Gilberto Cantu v. Adams County

G
                                                             FILED
                                                         NOVEMBER 17, 2020
                                                      In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

GILBERTO CANTU, a single person,             )         No. 37149-2-III
                                             )
                     Appellant,              )
                                             )
              v.                             )         UNPUBLISHED OPINION
                                             )
ADAMS COUNTY, ADAMS COUNTY                   )
SHERIFF’S DEPARTMENT, SHERIFF                )
DALE J. WAGNER, and DEPUTY                   )
DARRYL BARNES,                               )
                                             )
                     Respondents.            )

       LAWRENCE-BERREY, J. — Gilberto Cantu brought suit to recover damages for an

ankle injury he sustained while fleeing on his bicycle and being unintentionally struck by

Deputy Darryl Barnes’s patrol car. The trial court dismissed Cantu’s suit on summary

judgment. We affirm.

                                         FACTS
       Domestic dispute

       On April 3, 2015, the Adams County Sheriff’s Office received a call about a man

beating up a woman in a homeless encampment in Othello, Washington. The caller told

dispatch “he believed the male was going to kill the female.” Clerk’s Papers (CP) at 65.
No. 37149-2-III
Cantu v. Adams County


Sheriff’s deputies arrived on the scene and found the woman, who reported that Gilberto

Cantu had assaulted her.

       Pursuit, collision, and arrest

       The next morning, Deputy Darryl Barnes saw a report noting there was probable

cause to arrest Cantu for assault.1 Around 1:00 p.m., Deputy Barnes saw Cantu, who he

knew from previous encounters, riding his bicycle near a local motel. Deputy Barnes

activated his patrol lights and used his car’s public address system to order Cantu to stop.

The patrol car’s video shows what happened.

       Cantu continued biking, weaving through parking lots and public streets. Deputy

Barnes followed Cantu, activated his audible siren, repeatedly ordered Cantu to stop, and

radioed for backup.

       Cantu rode south on a public street, then doubled back into a gravel parking lot. A

berm separated the gravel lot from an adjacent lot. Cantu rode toward the berm and

Deputy Barnes followed close behind, but slightly to Cantu’s right. As they approached

the berm, Cantu veered in front of the patrol car. Deputy Barnes braked sharply, trying to


       1
          Deputy Barnes’s declaration states he “had seen documents related to the
probable cause incident prior to going out on patrol on April 4, 2015.” CP at 56. He
attaches several police reports to his declaration. This implies he was aware of the facts
in all of the attached reports. The implication is disingenuous, given that only one of the
reports was prepared by the morning of April 4.

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No. 37149-2-III
Cantu v. Adams County


avoid colliding with Cantu. The patrol car skidded on the gravel into Cantu, knocking him

to the ground. Deputy Barnes got out of his car and found Cantu’s bicycle partially

underneath his left bumper and Cantu laying on the ground a few feet away complaining

of pain. Cantu sustained a small hairline fracture in his right foot as a result of the

collision. After medical personnel cleared Cantu, he was jailed on various charges.

         Cantu filed suit against Adams County, the sheriff’s department, Sheriff Dale

Wagner, and Deputy Barnes, alleging negligent driving and training, as well as liability

based on agency and respondeat superior.

         Deposition and expert testimony

         At Deputy Barnes’s deposition, he explained the moments leading up to the

collision: “And as I was focusing on the berm, I could see [Cantu] coming into my

periphery. So I go from my gas to the brake. The car slides. He goes out of view. I back

my car up and make contact with him to take him into custody.” CP at 112. At Cantu’s

deposition, he admitted he knew Deputy Barnes was trying to arrest him. He did not deny

veering his bicycle in front of the patrol car, but said he did not know the patrol car was

close.

         Adams County’s expert witness, Earl Howerton, opined:




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No. 37149-2-III
Cantu v. Adams County


      4.     . . . Deputy Barnes was not negligent while operating his patrol car in
             pursuit of Mr. Cantu. In addition, it was reasonable for Deputy
             Barnes to stop and contact Mr. Cantu in an attempt to arrest him and
             follow him safely until Deputy Barnes could get Mr. Cantu to stop.
             Deputy Barnes’ actions in pursuing and attempting to detain Mr.
             Cantu were consistent with standard police practices and the Sheriff
             Department’s protocols.
      5.     The evidence in this case shows that Deputy Barnes had insufficient
             time to react and avoid Mr. Cantu’s bicycle when it veered into the
             path of Deputy Barnes’ police cruiser.

CP at 41. Cantu did not hire an expert to rebut Mr. Howerton’s opinion.

      After the parties completed discovery, the defendants successfully moved for

summary judgment dismissal of Cantu’s various claims. This appeal followed.

                                      ANALYSIS

      NEGLIGENCE: DEPUTY BARNES2

      Cantu contends summary judgment was inappropriate because genuine issues of

material fact exist as to whether Deputy Barnes was negligent. We disagree.

      We review an order granting summary judgment de novo, conducting the same

inquiry as the trial court. Pac. Nw. Shooting Park Ass’n v. City of Sequim, 

158 Wash. 2d 342

, 350, 

144 P.3d 276

(2006). Summary judgment is a burden-shifting scheme, where



      2
        Cantu does not argue how the trial court erred in summarily dismissing his
negligent training claim. We deem that claim abandoned on appeal. Podbielancik v. LPP
Mortg. Ltd., 

191 Wash. App. 662

, 668, 

362 P.3d 1287

(2015).

                                            4
No. 37149-2-III
Cantu v. Adams County


the “moving party is entitled to summary judgment if it submits affidavits establishing it

is entitled to judgment as a matter of law.” Rangers Ins. Co. v. Pierce County, 

164 Wash. 2d 545

, 552, 

192 P.3d 886

(2008). The party opposing summary judgment must then

“‘set[ ] forth specific facts which sufficiently rebut the moving party’s contentions and

disclose the existence of a genuine issue as to a material fact.’”

Id. (quoting Meyer v.

Univ. of Wash., 

105 Wash. 2d 847

, 852, 

719 P.2d 98

(1986)).

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

(2) a breach of that duty, (3) proximate cause, and (4) resulting injury.

Id. “If any of

these elements cannot be met as a matter of law, summary judgment for the defendant is

proper.”

Id. at 553.

Breach and proximate cause are usually factual questions for the

jury, but they may be resolved at summary judgment if reasonable persons could reach

only one conclusion from the evidence, together with all reasonable inferences therefrom,

viewed in the nonmoving party’s favor. Hartley v. State, 

103 Wash. 2d 768

, 775, 

698 P.2d 77

(1985).

       Here, Cantu has failed to establish breach of duty. He contends Deputy Barnes

was traveling too fast for the gravelly conditions to avoid colliding into him. Cantu cites

RCW 46.61.400, which provides:




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No. 37149-2-III
Cantu v. Adams County


       No person shall drive a vehicle on a highway at a speed greater than is
       reasonable and prudent under the conditions and having regard to the actual
       and potential hazards then existing. In every event speed shall be so
       controlled as may be necessary to avoid colliding with any person, vehicle
       or other conveyance on or entering the highway in compliance with legal
       requirements and the duty of all persons to use due care.

       This statute does not apply. The collision occurred in a gravel parking lot, not on a

public road. Nor was Deputy Barnes traveling too fast for conditions. He was following

slowly because Cantu was on a bicycle. Reasonable persons can only conclude that

Deputy Barnes did not travel too fast for conditions and, thus, did not breach any duty.

       In addition, Cantu has failed to establish proximate cause.

               Proximate cause, in part, involves the concept of superseding
       causation. An act generally is a proximate cause of an injury if it produces
       the injury. [I]f a new, independent intervening act breaks the chain of
       causation, it supersedes the defendant’s original act and the original act is
       no longer the proximate cause of the injury. Whether an act may be
       considered a superseding cause sufficient to relieve a defendant of liability
       depends on whether the intervening act can reasonably be foreseen by the
       defendant; only intervening acts that are not reasonably foreseeable are
       deemed superseding causes. Unforeseeable intervening acts break the chain
       of causation.

Sluman v. State, 

3 Wash. App. 2d

656, 702, 

418 P.3d 125

, review denied, 

192 Wash. 2d 1005

,

430 P.3d 254

(2018) (citations omitted).

       Cantu veered his bicycle in front of Deputy Barnes’s patrol car. This caused

Deputy Barnes to immediately brake and skid into Cantu. Cantu does not explain how


                                             6
No. 37149-2-III
Cantu v. Adams County


Deputy Barnes could have foreseen a bicycle veering into his path of travel. A reasonable

person could only conclude that Deputy Barnes could not have reasonably foreseen this.

Cantu's action was the superseding cause of his own injury.

       We conclude that the trial court did not err by dismissing Cantu's negligence

claims. And because Deputy Barnes was not negligent, Cantu's agency and respondeat

superior claims also were properly dismissed.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Lawrerice-Berrey:J.                )
                                                                             j
WE CONCUR:



 Q.                'c..~
Pennell, C.J.




                                             7

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