Nathan Lowman, Petitioner, v. Jennifer Wilbur et al., Defendants, Skagit County et al., Respondents, 178 Wash. 2d 165

Stephens, J. ¶1 This case presents an opportunity to clarify the interrelationship between questions of duty and legal causation in the context of a municipality’s or utility’s obligation to design and maintain reasonably safe roadways. We held in Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002), that the duty to design and maintain reasonably safe roadways extends “to all persons, whether negligent or fault-free.” Today, we hold that the reasoning of Keller equally supports a determination of legal causation in this context.

Therefore, if the jury finds the negligent placement of the utility pole too close to the roadway was a cause of Nathan Lowman’s injuries when Jennifer Wilbur’s car left the roadway and struck the pole, then it was also a legal cause of Lowman’s injuries. Contrary Court of Appeals cases predating Keller are disapproved. We reverse the -Court of Appeals decision upholding the

summary judgment order in Puget Sound Energy’s (PSE) and Skagit County’s favor and remand for further proceedings. FACTS ¶2 On the night of August 5, 2005, Lowman and Wilbur left a bar together. With Lowman as a passenger, Wilbur drove along Satterlee Road, a two-lane country road near Anacortes, Washington. As Wilbur was driving down a steep, winding hill, she lost control of her vehicle, left the road, and hit a PSE utility pole. The utility pole was located 4.47 feet from the edge of the roadway.

Lowman sustained severe injuries, including the permanent disfigurement of his right arm. ¶3 Lowman brought a negligence claim against Wilbur, PSE, Skagit County, and others. As to PSE and Skagit County, Lowman alleged misplacement of the utility pole. PSE and Skagit County filed a joint motion for

summary judgment solely on the issue of legal causation, stipulating to the elements of duty, breach, resulting injury, and cause in fact for the purpose of

summary judgment only. Lowman presented evidence from a civil engineer that Skagit County utility pole placement standards “included a ten foot ‘clear zone’ ” between the edge of the road and utility poles along Satterlee Road. Clerk’s Papers at 167. Other evidence showed that Wilbur was speeding at the time of the accident and that she was driving while under the influence of alcohol. ¶4 The trial court granted PSE and Skagit County’s joint motion for

summary judgment, dismissing Lowman’s claims against those parties on the basis that the alleged negligent placement of the utility pole was not a legal cause of Lowman’s injuries. The Court of Appeals affirmed the trial court’s order. Lowman v. Wilbur, noted at 162 Wn. App. 1029 (2011). Lowman then petitioned this court for review, which was granted. Lowman v. Wilbur, 173 Wn.2d 1016, 272 P.3d 247 (2012). ANALYSIS ¶5 We review an order granting or denying

summary judgment de novo. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). “A motion for

summary judgment is properly granted where ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.’ ” Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003) (alteration in original) (quoting CR 56(c)). ¶6 In order to recover on a common law claim of negligence, a plaintiff “must show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach as the proximate cause of the injury.” Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998).

Washington “recognizes two elements to proximate cause: [c]ause in fact and legal causation.” Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Here, legal causation is the only element at issue because PSE and Skagit County stipulated to the elements of duty, breach, resulting injury, and cause in fact for the purpose of

summary judgment. ¶7 Legal causation “is grounded in policy determinations as to how far the consequences of a defendant’s acts should extend.” Crowe, 134 Wn.2d at 518. In deciding whether a defendant’s breach of duty is too remote or insubstantial to trigger liability as a matter of legal cause, we evaluate “ "mixed considerations of logic, common sense, justice, policy, and precedent.’ ” Hartley, 103 Wn.2d at 779 (quoting King v. City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)). ¶8 We have long recognized the interrelationship between questions of duty and legal cause. Id. at 779-81.

In Hartley we explained that both questions concern the policy issue of how far the legal consequences of the defendant’s negligence should extend. Id. at 779-80; see also Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998).

In the context of liability for negligent roadway design or maintenance, any consideration of the legal cause question should therefore begin with a review of the duty question, as analyzed in Keller, 146 Wn.2d 237. ¶9 This court in Keller held that “a municipality owes a duty to all persons, whether negligent or fault-free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.” Id. at 249. The court rejected the notion that recognizing this responsibility toward drivers who use the roads in a negligent manner would make municipalities liable for all traffic accidents.

Id. at 251-52. We emphasized that only reasonable care is owed and noted that a resulting injury must not be too remote under a legal cause analysis. Id. at 252. ¶10 Keller represented an important clarification of Washington law, correcting previous suggestions from lower courts that municipalities need not design or maintain roads to protect against negligent or reckless conduct, including conduct by those who may be comparatively at fault for their injuries. This view had gained traction in a line of lower court cases beginning with Klein v. City of Seattle, 41 Wn.

App. 636, 705 P.2d 806 (1985) and Braegelmann v. County of Snohomish, 53 Wn. App. 381, 766 P.2d 1137 (1989). See also Cunningham v. State, 61 Wn. App. 562, 811 P.2d 225 (1991); Medrano v. Schwendeman, 66 Wn. App. 607, 836 P.2d 833 (1992). Under either a duty or a legal cause analysis, these Court of Appeals cases rejected the imposition of liability for roadway design and maintenance as to extremely negligent or criminally reckless drivers. ¶11 Medrano is the most factually similar case to this one. There, a drunk driver lost control of his truck and hit a power pole. 66 Wn. App. at 608-09.

In a suit brought by one of the injured passengers, the defendant-driver Schwendeman cross claimed against King County and Puget Power for negligent design and maintenance of the roadway and for negligent positioning of the pole. Id. at 610. On

summary judgment, the trial court ruled against Schwendeman. Id. Using a legal cause analysis, the Court of Appeals affirmed, reasoning that “[t]he County and Puget Power should not be required to protect against the consequences of criminally reckless drivers.” Id. at 613. ¶12 As noted, this court in Keller took a broader view of a municipality’s or utility’s responsibility to protect the users of public roads. Analyzing the question of duty, the court unequivocally rejected limitations on liability for roadway design or maintenance premised on the negligence or recklessness of a driver.

Keller, 146 Wn.2d at 249. The Court of Appeals in Unger v. Cauchon, 118 Wn. App. 165, 173-76, 73 P.3d 1005 (2003), subsequently recognized that Keller departed from earlier Court of Appeals cases. Nonetheless, PSE and Skagit County continue to rely on these cases, reasoning that Keller’s holding pertains only to the question of duty, not to the question of legal cause. ¶13 We disagree. We cannot disregard Keller’s holding that the responsibility to design and maintain reasonably safe roadways extends to both at-fault and fault-free drivers. Keller, 146 Wn.2d at 249.

Many of the same concerns that guided the duty analysis in Keller must guide the analysis of legal causation in this case. Legal cause “is grounded in policy determinations as to how far the consequences of a defendant’s acts should extend.” Crowe, 134 Wn.2d at 518. “Legal causation is, among other things, a concept that permits a court for sound policy reasons to limit liability where duty and foreseeability concepts alone indicate liability can arise.” Schooley, 134 Wn.2d at 479.

At the same time, the policy considerations that support imposition of a duty will often compel the recognition of legal causation, so long as cause in fact is established under the relevant facts. See Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 476, 656 P.2d 483 (1983) (holding “as a matter of law in wrongful birth cases, if cause in fact is established, the proximate cause element is satisfied”). Such is the case here.

If Lowman’s injuries were in fact caused by the placement of the utility pole too close to the roadway, then they cannot be deemed too remote for purposes of legal causation. ¶14 Schooley is instructive in this analysis. There, an alcohol vendor sought to limit its liability for selling alcohol to a minor, where the minor shared the alcohol with another minor who severely injured herself while inebriated. Schooley, 134 Wn.2d at 472. The Schooley court recognized that the legal cause question was not determined by separate concerns as to the scope of duty, contributory negligence, or superseding cause.

Id. at 480-83. Rather, as to legal cause, the court held that “[t]he injury suffered is not so remote as to preclude liability and the policy considerations behind the legislation are best served by holding vendors liable for the foreseeable consequences of the illegal sale of alcohol to minors.” Id. at 483. ¶15 Likewise, here, there is no rationale to negate the sound policy preference expressed in Keller for holding municipalities and companies charged with maintaining utilities accountable for doing so in a reasonable fashion, particularly with regard to safe travel on public roads.

Whatever the reasons for a car’s departure from a roadway, as a matter of policy we reject the notion that a negligently placed utility pole cannot be the legal cause of resulting injury. As in Schooley, the injury here was not so remote as to preclude liability as a matter of law. If a jury concludes that Lowman suffered injuries within the scope of the duty owed to Lowman — i.e., that his injury was not too remote— then there is no basis to foreclose liability as a matter of legal cause. Of course, this analysis answers only the legal prong of the causation analysis.

At trial, a jury could limit or negate liability on any number of theories, including comparative fault or the failure to prove factual causation. CONCLUSION ¶16 We reverse the Court of Appeals. The trial court erred in granting

summary judgment of dismissal on the issue of legal causation. Recognizing that duty and breach were stipulated for the purpose of

summary judgment only, we hold that legal causation is satisfied here and remand for further proceedings. C. Johnson, Owens, Fairhurst, Wiggins, and González, JJ., and Chambers, J. Pro Tem., concur.