Estate of Torres v. Kennewick Sch. Dist. No 17

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ESTATE OF JONNY TORRES, by and through his Personal Representative Manuel Banda; JAMIE VALENCIA, parent of Jonny Torres; MARIA M. TORRES, parent of Jonny Torres, Plaintiffs, v. KENNEWICK SCHOOL DISTRICT NO. 17, a quasi-government agency and agents thereof with knowledge and responsibility; TAMARA VASQUEZ, individually and in her capacity as nurse at Highland Middle School; Defendants.

No. 4:19-CV-05038-MKD

United States District Court, E.D. Washington

March 28, 2024

ORDER DENYING THE ESTATE'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES ECF NO. 382

MARY K. DIMKE UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiffs the Estate of Jonny Torres, Jamie Valencia and Maria Torres (collectively “the Estate's”) Motion for Partial Summary Judgment on Affirmative Defenses. ECF No. 382. On May 18, 2023, the Court held a hearing on the motion. ECF No. 407. Marshall Casey and Marcus Sweetser appeared on behalf of the Estate. Michael McFarland and Rachel Platin appeared on behalf of Defendants KSD and Tamara Brun (“Nurse Brun”) (collectively the “KSD Defendants”).^[1]

This case concerns the death of Jonny Torres (“Torres”), a KSD student who visited Nurse Brun's office and later that day suffered a severe medical emergency resulting in his death. See ECF No. 117. The Estate brings state law negligence claims against the KSD Defendants. ECF No. 117 at 20-21. The KSD Defendants, with their Answer, assert a number of affirmative defenses. ECF No. 120 at 25-26.

On April 3, 2023, the Estate moved for partial summary judgment as to certain affirmative defenses. ECF No. 382.

For the reasons stated herein, the Estate's motion is denied.

BACKGROUND

The factual circumstances underlying this litigation, disputed and undisputed, have been thoroughly briefed in prior motions and orders. The Court refers to its Orders at ECF Nos. 421, 543, for the factual basis underlying the instant order.

LEGAL STANDARD

A district court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnes v. Chase Home Fin., LLC, 934 F.3d 901, 906 (9th Cir. 2019). “A fact is ‘material' only if it might affect the outcome of the case, and a dispute is ‘genuine' only if a reasonable trier of fact could resolve the issue in the non-movant's favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (quoting Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court “must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inference in the nonmoving party's favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018).

The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the portions of the record and the evidence that demonstrate the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323 (quoting former Fed.R.Civ.P 56(c)). After the moving party has satisfied its burden to survive summary judgment, the non-moving party must demonstrate with evidence on the record “specific facts” showing that there is a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324. “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient[.]” Anderson, 477 U.S. at 252. A party may move for summary judgment on part of a claim or defense. Fed.R.Civ.P. 56(a).

The court “must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inference in the nonmoving party's favor.” Rookaird, 908 F.3d at 459. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ....” Anderson, 477 U.S. at 255.

DISCUSSION

The Estate moves for summary judgment on the following affirmative defenses:

E. The damages and injuries claimed by Plaintiffs were caused by the actions and/or inactions of an at-fault nonparty - the City of Kennewick.

F. The actions and inactions of the City of Kennewick were the sole proximate cause of the damages and injuries claimed by Plaintiffs herein and/or an intervening/superseding act.

ECF No. 382 at 2-3 (quoting ECF No. 120 at 25-26).^[2] The Estate contends that summary judgment is appropriate based on: (1) procedural deficiencies in the affirmative defenses; (2) the lack of factual disputes requiring summary judgment as to the affirmative defenses and (3) the legal basis of the affirmative defenses.

A. The KSD Defendants Did Not Waive the Affirmative Defenses as to Fault of the City and the Paramedics

The Estate argues that the KSD Defendants “waived the affirmative defense of non-party fault, stating it would not assert any non-party was at fault.” ECF No. 382 at 4. To apportion fault to a non-party, a defendant must affirmatively plead the theory as an affirmative defense and identify the non-party. Afoa v. Port of Seattle, 421 P.3d 903, 913 (Wash. 2018) (citing Wash. Super. Ct. Civ. R. 12(i)).

On May 24, 2021, the Estate amended its complaint with leave of court, naming the City and the paramedics as defendants. See ECF Nos. 115, 117. On June 1, 2021, the KSD Defendants amended their answer with leave of court, asserting that the City and the paramedics were at fault. See ECF No. 115; ECF No. 120 at 25-26. The instant briefing was submitted in April and May 2023, before the Court granted summary judgment on the Estate's claims against the City and the paramedics in June 2023. See ECF Nos. 382, 396, 421.

The Estate does not assert procedural deficiency with the affirmative defenses as related to then-parties the City and the paramedics, but argues that KSD has waived defenses based on the fault of any other non-parties. ECF No. 382 at 4-5. The KSD Defendants concede that there are no other non-parties at issue, and that their reference to other non-parties was an “error.” ECF No. 390 at 3-4. Therefore, the Estate's motion as to an affirmative defense asserting the fault of non-parties other than the City and the paramedics is denied as moot.

For clarity, the City and the paramedics might now be considered nonparties as all claims against them have been dismissed. See ECF No. 421. In any event, the Estate has had notice that the KSD Defendants assert the fault of the City and the paramedics since, at the latest, the KSD Defendants' Motion for Leave to Amend Answer, filed February 11, 2021. ECF No. 90. Notice is sufficient and the defense has not been waived. See Fed.R.Civ.P. 8(c); Rosen v. Masterpiece Mktg. Grp., LLC, 222 F.Supp.3d 793, 797-98 (C.D. Cal. 2016) (citations omitted).

B. Causation Remains in Dispute

The Estate argues that the KSD Defendants cannot prove that the paramedics were (1) the sole proximate cause of, (2) a superseding cause of, or (3) otherwise at fault for Torres's death. ECF No. 382 at 5-9. The Estate fails to offer undisputed facts precluding the KSD Defendants from offering these causation-related defenses at trial.

1. The Proximate Causes of the Estate's Injuries are Disputed

The Estate assumes as undisputed that the KSD Defendants' negligence caused Torres's parents to call 911, therefore any injury arising out of the paramedics' treatment is causally traceable to the KSD Defendants. ECF No. 382 at 6-7.

It is a plaintiff's burden to prove that the defendant's breach of a duty was the proximate cause of its injury. Lowman v. Wilbur, 309 P.3d 387, 389 (Wash. 2013) (citation omitted). Proximate causation has two elements: cause in fact and legal causation. Id. (citation omitted). “Cause in fact refers to the ‘but for' consequences of an act-the physical connection between an act and an injury.” Meyers v. Ferndale Sch. Dist., 481 P.3d 1084, 1089 (Wash. 2021) (citation omitted).

“A defendant may argue another entity was the sole proximate cause of an injury[.]” Afoa, 421 P.3d at 910. A plaintiff's burden is not alleviated when the defendant argues, as a defense, that a third party's negligence was the “sole proximate cause” of the plaintiff's injury. See Knight v. Borgan, 324 P.2d 797, 804-05 (Wash. 1958) (noting that the defendant's affirmative defense that a third party's negligence was the “sole proximate cause” of an injury “did not relieve [the plaintiff] of the burden of proving that [the defendant's] negligence . . . was a proximate cause”) (emphasis in original).

The Estate argues that “KSD caused an asthmatic event that the paramedics were trying to mitigate[.]” ECF No. 396 at 3. The Estate does not cite to the record in support of this argument. Fed.R.Civ.P. 56(c) requires that “[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion” by citing to materials in the record. See also LCivR 56(c)(1). Even if the Estate's failure to do so is excused, the Estate's statement of facts offers no facts, disputed or not, indicating that the KSD Defendants' conduct necessitated a 911 call after Torres left school. ECF No. 383. The KSD Defendants offer facts related to causation, which the Estate disputes. ECF Nos. 391, 397. For example, the KSD Defendants offer the opinions of several experts, “all of whom opine that [Torres's] exercise in PE did not cause his bronchospasm four hours later that day.” ECF No. 390 at 16-17 (citing ECF No. 391 at 20 ¶ 88, 22 ¶ 93, 23 ¶ 96, 2425 ¶ 101). The Estate responds to each of these sections with objections and contentions that these facts are disputed. ECF No. 397 at 14 ¶ 88, 15-16 ¶ 93, 1718 ¶ 96, 20 ¶ 101.

It is genuinely disputed whether the paramedics were the sole proximate cause...