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Drenkhahn v. Myers

September 30, 1996

MAHLON T. DRENKHAHN, INDIVIDUALLY, AND ON BEHALF OF THE ESTATE OF KAZUKO DRENKHAHN, APPELLANT,
v.
MICHAEL E. MYERS AND JANE DOE MYERS, HUSBAND AND WIFE; BRAD MINTON AND JANE DOE MINTON, HUSBAND AND WIFE; CITY OF BREMERTON; KITSAP COUNTY; PUGET SOUND POWER & LIGHT COMPANY, A WASHINGTON CORPORATION; AND STATE OF WASHINGTON, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 93-2-12732-4. Date filed: 10/05/94. Judge signing: Hon. William L. Downing.

Authored by Faye C. Kennedy. Concurring: Susan R. Agid

The opinion of the court was delivered by: Kennedy

KENNEDY, A.C.J. -- Mahlon Drenkhahn appeals the trial court's order granting summary judgment to the City of Bremerton and Puget Sound Power and Light Company, contending that dismissal of his claims was improper in this case because genuine issues of material fact exist regarding the legal cause of the accident giving rise to his injuries. Drenkhahn also contends that the trial court erred in denying his motion to strike a supplemental affidavit of Respondents' expert. Finding no error, we affirm.

FACTS

On May 26, 1990, Michael Myers was traveling westbound on 11th Street in downtown Bremerton. As he approached the intersection of 11th and Park Avenue, the light turned yellow. Thinking he could beat the light, Myers made no attempt to stop and proceeded into the intersection.

Simultaneously, Mahlon Drenkhahn, who had the green light, entered the intersection heading north on Park Avenue. Myers's car collided with the passenger side of Drenkhahn's car. The force of the impact drove Drenkhahn's car 142 feet into a power pole. Drenkhahn's wife, who was in the front passenger seat, died at the scene. Drenkhahn sustained serious injuries.

Following the accident, a blood sample taken from Myers indicated that his blood alcohol level was .21. Although Myers testified that his speed never exceeded 35 miles per hour, a witness at the scene estimated that Myers's car was traveling between 50 and 60 miles per hour just prior to impact. An accident reconstruction expert calculated that the minimum speed of Myers's car immediately prior to impact was at least 54 miles per hour. The speed limit on 11th Street at the intersection of Park Avenue is 30 miles per hour. Myers was charged with vehicular homicide. On September 1, 1992, he pleaded guilty to the amended charge of vehicular assault.

On May 25, 1993, Drenkhahn filed a complaint against Puget Sound Power & Light Company (Puget Power) and the City of Bremerton (Bremerton). *fn1 The complaint alleged negligence by Puget Power in locating the power pole, and negligence by Bremerton in the design and construction of the road and the traffic signal. On September 1, 1994, Puget Power and Bremerton filed a joint motion for summary judgment, arguing that there was no legal causation to support liability on their part. On October 5, 1994, the trial court granted Respondents' motion, dismissing Drenkhahn's claims of negligence. This timely appeal followed.

Discussion

A. Motion to Strike Expert's Supplemental Affidavit

Drenkhahn contends that the trial court erred in refusing to strike a supplemental affidavit of Respondents' expert which was submitted with Respondents' rebuttal papers. Drenkhahn argues that he had no opportunity to respond to the supplemental affidavit, and thus it should not have been considered by the trial court in deciding the summary judgment motion. We disagree.

In support of their motion for summary judgment, Respondents filed an affidavit of Robert Broshears, an accident reconstruction expert.

Broshears calculated that the minimum speed of Myers's car immediately prior to impact was at least 54 miles per hour. Although Drenkhahn filed no expert evidence in response to Respondents' motion, he did file a memorandum in which he asserted that summary judgment was inappropriate because "Mr. Myers states he was driving the speed limit". Clerk's Papers at 186. In reply, Respondents submitted a supplemental affidavit of Broshears stating:

2. Based on my experience gained in 25 years as an on-scene accident investigator for the Washington State Patrol and over 900 accidents that I have reconstructed since 1982 as a private reconstruction expert, it is my opinion that a side impact ...


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