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Cox v. Malcolm

April 18, 1991

EVERETT JOSEPH COX, AS GUARDIAN AD LITEM, APPELLANT,
v.
JULIA K. MALCOLM, ET AL, DEFENDANTS, DON R. LOBE, RESPONDENT



Green, C.j. Munson and Thompson, JJ., concur.

Author: Green

Everett Joseph Cox, as guardian ad litem for Jason Cox, a minor, commenced this action against Don Lobe to recover damages for personal injuries suffered when the vehicle in which Jason was a passenger left the road and plunged into the Lind-Coulee Reservoir. He alleged Mr. Lobe, the boy's stepgrandfather, was negligent in allowing Jason to be taken as a passenger in the vehicle after its driver had consumed alcohol at Mr. Lobe's home. Mr. Lobe moved for and was granted summary judgment. The sole issue on appeal is the propriety of the summary judgment.

On April 20, 1986, Mr. Cox placed his 5-year-old son, Jason, in the care of Julia Malcolm. She was Mr. Cox's 20-year-old, live-in girl friend. Ms. Malcolm telephoned Mr. Lobe, who was Mr. Cox's stepfather, and asked if she and the boy could come to his house so she could sunbathe. Mr.

Lobe agreed. Upon their arrival at 2:30 p.m., Ms. Malcolm requested an alcoholic beverage.*fn1 Mr. Lobe mixed her a rum and Coke which she took with her to the patio. Mr. Lobe and Jason worked in the yard; they planted shrubs and flowers, changed the oil in the lawn mower, and mowed the lawn. Approximately 1 hour later, Ms. Malcolm asked for another drink. Mr. Lobe served her a second rum and Coke and she returned to the patio. Mr. Lobe and Jason returned to the garden. When she finished her second drink, Ms. Malcolm entered the house and poured herself another drink. She finished her third drink in approximately 15 minutes and then told Mr. Lobe that she and Jason had to leave to attend a picnic in Othello.

About 4:40 p.m., Ms. Malcolm and Jason left the Lobe residence. Approximately 2 1/2 miles from the Lobe residence, she blacked out at the wheel. Her car left the road, rolled down an embankment and plunged into the Lind-Coulee Reservoir. Jason was under water for about 30 minutes before rescuers took Ms. Malcolm and Jason to Samaritan Hospital in Moses Lake. Approximately 1 hour after the accident, two state troopers observed her at the hospital. Both smelled a strong odor of intoxicants and concluded she was intoxicated. At 6:40 p.m., a blood sample was taken reflecting an alcohol content of .20 percent. As a result of the tragic accident, Jason suffered severe, permanent and disabling injuries.

This action was commenced on June 13, 1986, against Ms. Malcolm and Mr. Lobe to recover damages for the boy's injuries.*fn2 Mr. Lobe's motion for summary judgment dismissal was granted. This appeal follows.

Juanita Martini, Jason's substituted guardian ad litem,*fn3 contends the court erred in granting the summary judgment. Relying on Curran v. Marysville, 53 Wash. App. 358, 766 P.2d 1141, review denied, 112 Wash. 2d 1020 (1989), she argues an issue of material fact exists as to whether Mr. Lobe was negligent in turning Jason over to Ms. Malcolm after Ms. Malcolm's consumption of alcohol. Mrs. Martini asserts that having assumed responsibility for Jason while Ms. Malcolm sunbathed, Mr. Lobe was required to act with reasonable care.

[1] Summary judgment will be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982); CR 56(c). A material fact is one upon which the outcome of the litigation depends. Estate of Celiz v. PUD 1, 30 Wash. App. 682, 684, 638 P.2d 588 (1981). The initial burden is on the moving party to prove there is no genuine issue of material fact. Rathvon v. Columbia P. Airlines, 30 Wash. App. 193, 201, 633 P.2d 122 (1981), review denied, 96 Wash. 2d 1025 (1982). The burden then shifts to the nonmoving party to set forth specific facts showing there is a genuine issue requiring a trial. Rathvon, at 201. The court considers all facts and reasonable inferences therefrom in a light most favorable to the nonmoving party.

[2] The essential elements of actionable negligence are: (1) the existence of a duty owed to the complaining party, (2) a breach thereof, (3) a resulting injury, and (4) a proximate cause between the claimed breach and resulting injury. Hansen v. Washington Natural Gas Co., 95 Wash. 2d 773, 776, 632 P.2d 504 (1981). The threshold determination of whether a duty exists is a question of law, not of fact. Bernethy v. Walt Failor's, Inc., 97 Wash. 2d 929, 933, 653 P.2d 280 (1982); Mejia v. Erwin, 45 Wash. App. 700, 705, 726 P.2d 1032

(1986); Peterson v. Pacific First Fed. Sav. & Loan Ass'n, 23 Wash. App. 688, 692, 598 P.2d 407 (1979). If it can be said as a matter of law that reasonable persons could reach but one conclusion, after considering all of the evidence most favorably to the nonmoving party, summary judgment may ...


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