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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 JULIA S. SINEX, as Personal 
 Representative of the estate of                  )         No. 66916-8-I
 MATTHEW RICHARD HOWARD, and on 
 behalf of DYLAN DAVID HOWARD, the                )         DIVISION ONE
 surviving son of Matthew Richard Howard,
                                                  )         UNPUBLISHED OPINION
                       Appellant,
                                                  )
                v.
                                                  )
 WILLIAM L. BICE and SUSAN E. BICE, 
 husband and wife and the marital                 )
 community composed thereof, and 
 LANDMASTER CORPORATION, d/b/a                    )
 THE BATHTUB DOCTOR, a Washington 
 corporation,                                     )

                       Respondents.               )         FILED: May 21, 2012

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.  --  Sinex appeals from the summary judgment order dismissing her 

action for the wrongful death of Matthew Howard.  She argues there was a genuine  

No. 66916-8-I/2

issue of material fact as to causation.  No direct evidence establishes causation.  The 

circumstantial evidence relied upon is speculative and is insufficient to establish prima 

facie proximate cause. The trial court properly granted summary judgment.  We affirm.

                                            FACTS

       Matthew Howard lived in a second floor duplex apartment with his girlfriend, 

Julia Sinex, and their nine month old son, Dylan Howard.  William and Susan Bice 

owned the apartment.  On the night of November 14, 2008, at approximately 1:00 a.m., 
Howard went outside to smoke a cigarette.1       Shortly after, Sinex heard a loud thumping 

noise.  She went outside and found Howard lying at the bottom of the stairs with blood 

on the ground near his head.  At that time, he was unable to speak and could not tell 

her what had happened.  Sinex called 911 and responders from the Redmond Fire 

Department arrived at approximately 2:00 a.m.  

       Howard suffered a traumatic brain injury.  A toxicology study performed at the 

hospital around 3:15 a.m. revealed that his blood alcohol level was .013.  Later, he 

would report to medical providers that he had no memory of the accident, the events 

immediately leading up to it, or the 36 hours afterwards.  Howard remembered that he 

had several beers prior to the accident.     In her declaration, Sinex testified she believed 

him to be acting normally, unaffected by alcohol.  On April 2, 2009, some five months 

after the accident, he died due to an overdose of prescription medications.  

       In October 2008, the month before the accident, the Bices had contracted with 

the Landmaster Corporation to do some work at the duplex, including the repair and 

replacement of the exterior stairs.  Sinex stated that after the work was done, the stairs 

       1 The original complaint alleged the accident occurred at 11:45 p.m.  

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No. 66916-8-I/3

were oddly shaped and different from what had been there before.  Landmaster, by 

contrast, submitted a declaration from the individual hired to do the repair work, in 

which he stated that he simply replaced rotting wood with identically configured good 

wood.  He declared that the replacement stairs, including the treads and handrail, were 

built in exactly the same manner and design as the earlier stairs.  In addition to her own 

testimony about the stairs, Sinex also presented declarations                from  two  expert 

witnesses, both human factors consultants, supporting her assertion that the stairs 

violated applicable safety standards.  The declarations point to three defective 

conditions that increased the risk of someone falling on the stairs:  inadequate lighting, 

a handrail that violated applicable code, and irregular measurements of the stairs' 

risers and runs in violation of safety standards.  

       Sinex brought this wrongful death action in December 2009.  The Bices and 

Landmaster both filed motions for summary judgment, based on Sinex's failure to 

establish prima facie proximate cause.  The trial court granted those motions.  

                                        DISCUSSION

       This court reviews summary judgment orders de novo.  Hadley v. Maxwell, 144 

Wn.2d 306, 310-311, 27 P.3d 600 (2001).  Summary judgment is proper only when 

there are no genuine issues of material fact and the moving party is entitled to 

judgment as a matter of law.  CR 56(c); Peterson v. Groves, 111 Wn. App. 306, 310, 44 

P.3d 894 (2002).  We review the facts, and reasonable inferences drawn from the facts, 

in the light most favorable to the nonmoving party.  CTVC of Haw., Co. v. Shinawatra, 

82 Wn. App. 699, 708, 919 P.2d 1243, 932 P.2d 664 (1996).  

       A defendant moving for summary judgment may meet its burden by showing that 

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No. 66916-8-I/4

there is an absence of evidence to support the nonmoving party's case.  Howell v. 

Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d 1056 (1991).  

Once that burden is met, the burden shifts back to the plaintiff to show more than "[t]he 

mere existence of the accident."  See Las v. Yellow Front Stores, Inc., 66 Wn. App. 

196, 198-99, 831 P.2d 744 (1992).  If a plaintiff fails to make a showing sufficient to 

establish the existence of an element essential to that party's case, the trial court 

should grant the motion for summary judgment.  Hiatt v. Walker Chevrolet Co., 120 

Wn.2d 57, 66, 837 P.2d 618 (1992).  "'[A]  complete  failure of proof concerning an 

essential element of the nonmoving party's case necessarily renders all other facts 

immaterial.'"  Id. (internal quotation marks omitted) (quoting Young v. Key Pharms., 

Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)).  

       In a negligence claim, the plaintiff must establish the existence of (1) a duty, 

owed by the defendant to the plaintiff, to conform to a certain standard of conduct; (2) a 

breach of that duty; (3) a resulting injury; and (4) proximate cause between the breach 

and the injury.  Cameron v. Murray, 151 Wn. App. 646, 651, 214 P.3d 150 (2009).  

       The trial court granted summary judgment based solely on the fourth factor.  The 

defendants'  motions for summary judgment simply asserted                that Sinex failed to 

establish that the stairs were the proximate cause           of Howard's injury.  We  thus 

presume that Sinex successfully established a genuine issue of material fact as to the 

first three factors and they are not at issue here.  It is undisputed that Howard suffered 

injury, and that defendants owed some duty of reasonable care in building or repairing 

the stairs.  And Sinex's expert witnesses established that the stairwell failed to conform 

to safety standards with regards to lighting, the hand rail, and the regularity of the 

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No. 66916-8-I/5

stairs' rise and run.  Thus, the sole question before us is whether Sinex established a 

genuine issue of material fact as to causation.

       Circumstantial evidence is sufficient to establish a prima facie case of 

negligence, if it affords room for reasonable minds to conclude that there is a greater 

probability that the conduct relied upon was the proximate cause of the injury than 

there is that it was not.  Hernandez v. W. Farmers Ass'n, 76 Wn.2d 422, 426, 456 P.2d 

1020 (1969).  But, the nonmoving party may not rely on mere speculation or 

argumentative assertions that unresolved factual issues remain.  Marshall v. Bally's 

Pacwest, Inc., 94 Wn. App. 372, 377, 972 P.2d 475 (1999).  A cause of action may be 

said to be speculative when, from a consideration of all of the facts, it is as likely that it 

happened from one cause as another.  Rasmussen v. Bendotti, 107 Wn. App. 947, 

959, 29 P.3d 56 (2001).  In this case, we are left with no direct evidence about the 

cause of Howard's fall.  It is undisputed that there was no witness to Howard's accident.  

He could recall nothing of the event, and Sinex did not find him until afterwards.  Many 

things could have caused the fall.  Sinex attempts to draw an inference of causation

from the defects in the stairwell and the claims by the expert witnesses that defects 

make it more likely someone using the stairs will fall.  The defendants respond that this 

inference is mere speculation, insufficient to establish an unresolved issue of material 

fact.  

       Marshall is on point.  In that case, the plaintiff was injured while exercising on a 

treadmill at her health club.  Marshall, 94 Wn. App. at 375.  She alleged the treadmill 

was defective and malfunctioned, starting suddenly at a fast pace and throwing her off, 

causing her to sustain a head injury.  Id.  Because of that injury, she had a two week 

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No. 66916-8-I/6

lapse in memory and had no recollection of the accident.  Id. at 375-76.  The trial court 

granted the defendants' motions for summary judgment, finding that Marshall failed to 

show that a defect in the machine was the proximate cause of her fall.  Id. at 376.  The 

reviewing appellate court concluded:

       Without any memory of the accident, Marshall simply offers a theory as to 
       how she sustained her injuries.  But a verdict cannot be founded on mere 
       theory or speculation.  

              [I]f there is nothing more tangible to proceed upon than two 
              or more conjectural theories under one or more of which a 
              defendant would be liable and under one or more of which a 
              plaintiff would not be entitled to recover, a jury will not be 
              permitted to conjecture how the accident occurred.  

       In short, Marshall provides no evidence that she was thrown from the 
       machine, what caused her to be thrown from the machine, or how she was 
       injured.  Given this failure to produce evidence explaining how the 
       accident occurred, proximate cause cannot be established.  Because 
       Marshall did not produce evidence of proximate cause, she failed to 
       produce evidence sufficient to withstand summary judgment.

Id. at 379-80 (citation omitted) (footnote omitted) (quoting Gardner v. Seymour, 27 

Wn.2d 802, 809, 180 P.2d 564 (1947)).

       The facts of this case are comparable to those in Marshall.            Howard had no 

memory of the accident, and there were no witnesses.  He never indicated to anyone 

that he fell because of any condition of the stairs or the lighting.  While Sinex heard a 

noise that sounded like falling to her, that goes to how the injuries occurred, not why.  

The noise reveals nothing about the cause of the fall.

       Sinex attempts to distinguish Marshall, claiming that in that case there was no 

examination conducted of the treadmill, but in this case her experts examined the 

stairwell shortly after the accident and discovered defects.  The expert testimony was 

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No. 66916-8-I/7

that the stairwell violated safety standards and building code provisions, posed a 

hazardous condition to users, and thus more probably caused Howard's accident.  The 

absence of an inspection in Marshall confirming the existence of a defect was not 

determinative.  In Marshall and in Gardner, it was mere conjecture that a defect could 

have caused the fall.    In those cases and here, absent any direct evidence of what in 

fact caused the fall, an assertion that a defect was the proximate cause amounts to but 

one possible theory for how the injuries were sustained.  

       The  Bices and Landmaster point out numerous other similarly  conjectural 

theories under which the defendants would not be liable.  For example, Howard could 

have been lighting a cigarette and distracted, or he could have bent to tie a shoelace or 

pick up a dropped item and lost his balance.  Another possible theory is that Howard 

could have fallen while on the top landing at the second story.  As Sinex conceded at 

oral argument, there was no evidence or assertion that the landing above the stairs 

was defective.  If Howard fell on or from the landing, any defect in the stairs would not 

be a proximate cause of his injuries.  Sinex argues there is no evidence he was tying a 

shoelace, or bent to pick up a dropped item.  But, the same can be said in response to 

her theory -- there is no evidence that places Howard on the stairs at the time of the fall.  

While many things could have caused the fall and injuries, on these facts nothing 

makes any one cause more likely than not.

       Sinex's theory is speculative as to proximate cause.  Absent a prima facie 

showing of proximate cause, the trial court properly granted summary judgment in favor 

of the defendants.  We affirm.

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No. 66916-8-I/8

WE CONCUR:

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