Am v. Estate

SOEUN AM, a single individual, and KHEAM CHEAM,a single individual, Appellants/Cross-Respondents, v. THE ESTATE OF DILLON K. O'BRIEN, and the STATE OF WASHINGTON,its subdivisions and agencies, and theWASHINGTON STATE PATROL, Respondents/Cross Appellants.

No. 80596-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 19, 2021

UNPUBLISHED OPINION

DWYER, J. — Soeun Am and Kheam Cheam appeal from the trial court's orders (1) entering final judgment in favor of the State of Washington with regard to several negligence claims, and (2) denying their motion for a new trial. At trial, Am and Cheam claimed that the Washington State Patrol, among other things, negligently failed to cause the activation of a message on highway reader boards to warn oncoming traffic of a wrong-way driver before that driver collided with Am's vehicle. Pursuant to a motion for judgment as a matter of law, the trial court ruled that insufficient evidence was adduced at trial to support a finding that the Washington State Patrol's failure to cause the activation of a warning on highway reader boards was a factual proximate cause of the injuries sustained by Am and Cheam. On appeal, Am and Cheam challenge that ruling. Finding no error, we affirm.

I

On May 17, 2015, at approximately 3:57 a.m., a vehicle driven by Dillon O'Brien was traveling eastbound in the westbound lanes of Interstate 90 and collided with a westbound vehicle driven by Soeun Am. Am's mother, Kheam Cheam, was a passenger in Am's vehicle. At the time of the collision, O'Brien was under the influence of alcohol and marijuana. O'Brien died as a result of the collision. Both Am and Cheam suffered severe injuries in the collision.

Approximately 26 minutes before the collision, at 3:31 a.m., a concerned citizen telephoned 911 and reported an erratic driver who was driving eastbound in the eastbound lanes of I-90 near milepost 38. Upon receiving the report, a Washington State Patrol (WSP) dispatcher broadcasted the report over a WSP radio frequency. At 3:32 a.m., state Trooper Theodore Hahn acknowledged the broadcast by reciting his badge number. At this time, Trooper Hahn was the only trooper on duty in his autonomous patrol area.¹

When Trooper Hahn received the broadcast, he was located in a state patrol detachment office in Bellevue near milepost 11. Trooper Hahn was working on a work-related incident report. After receiving the broadcast, Trooper Hahn did not depart from the detachment office in order to search for the eastbound driver. He made this decision, the trooper testified, because, based on his training and experience, "trying to chase down an erratic driver is something that's very, very hard to locate." Trooper Hahn reasoned that, by thetime he would have been able to reach the vehicle's location, "there is a number of places it could either turn around or exit." In the meantime, Trooper Hahn was positioned in a "major metropolitan area" where he was "centrally located to answer calls where the majority of the calls come out at that time of night." In short, the trooper concluded that, given that he was alone on the shift, it was most prudent to remain in Bellevue and complete the report.

Twelve minutes after the first report, at 3:43 a.m., a state patrol dispatcher received a report of a wrong-way driver heading eastbound in the westbound lanes of I-90 near milepost 38. At 3:44 a.m., the dispatcher notified Trooper Hahn of the report. Upon being notified of the existence of a wrong-way driver, Trooper Hahn immediately left the detachment office in order to pursue the wrong-way vehicle.

Also at 3:44 a.m., a state patrol dispatcher received another report, which indicated that the wrong-way driver had now been seen at milepost 46.² Next, at 3:46 a.m., another report was received, placing the wrong-way driver at milepost 47. Then, at 3:47 a.m., a report was received that placed the wrong-way driver at milepost 48. And at 3:50 a.m., another report was received that placed the wrong-way driver at milepost 50.

At 3:57 a.m., a state patrol dispatcher received a report of a collision in the westbound lanes of I-90. The collision occurred between mileposts 53 and 54.³ The state patrol dispatcher received the report from a Kittcom dispatcher.⁴

At 4:14 a.m., 30 minutes after leaving the Bellevue detachment office, Trooper Hahn arrived at the scene of the collision. On his way there, Trooper Hahn drove his patrol vehicle at an average speed of approximately 95 miles per hour.

At 4:34 a.m., a Kittcom dispatcher requested that the Washington State Patrol contact the Department of Transportation (DOT) to request activation of a message on highway reader boards to warn oncoming traffic of the collision.⁵ At 4:42 a.m., Trooper Christine White contacted a state patrol dispatcher, Donna Warren, and informed Warren that the DOT had not yet activated a message on the reader boards. A recording of the exchange between Trooper White and dispatcher Warren was presented to the jury at trial:

Trooper White: Can you have DOT maybe put something up on the reader boards? There's nothing comingup westbound that advises you that the road will be closed.

Warren: They were advised to put up on the reader boards for all traffic to exit westbound.

Trooper White: Yeah they haven't done so. There's nothing up.

Warren: I'll call them back. Four forty two.

A state patrol dispatcher testified that, when Warren stated "four forty two," she was referring to the then-current time. Thus, the exchange between Trooper White and Warren indicates that the DOT had initially received a request to program a warning on highway reader boards sometime before 4:42 a.m.

At 5:20 a.m., an entry on a state patrol dispatch log indicated that the DOT had activated a message on two reader boards—located at mileposts 54 and 61—which provided, "ALL VEHS MUST EXIT."⁶ No evidence was adduced at trial demonstrating that a message on the highway reader boards had been activated at any time prior to 5:20 a.m.

On May 17, 2017, Am and Cheam filed a complaint against the estate of Dillon O'Brien and the State of Washington. The complaint alleged, among other things, that employees and agents of the State of Washington owed a duty of care to "warn Plaintiffs of potential hazards on the state-regulated highway." According to the complaint, the State "negligently breached" this duty and, as "adirect and proximate cause of [the State's] breach of the duty of care," Am and Cheam "suffered, and continue to suffer, from physical and emotional injuries."

The case proceeded to a jury trial. During the trial, Am and Cheam adduced evidence that, pursuant to a Washington State Snoqualmie Pass closure plan, the Washington State Patrol was expected to contact the DOT in order to activate warnings on highway reader boards when "inclement weather" impacted highway conditions.⁷

Am and Cheam also elicited testimony from expert witness Donald Van Blaricom, a retired chief of police. Van Blaricom testified that a 2012 report from the National Highway Transportation Safety Board recommended that, when a wrong-way driver is located on a highway, law enforcement agencies should contact the "Department of Transportation[] to program their reader boards to warn oncoming traffic that they have a wrong-way driver coming in their direction." Van Blaricom additionally testified that the Washington State Patrol had not adopted any training or policy to instruct state troopers on how to utilize highway reader boards in order to warn oncoming traffic of a wrong-way driver.

At the close of the evidence, the State moved for judgment as a matter of law. With regard to the claim that the State was negligent for failing to cause to be activated a message on highway reader boards in order to warn oncomingtraffic of the wrong-way driver, the State argued that insufficient evidence supported a finding of factual proximate cause:

[DEFENSE COUNSEL]: In pointing out that on this morning it took an hour for it to happen so it could have made no difference, and there's no evidence as to how long does it take - let's say they make the request as soon as they hear about the wrong-way driver at 3:43. Say they make it right away. It's 14 minutes later when the report of the collision comes in. There is no evidence in the record to suggest that DOT gets a sign changed within 14 minutes.

The trial court partially granted the State's motion for judgment as a matter of law, ruling that insufficient evidence was introduced from which a jury could find that the State's failure to request DOT to activate a warning on the highway reader boards was a factual proximate cause of the injuries sustained by Am and Cheam:

[T]he Court will find that there is insufficient evidence to allow a jury to make a reasonable inference here that the reader boards were a proximate cause of this -- or the lack of information on the reader boards was a proximate cause to this injury, and so the Court will preclude any argument related to the reader boards being causally related to this accident.

The jury returned a verdict finding that the State was not negligent with respect to any of the claims advanced by Am and Cheam.⁸ Am and Cheam subsequently filed a motion for a new trial. In the motion, Am and Cheam claimed that the trial court erred by ruling that insufficient evidence supported a finding that the State's failure to cause to be activated a warning on the highway reader boards was a factual proximate cause of their injuries. Additionally, Amand Cheam asserted that the State improperly argued during closing argument that any failure to activate a warning on the reader boards was not a proximate cause of their injuries. The trial court denied the motion for a new trial.

Am and Cheam appeal.

II

Am and Cheam contend that the trial court erred by ruling, as a matter of law, that the State's failure to request DOT to activate a message on highway reader boards in order to warn oncoming traffic of the...