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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

COLIN BOWERS,                                                    No.  41362-1-II

                             Appellant,

       v.

PAMELA M. and JERRY MARZANO, and                           UNPUBLISHED OPINION
WALTER S. BOWERS,

                             Respondents.

       Johanson, J.  --  Colin Bowers rode as a passenger in an automobile that failed to yield the 

right-of-way to a speeding favored driver, Pamela Marzano.  Marzano's vehicle collided with 

Bowers's, and Bowers suffered significant injuries that he alleges Marzano could have prevented 

or minimized had she driven with proper attentiveness.  The trial court granted summary judgment 

for Marzano, concluding that Bowers failed to establish Marzano's point of notice.  We hold that 

a genuine issue of material fact exists regarding Marzano's point of notice, sufficient to avoid 

summary judgment, and thus Bowers should have the opportunity to demonstrate to a jury that  

No. 41362-1-II

Marzano's speed or negligence not only proximately caused the accident but also contributed to 

his enhanced injuries. Accordingly, we reverse and remand for trial.

                                            FACTS

                                        I.  The Accident

       In August 2008, Pierce County Sheriff's deputies responded to a two-car collision at the 

intersection of 152nd St. E, running east/west without a stop sign, and 66th Ave. E, running 

north/south and with a stop sign.  Walter Bowers (Walter),1 the driver on 66th Ave. E, failed to 

stop at the stop sign and performed a "California stop" before driving a Subaru  through the 

intersection.  Clerk's Papers (CP) at 47.  Marzano, driving a truck traveling on 152nd St. E, then 

collided with the passenger side of the Subaru before both vehicles spun off the road.  

       Bowers, seated in the Subaru's front passenger seat, suffered severe head injuries.  At the 

scene, Marzano told deputies that Walter "blew through the stopsign [sic]" without stopping.  CP 

at 284.

       Niccole Johnson saw the Subaru as it approached the stop sign and said it could not have 

been traveling any faster than 10 mph    But she looked away from the intersection when the 

Subaru was roughly 10 feet from the stop sign, so she did not witness the collision.  At the 

accident scene, deputies found the Subaru in first gear.

       Walter pleaded guilty to vehicular assault as a result of the accident.

1 For clarity, we refer to Colin Bowers as "Bowers" and his brother, Walter Bowers, as "Walter."  
We intend no disrespect.

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                                      II.  Procedural Facts

                                    A.  Summary Judgment

       Bowers sued Marzano for damages resulting from Marzano's  negligence based on 

inattentiveness and speeding.  A yellow caution sign warning drivers of an upcoming intersection 

was posted roughly 200 feet before the intersection on 152nd St. E.  The posted speed limit on 

152nd St. E was 35 mph.  Marzano's  vehicle accident reconstruction expert, John Hunter, 

declared in an affidavit that Marzano collided with the Subaru while speeding at 39 mph.  

Bowers's expert, Walter Becinski, declared in an affidavit that Marzano was speeding at 41 mph.

       To reconstruct the accident, Becinski analyzed data from various sources:  he visited the 

accident scene; he reviewed the sheriff's department's investigative reports and scene diagram of 

the accident; he reviewed photographs of the accident and surrounding roadways; and he 

examined electronic data retrieved from Marzano's truck, Marzano's deposition, and various 

witness declarations.  Becinski also established several facts based on the SLAM (Simulated 

Linear Accident Momentum) accident simulation program, which uses, among other things, 

vehicle weights, angles approaching the crash, tire marks, and the place where vehicles come to 

rest to calculate the force and momentum necessary for vehicles to move the way they did post-

crash. First, Becinski opined that Marzano was not driving attentively before the accident, which 

resulted in her delayed reaction to seeing the Subaru enter the intersection.2   The crash data 

retrieval (CDR) information obtained from Marzano's truck indicated that she maintained steady 

2 During her deposition, Marzano admitted that she "did not pay particular attention to any 
warning signs on the day of that accident." CP at 117.  

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No. 41362-1-II

revolutions per minute (RPM) immediately before the accident.  And crash scene photos revealed 

no tire marks until just five feet before the site of impact.  Therefore, Marzano did not heed the 

caution the intersection warning sign suggested and was not watching for intersection traffic as 

advised.  Becinski ultimately concluded that, had Marzano been driving with reasonable vigilance 

as she approached the intersection, she would have slowed and been prepared to react to crossing 

traffic; as a result, she would have seen the Subaru run the stop sign at the first possible moment 

and would have begun braking within .67 seconds.

       Second, Becinski calculated that had Marzano driven  attentively and braked when the 

Subaru passed through the stop sign into the intersection, she would have had 2.53 seconds to 

react and stop.3 Bowers asserted that this 2.53 seconds constituted Marzano's point of notice.  

Becinski arrived at 2.53 seconds based on his SLAM program analysis, a video recreation of the 

Subaru's approach to the intersection, evidence that the Subaru was in first gear, and Johnson's 

estimate that the Subaru drove less than 10 mph as it approached the stop sign.

       Third, Becinski determined that, even driving 41 mph, an alert Marzano could have braked 

to avoid any collision had she driven attentively and reacted when she noticed the Subaru crossing 

the intersection.4 At 41 mph, an attentive Marzano would have begun braking in .67 seconds; 

consequently, she would have begun braking 111.8 feet before the intersection.  Had she done 

this, Marzano would have stopped in 74.9 feet, leaving over 36 feet between her truck and the 

3 Becinski calculated 2.53 seconds by determining that it would have taken the Subaru 2.53 
seconds to travel from the stop sign to the point of impact, if it drove 15 mph.

4 During her deposition, Marzano said she saw the Subaru go through the stop sign, but she did 
not brake.

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No. 41362-1-II

Subaru.5  Becinski further added that Marzano should have slowed to 30 mph at seeing the 

intersection warning sign, and Bowers supports this opinion with the Washington Department of 

Licensing's Washington Driver Guide.  The Washington Driver Guide states that intersection 

warning signs "warn you to slow down and be prepared to stop if necessary." CP at 112.

       Marzano moved for summary judgment, asserting that Walter was solely responsible for 

his brother's injuries because Walter failed to stop at the stop sign and yield the right-of-way.  

Marzano further asserted that Bowers failed to present evidence that Marzano owed or failed to 

meet a duty whose breach proximately caused the accident. 

       The trial court granted summary judgment for Marzano,6 reasoning that Becinski's data 

did not adequately show where Marzano "would have had notice that Bowers was going to 

disregard the signage and was going to enter the intersection." Verbatim Report of Proceedings 

(VRP) (April 30, 2010) at 39.

       Bowers moved for reconsideration.  He argued that a Subaru traveling 15 mph would 

have taken 2.53 seconds to go from the stop sign to the point of the collision -- or two seconds 

from the point the car was halfway through the stop sign.  Bowers argued that the 2.53 seconds 

provided sufficient notice to Marzano to react.  Again, the trial court denied Bowers's motion for 

5 Marzano traveled at 41 mph, or 60.133 feet/second.  After subtracting her reaction time (.67 
seconds) from the total time from point of notice to impact (2.53 seconds), Marzano would have 
had 1.86 seconds to avoid the collision.  60.133 feet/second x 1.86 seconds = 111.8 feet.

6 In making its determination on the motion for summary judgment and motion for 
reconsideration, the trial court considered the declarations of Marzano, Hunter, Don Daniel 
(Marzano's attorney), Johnson, Kenneth Breit (filmmaker), Colin Daly (biomechanical 
engineering expert), Dawn Edwards (owner of the Subaru), Becinski, and George Luhrs 
(Bowers's attorney).

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No. 41362-1-II

reconsideration because the calculations were "in the realm of speculation" and not suitable for 

trial.  VRP (May 28, 2010) at 64.

                                     B.  Enhanced Injuries

       Before the trial court granted summary judgment, Bowers presented the declaration of 

Colin Daly, an expert in biomechanical engineering, which included the medical consequences of 

varying impacts on the human brain.  Daly reviewed the sheriff department's investigative reports 

and accident scene photos, Bowers's medical record, and the damaged Subaru.  He assumed that 

the impact causing Bowers's head injury resulted from a collision in which Marzano's truck hit 

the Subaru at a 270-degree angle with the truck traveling 41 mph at impact and that the vehicles 

rotated and ended up in their resting positions as shown in the accident photos.

       From these observations, Daly determined that Bowers sustained a level 3.5 closed head 

injury on the Abbreviated Injury Scale (AIS), which corresponds to moderate permanent 

neurological consequences.  Daly further calculated the severity of Bowers's injuries had Marzano 

been traveling at lesser speeds: AIS 1.6 (minor concussion with no permanent effects) at 35 mph; 

AIS 0.3 (very slight dizziness) at 30 mph; AIS