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Thomas v. Metals Express5/10/2005
Metals Express, Inc. and Larry Amell, defendants in a personal injury action brought by Fannie Thomas, appeal the trial court's summary judgment order dismissing co-defendant Michael Stanley. They argue that dismissal was inappropriate because there were material questions of fact as to Stanley's negligence. They also challenge the damages award against them, arguing that the trial court erred when it refused to instruct the jury that there could be more than one proximate cause of an injury. Finding issues of material fact as to Stanley's liability, we reverse and remand for trial.
Facts
In November 1997, Michael Stanley's vehicle struck Fannie Thomas's vehicle after he crossed the center line on Highway 509 while attempting to avoid a seven by eight foot metal garage door that fell off the back of a truck owned by Metals Express and driven by Amell. Thomas sued Metals Express, Amell, and Stanley to recover for her injuries from the accident. As an affirmative defense, Metals Express and Amell claimed that Thomas's injuries may have been caused by her own negligence or the negligence of others and requested apportionment under RCW 4.22.070.
Stanley moved for summary judgment, arguing that: (1) he was not negligent; and (2) if he was, his negligence did not proximately cause the accident. Specifically, he argued that:
{H}e was driving his automobile in a lawful manner. The only reason he collided with the plaintiff's vehicle was because of the flying metal garage door that was headed for his vehicle out of the truck of the defendant Metals Express, Inc.
There is simply no negligence established on the part of defendant Michael F. Stanley.
Clerk's Papers (CP) at 37.
Metals Express, Amell, and Thomas opposed Stanley's motion. Metals Express and Amell argued that there were questions of fact as to Stanley's negligence, specifically: (1) whether Stanley was unable to avoid the accident because he was following Amell's vehicle too closely; (2) whether Stanley attempted to turn into a turn lane rather than into oncoming traffic; (3) whether the oncoming traffic was visible to Stanley; (4) whether the garage door landed to the right of Stanley's lane of travel; (5) whether there was a vehicle in the right lane preventing Stanley from moving into that lane rather than into oncoming traffic; (6) whether the garage door hit Stanley's vehicle; and (7) whether Stanley should have attempted to stop or hit the garage door rather than turn into oncoming traffic. Thomas argued that there were questions of fact as to whether Stanley was following too closely in violation of RCW 46.61.145 or whether he violated RCW 46.61.100 by driving on the left side of the roadway.
Stanley responded that RCW 46.61.145 did not apply because he was not a ''following driver'' for purposes of establishing his legal duty to Thomas, quoting Leach v. Weiss, 2 Wn. App. 437, 467 P.2d 894 (1970). He also argued that his 'crossing the center line' was a normal response to the emergency arising from Metal Express's failure to secure the metal door on its truck. CP at 84.
The trial court granted Stanley's motion and dismissed all claims against him. Although the trial court did not specifically address the effect of this dismissal on Metals Express and Amell's affirmative defense, by finding that Stanley was not negligent, it effectively dismissed this affirmative defense as well.
Metals Express and Amell apparently did not request that the trial court issue CR 54(b) findings to allow them to appeal the summary judgment ruling. Instead, in their trial brief, Metals Express and Amell expressed disagreement with the s
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