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Weisenburg v. Townsend8/28/2000
David Weisenburg, Jr. (David Jr.) was playing with friends on Peter Townsend's property when he climbed on top of a short platform-like fence, grabbed a branch on a madrona tree, and swung. The branch broke sending David Jr. to the ground. He struck his head on a concrete parking block and suffered a fatal head injury. His father, David Weisenburg, Sr. (Weisenburg) brought this lawsuit against Townsend alleging that the madrona tree, short platform-like fence, and parking block created a dangerous condition. The trial court denied Townsend's first motion for summary judgment. Following additional discovery and transfer to a different judge, the trial court granted his second motion. Weisenburg appeals arguing that the trial court erred in granting the second motion for summary judgment because (1) it was identical to the previous motion and (2) he raised genuine issues of material fact as to whether Townsend owed a duty to David Jr. as a licensee or as a child trespasser. We reverse summary judgment because this case presents questions of fact for the jury to determine.
FACTS
On August 14, 1996, eight-year-old David Weisenburg, Jr. (David Jr.) was playing across the street from his apartment at a commercial parking lot. He climbed onto a short platform-like fence near a large madrona tree, grabbed a branch from the tree and swung on it. Unfortunately, the branch broke causing David Jr. to fall to the ground. He allegedly struck his head on a concrete parking block in the parking lot. Witnesses said he remained on the ground with his head against the concrete until someone walked him home. Tragically, David Jr. died from a brain hemorrhage later that night. Upon investigation, a police officer observed a broken limb on the tree at about ten feet high and a wooden fence just below. The officer, however, was unable to locate the broken branch.
David Weisenburg filed suit against Peter Townsend (the landowner) for the wrongful death of his son based on premises liability. On October 13, 1998, Townsend filed a motion for summary judgment claiming that the tree and fence are not a dangerous condition under Washington law and therefore he owed no duty to David Jr. As evidence to support the motion, Townsend relied merely on a photograph of the tree and a four-sentence declaration by a tenant stating that he never saw children playing around the madrona tree. The trial court denied the motion for summary judgment as well as a later motion for reconsideration.
In January 1999, the trial court on its own motion transferred the case to another judge effective February 1, 1999. Some discovery took place in subsequent months, particularly the deposition of Michael Bienn (Weisenburg's expert), Joseph Bozick (Townsend's expert), and Matthew Whyde (the key witness). On May 21, 1999, Townsend filed another motion for summary judgment based on the deposition of Bienn, Bozick, and Whyde. On June 21, 1999, the trial court granted summary judgment in favor of Townsend. Weisenburg appeals.
DISCUSSION
We review a grant of summary judgment de novo, but consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). Summary judgment is appropriate only if the pleadings, depositions, admissions on file, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c).
I. Remaking the Motion
Weisenburg first argues that under King County Local Rule 7(6) and the law of stare decisis, the trial court erred in granting an identical motion
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