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Slagle v. Hubbard8/15/2001
Argued and submitted November 14, 2000.
Reversed and remanded.
Plaintiff, acting for herself and as personal representative of the estate of her deceased husband, initiated this action for personal injury and wrongful death arising out of an automobile accident. Plaintiff's vehicle was struck by a truck driven by Erik R. Hubbard, with whom plaintiff alleged defendant Blake Charles Painter had been racing on a state highway. Plaintiff asserted a claim of negligence against Painter, a minor, and his parents. Defendants moved for judgment on the pleadings and, in the alternative, for summary judgment, arguing that the pleadings and the evidence were insufficient as a matter of law to establish that Hubbard and Painter had been racing. The trial court granted both motions. Plaintiff appeals, arguing that the trial court erred in light of allegations and evidence that Hubbard and Painter acted in concert and therefore are jointly liable for one another's tortious conduct. We agree with plaintiff and reverse and remand.
Plaintiff's second amended complaint contains the following allegations. On January 20, 1996, Painter and Hubbard intended to drive from their homes in Astoria, Oregon, to a motorcycle race in Woodland, Washington. Each drove separately in his own pickup truck. They "agreed to race" the pickups "at excessively high speeds" along Highway 30, with Painter's truck in the lead and Hubbard's truck following. Painter led at a speed that was "too fast for the conditions then and there existing" when he approached a gasoline tanker. He passed the tanker. Hubbard attempted to do likewise, but hit plaintiff's oncoming vehicle head-on, killing Hubbard and plaintiff's husband and seriously injuring plaintiff.
Plaintiff's theory of liability against defendants was that Painter aided or assisted Hubbard in the commission of a tort and therefore is jointly liable with Hubbard for the consequences of Hubbard's collision. Plaintiff also sued Hubbard's parents individually and as representatives of his estate, but her claims against the Hubbards are not at issue in this appeal.
Defendants moved for judgment on the pleadings and, in the alternative, for summary judgment, arguing that Painter was not involved in the accident and that plaintiff's attempt to impose joint liability by invoking the "tort of racing" failed as a matter of law. According to defendants, plaintiff neither alleged nor offered any evidence of an actual agreement to race. Plaintiff responded that the allegations of the complaint, which specifically alleged that Painter and Hubbard agreed to race, were sufficient. As evidence in support of her theory, plaintiff submitted an affidavit of a witness, Betty Culver, who testified that she observed Painter and Hubbard pass her on Highway 30, that they were traveling very fast and very close together--so close that, at first, she did not realize that she was being passed by two trucks instead of one. She testified that " oth pickups were traveling much too fast, they were traveling together, and it was obvious that they were racing together to get somewhere."
Defendants moved to strike Culver's testimony that Painter and Hubbard were "racing" on the ground that it was inadmissible opinion testimony, and the trial court granted the motion. The trial court then granted both the motion for judgment on the pleadings and the motion for summary judgment. The court concluded that plaintiff failed to plead or offer evidence that Painter and Hubbard agreed to "race," which it held referred narrowly to a head-to-head speeding competition. Although the trial court did not expressly say so, we assume that it granted the first motion and then, in
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