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Bray v. CKM Associates9/17/2001
CKM's motion to dismiss the claim.
Negligent Supervision
Bray also contests the trial court's dismissal of his claim against CKM for negligent supervision of the crew and work site. To support summary judgment dismissal of this claim, CKM argued that there was no evidence that CKM or anyone under its supervisory authority or control removed the rope used by Bray to secure the ladder.
On summary judgment, the moving party bears the initial burden of showing the absence of a genuine issue of material fact. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). This burden can be met by showing that there is an absence of evidence supporting the nonmoving party's case. White v. Kent Med. Ctr., Inc., P.S., 61 Wn. App. 163, 170, 810 P.2d 4 (1991). Once that burden is met, the burden shifts to the party with the burden of proof at trial to make a showing sufficient to establish the existence of an element essential to the party's case. Id. If the claimant fails to meet that burden, the trial court should grant the motion because there can be no genuine issue of material fact, given that a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
To prove negligence, a plaintiff must establish the existence of a duty, a breach of that duty, resulting injury , and proximate causation between the breach of the duty and the resulting injury. Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). CKM argued below that there was no evidence of breach, pointing out that Bray could not even be certain that the rope had not been removed by Sean O'Connell, another Concrete Coring employee whom Bray had seen on the walk- bridge just before he fell. The only evidence Bray submitted to support CKM's alleged breach was that (1) the rope was secure when Bray left work on Friday; (2) it had been removed before he returned to work on Monday; and (3) Mark Astor and Tony Delmorel of CKM were working on the site on Saturday.
Because CKM had no common law duty to provide a safe workplace, Bray's negligent supervision claim must be based on an affirmative act of negligence on the part of CKM or someone under its supervisory control. See Hennig, 116 Wn.2d at 133-34. Bray argues that his evidence creates an inference that an employee of CKM removed the rope from the ladder. We disagree. On the evidence in this record, a trier of fact would have to speculate as to whether an employee of CKM or of Concrete Coring or of any other subcontractor working on the site removed the rope. Bray provided no facts linking CKM to the removal of the rope, by inference or otherwise.
Neither did he rebut Astor's testimony that while he and Delmorel were at the building on Saturday, they were nowhere near the location of the ladder. The mere occurrence of an injury does not prove negligence; the defendant's conduct must be a proximate cause of the plaintiff's injury. Herskovits v. Group Health Co-op., 99 Wn.2d 609, 615, 664 P.2d 474 (1983). A determination of proximate cause may not rest on speculation or conjecture. Schneider v. Rowell's, Inc., 5 Wn. App. 165, 167-68, 487 P.2d 253 (1971). Similarly, an allegation of breach of a duty cannot rest on speculation or conjecture. The trial court properly dismissed this claim.
Finding no error, we affirm the dismissal of Bray's claims by way of summary judgment.
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