to put the County on constructive notice that the subject tree itself 
No. 81075-8-I/15

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posed a danger. Appellants have not provided any evidence regarding why the 

other fallen trees in the vicinity fell or connecting their falls to the fall of the 

subject tree. Appellants have not demonstrated that the lean of the subject tree 

was uncommon or particularly dangerous. Kotarski, the County’s vegetation 

specialist for the Road Services Division, stated in his declaration that it is “not 

uncommon for trees along roadways to lean toward the road, because trees seek 

sunlight and there is less competition for that over the roadway . . . Leaning trees 

are common along King County roadways and the fact that a tree leans toward 

the road does not make it a hazardous tree . . . ” Kotarski visually observed the 

“snag” (stem) of the tree after the accident and wrote, “I could tell that the snag 

was leaning slightly north, toward the county road. The amount of lean I 

observed was similar to many tress located near roadways in King County and it 

was not leaning at a severe angle.” 

In short, the appellants’ evidence is not sufficient to create a genuine issue 

of material fact regarding whether the County was on actual or constructive 

notice of the alleged dangerous condition of the subject tree. 

B. Foreseeability 

Appellants argue that a genuine issue of material fact exists as to whether 

the County should have foreseen that the subject tree posted a danger to the 

public. No notice (either actual or constructive) is required if the danger was one 

the County should have foreseen and guarded against. Albin, 60 Wn.2d at 748. 

The question of foreseeability goes to the question of whether the defendant 

owed a duty of care to the plaintiff. Rikstad v. Holmberg, 76 Wn.2d 265, 268, 
No. 81075-8-I/16

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456 P.2d 355 (1969).

The appellants’ argument regarding foreseeability is similar to their 

argument regarding constructive notice — that is, they rely on the same “warning 

signs,” as they characterize them, to argue that they created a genuine issue of 

material fact regarding foreseeability. Appellants contend that because of these 

“warning signs,” the County should have been proactive and closely examined 

any leaning black cottonwoods in the vicinity when it was aware that several 

black cottonwoods had fallen in the general vicinity. However, this suggests the 

County should forage for signs of dangerous conditions along County roads, 

which is not what the law requires. We rejected this argument in Helmbreck: “As 

the trial court correctly noted, Helmbreck has provided no authority that the City 

had a legal duty to inspect the street and inform itself of dangerous conditions. 

No legal basis has been established for a presumption that the City should have 

known the vegetation was a dangerous condition.” Helmbreck, 15 Wn.App.2d at 

54.

For the same reasons appellants did not create an issue of material fact 

regarding constructive notice, detailed in the section above, they also did not 

create a genuine issue of material fact regarding foreseeability. They did not 

demonstrate that the County should have reasonably anticipated the danger 

based on the small number of other trees that had fallen at different times in the 

general vicinity, even if some of those trees were the weak-wooded black 
No. 81075-8-I/17

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cottonwood species. 

The trial court did not err by granting the County’s motion for summary 

judgment.5

Affirmed.

WE CONCUR:

 5 Because we hold that the County had no duty, we need not address the 

appellants’ argument that the trial court erred by dismissing DeVoe’s claims of 

negligent infliction of emotional distress nor the County’s argument that it was 

entitled to discretionary immunity.