Soeun Am, Et Ano., Apps/cross-resps V. State Of Washington, Et Al, Resps/cross-apps

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

FILED
4/19/2021
Court of Appeals
Division |
State of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SOEUN A\M, a single individual, and

KHEAM CHEA\M, a single individual, DIVISION ONE
Appellants/Cross-Respondents, No. 80596-7-I
V. UNPUBLISHED OPINION

THE ESTATE OF DILLON K. O’BRIEN,
and the STATE OF WASHINGTON, its
subdivisions and agencies, and the
WASHINGTON STATE PATROL,

Respondents/Cross Appellants.

Dwyer, J. — Soeun Am and Kheam Cheam appeal from the trial court’s
orders (1) entering final judgment in favor of the State of Washington with regard
to several negligence claims, and (2) denying their motion for a new trial. At trial,
Am and Cheam claimed that the Washington State Patrol, among other things,
negligently failed to cause the activation of a message on highway reader boards
to warn oncoming traffic of a wrong-way driver before that driver collided with
Am’s vehicle. Pursuant to a motion for judgment as a matter of law, the trial
court ruled that insufficient evidence was adduced at trial to support a finding that
the Washington State Patrol’s failure to cause the activation of a warning on
highway reader boards was a factual proximate cause of the injuries sustained
by Am and Cheam. On appeal, Am and Cheam challenge that ruling. Finding no

error, we affirm.

No. 80596-7-I/2
2
I
On May 17, 2015, at approximately 3:57 a.m., a vehicle driven by Dillon
O’Brien was traveling eastbound in the westbound lanes of Interstate 90 and
collided with a westbound vehicle driven by Soeun Am. Am’s mother, Kheam
Cheam, was a passenger in Am’s vehicle. At the time of the collision, O’Brien
was under the influence of alcohol and marijuana. O’Brien died as a result of the
collision. Both Am and Cheam suffered severe injuries in the collision.
Approximately 26 minutes before the collision, at 3:31 a.m., a concerned
citizen telephoned 911 and reported an erratic driver who was driving eastbound
in the eastbound lanes of I-90 near milepost 38. Upon receiving the report, a
Washington State Patrol (WSP) dispatcher broadcasted the report over a WSP
radio frequency. At 3:32 a.m., state Trooper Theodore Hahn acknowledged the
broadcast by reciting his badge number. At this time, Trooper Hahn was the only
trooper on duty in his autonomous patrol area.1
When Trooper Hahn received the broadcast, he was located in a state
patrol detachment office in Bellevue near milepost 11. Trooper Hahn was
working on a work-related incident report. After receiving the broadcast, Trooper
Hahn did not depart from the detachment office in order to search for the
eastbound driver. He made this decision, the trooper testified, because, based
on his training and experience, “trying to chase down an erratic driver is
something that’s very, very hard to locate.” Trooper Hahn reasoned that, by the
1 According to trial testimony, an “autonomous patrol area” is “the area to which an officer
is assigned.” The autonomous patrol area to which Trooper Hahn was assigned spanned from
milepost 3.33 in Seattle to milepost 54.69 at Hyak near Snoqualmie Pass.

No. 80596-7-I/3
3
time he would have been able to reach the vehicle’s location, “there is a number
of places it could either turn around or exit.” In the meantime, Trooper Hahn was
positioned in a “major metropolitan area” where he was “centrally located to
answer calls where the majority of the calls come out at that time of night.” In
short, the trooper concluded that, given that he was alone on the shift, it was
most prudent to remain in Bellevue and complete the report.
Twelve minutes after the first report, at 3:43 a.m., a state patrol dispatcher
received a report of a wrong-way driver heading eastbound in the westbound
lanes of I-90 near milepost 38. At 3:44 a.m., the dispatcher notified Trooper
Hahn of the report. Upon being notified of the existence of a wrong-way driver,
Trooper Hahn immediately left the detachment office in order to pursue the
wrong-way vehicle.
Also at 3:44 a.m., a state patrol dispatcher received another report, which
indicated that the wrong-way driver had now been seen at milepost 46.2 Next, at
3:46 a.m., another report was received, placing the wrong-way driver at milepost
47. Then, at 3:47 a.m., a report was received that placed the wrong-way driver
at milepost 48. And at 3:50 a.m., another report was received that placed the
wrong-way driver at milepost 50.
2 At trial, a state patrol dispatcher testified—with regard to the 3:43 a.m. report that
placed the wrong-way driver at milepost 38—that it was “possible that the original location was
misunderstood or inaccurate from the caller.”

No. 80596-7-I/4
4
At 3:57 a.m., a state patrol dispatcher received a report of a collision in the
westbound lanes of I-90. The collision occurred between mileposts 53 and 54.3
The state patrol dispatcher received the report from a Kittcom dispatcher.4
At 4:14 a.m., 30 minutes after leaving the Bellevue detachment office,
Trooper Hahn arrived at the scene of the collision. On his way there, Trooper
Hahn drove his patrol vehicle at an average speed of approximately 95 miles per
hour.
At 4:34 a.m., a Kittcom dispatcher requested that the Washington State
Patrol contact the Department of Transportation (DOT) to request activation of a
message on highway reader boards to warn oncoming traffic of the collision.5 At
4:42 a.m., Trooper Christine White contacted a state patrol dispatcher, Donna
Warren, and informed Warren that the DOT had not yet activated a message on
the reader boards. A recording of the exchange between Trooper White and
dispatcher Warren was presented to the jury at trial:
Trooper White: 	Can you have DOT maybe put something up
on the reader boards? There’s nothing coming
3 A state patrol dispatch report generated by a WSP dispatcher, provided the location of
the collision as follows:
DETAILS: TWO CAR FATALITY COLLISION INVOLVING WRONG WAY
VEHICLE. ALL WESTBOUND LANES BLOCKED.
LOCATION: WESTBOUND I90 JUST WEST OF MILEPOST 54 KITTITAS
COUNTY 22 MILES EAST OF NORTH BEND
4 Kittcom is the 911 dispatch center for Kittitas County emergency communications.
5 An entry on a state patrol dispatch report provided: “04:34 KITTCOM REQ HAVE DOT
PUT UP ON READERBOARDS TO EXIT TO 54.” Testimony from a state patrol dispatcher
explained the meaning of this entry in the following exchange:
Q. . . . . So tell us what that entry means from 4:34.
A. That Kittcom is requesting that we advise DOT to indicate on the
reader board that there is a collision, and that traffic needs to exit at 54, or Exit
54.
Q. Okay, and so according to the [dispatch] log, at least, that request is
being made at 4:34 in the morning?
A. Yes.

No. 80596-7-I/5
5
up westbound that advises you that the road
will be closed.
Warren: 	They were advised to put up on the reader
boards for all traffic to exit westbound.
Trooper White: 	Yeah they haven’t done so. There’s nothing
up.
Warren: 	I’ll call them back. Four forty two.
A state patrol dispatcher testified that, when Warren stated “four forty two,”
she was referring to the then-current time. Thus, the exchange between Trooper
White and Warren indicates that the DOT had initially received a request to
program a warning on highway reader boards sometime before 4:42 a.m.
At 5:20 a.m., an entry on a state patrol dispatch log indicated that the DOT
had activated a message on two reader boards—located at mileposts 54 and
61—which provided, “ALL VEHS MUST EXIT.”6 No evidence was adduced at
trial demonstrating that a message on the highway reader boards had been
activated at any time prior to 5:20 a.m.
On May 17, 2017, Am and Cheam filed a complaint against the estate of
Dillon O’Brien and the State of Washington. The complaint alleged, among other
things, that employees and agents of the State of Washington owed a duty of
care to “warn Plaintiffs of potential hazards on the state-regulated highway.”
According to the complaint, the State “negligently breached” this duty and, as “a
6 In particular, an entry on a state patrol dispatch report provided: “05:20 DOT ADV
CURRENTLY HAVE SIGNS DIVERTING TRF AT MP61 AND MP54 READS ‘ALL VEHS MUST
EXIT.’” A state patrol dispatcher testified with regard to the meaning of this entry as follows:
Q. Now, what you still have in front of you there, [defense exhibit] 110,
would you continue to look through that and tell me if you can find any entry
indicating that DOT has been able to change the reader boards?
A. At 0520.
Q. Do you see any indications before 5:20 that the reader boards had
been changed?
A. No.

No. 80596-7-I/6
6
direct and proximate cause of [the State’s] breach of the duty of care,” Am and
Cheam “suffered, and continue to suffer, from physical and emotional injuries.”
The case proceeded to a jury trial. During the trial, Am and Cheam
adduced evidence that, pursuant to a Washington State Snoqualmie Pass
closure plan, the Washington State Patrol was expected to contact the DOT in
order to activate warnings on highway reader boards when “inclement weather”
impacted highway conditions.7
Am and Cheam also elicited testimony from expert witness Donald Van
Blaricom, a retired chief of police. Van Blaricom testified that a 2012 report from
the National Highway Transportation Safety Board recommended that, when a
wrong-way driver is located on a highway, law enforcement agencies should
contact the “Department of Transportation[] to program their reader boards to
warn oncoming traffic that they have a wrong-way driver coming in their
direction.” Van Blaricom additionally testified that the Washington State Patrol
had not adopted any training or policy to instruct state troopers on how to utilize
highway reader boards in order to warn oncoming traffic of a wrong-way driver.
At the close of the evidence, the State moved for judgment as a matter of
law. With regard to the claim that the State was negligent for failing to cause to
be activated a message on highway reader boards in order to warn oncoming
7 According to the Snoqualmie Pass closure plan:
DOT and WSP will activate “Variable Message Signs” (VMS), informing and
directing motorists about the existing conditions.
 	Variable message signs are located both east- and westbound on I-90
from Milepost 34 near North Bend to Milepost 71 at Easton. The sign
messages are entered at Hyak DOT and individual messages can be
entered on each sign.
Trooper Hahn testified that this plan applies when there is “inclement weather”
during “the winter months.”

No. 80596-7-I/7
7
traffic of the wrong-way driver, the State argued that insufficient evidence
supported a finding of factual proximate cause:
[DEFENSE COUNSEL]: In pointing out that on this morning
it took an hour for it to happen so it could have made no difference,
and there’s no evidence as to how long does it take – let’s say they
make the request as soon as they hear about the wrong-way driver
at 3:43. Say they make it right away. It’s 14 minutes later when the
report of the collision comes in. There is no evidence in the record
to suggest that DOT gets a sign changed within 14 minutes.
The trial court partially granted the State’s motion for judgment as a matter
of law, ruling that insufficient evidence was introduced from which a jury could
find that the State’s failure to request DOT to activate a warning on the highway
reader boards was a factual proximate cause of the injuries sustained by Am and
Cheam:
[T]he Court will find that there is insufficient evidence to allow a jury
to make a reasonable inference here that the reader boards were a
proximate cause of this -- or the lack of information on the reader
boards was a proximate cause to this injury, and so the Court will
preclude any argument related to the reader boards being causally
related to this accident.
The jury returned a verdict finding that the State was not negligent with
respect to any of the claims advanced by Am and Cheam.8 Am and Cheam
subsequently filed a motion for a new trial. In the motion, Am and Cheam
claimed that the trial court erred by ruling that insufficient evidence supported a
finding that the State’s failure to cause to be activated a warning on the highway
reader boards was a factual proximate cause of their injuries. Additionally, Am
8 The jury did, however, find that Dillon O’Brien was negligent and that his negligence
was a proximate cause of the injuries sustained by Am and Cheam. The jury assessed damages
with respect to Cheam as amounting to $217,071.24. Additionally, the jury assessed damages
with respect to Am as amounting to $10,400,000.

No. 80596-7-I/8
8
and Cheam asserted that the State improperly argued during closing argument
that any failure to activate a warning on the reader boards was not a proximate
cause of their injuries. The trial court denied the motion for a new trial.
Am and Cheam appeal.
II
Am and Cheam contend that the trial court erred by ruling, as a matter of
law, that the State’s failure to request DOT to activate a message on highway
reader boards in order to warn oncoming traffic of the wrong-way driver was not
a factual proximate cause of their injuries. We disagree.
We review a trial court’s ruling on a motion for judgment as a matter of law
de novo, applying the same legal standard as the trial court. Hawkins v. Diel,
166 Wn. App. 1, 13, 269 P.3d 1049 (2011). Additionally, we may affirm the trial
court on any ground established by the pleadings and supported by the
record. Linth v. Gay, 190 Wn. App. 331, 336, 360 P.3d 844 (2015). “Granting a
motion for judgment as a matter of law is appropriate when, viewing the evidence
most favorable to the nonmoving party, the court can say, as a matter of law,
there is no substantial evidence or reasonable inference to sustain a verdict for
the nonmoving party.” Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d
816 (1997). The applicable court rule provides that a motion for judgment as a
matter of law may be granted
[i]f, during a trial by jury, a party has been fully heard with respect to
an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find or have found for that party with respect to
that issue, the court may grant a motion for judgment as a matter of
law against the party on any claim, counterclaim, cross claim, or

No. 80596-7-I/9
9
third party claim that cannot under the controlling law be maintained
without a favorable finding on that issue.
CR 50(a)(1).
Proximate cause has two elements: cause in fact and legal causation.
“Cause in fact refers to the ‘but for’ consequences of an act—the physical
connection between an act and an injury.” Hartley v. State, 103 Wn.2d 768, 778,
698 P.2d 77 (1985). Ordinarily, cause in fact is a question for the jury to
decide. Hartley, 103 Wn.2d at 778. However, the court may decide this question
as a matter of law when “the causal connection is so speculative and indirect that
reasonable minds could not differ.” Doherty v. Mun. of Metro. Seattle, 83 Wn.
App. 464, 469, 921 P.2d 1098 (1996). “‘The cause of an accident may be said to
be speculative when, from a consideration of all the facts, it is as likely that it
happened from one cause as another.’” Jankelson v. Sisters of Charity of House
of Providence in Territory of Wash., 17 Wn.2d 631, 643, 136 P.2d 720 (1943)
(quoting Frescoln v. Puget Sound Traction, Light & Power Co., 90 Wash. 59, 63,
155 P. 395 (1916)). Put differently,
if 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.
Gardner v. Seymour, 27 Wn.2d 802, 809, 180 P.2d 564 (1947).
Am and Cheam assert that that the “jury could reasonabl[y] have
determined that the [Washington State Patrol]’s failure to adopt and implement
policies in the first instance to warn motorists of wrong-way drivers was the
proximate cause of the collision.” Additionally, Am and Cheam contend that “the

No. 80596-7-I/10
10
jury could have surmised from the evidence that if the [Washington State Patrol]
can promptly warn motorists of fast changing weather conditions and pass
closures in a very short time frame, they certainly could have quickly posted
warnings of the wrong-way driver.”
However, under either of these theories, insufficient evidence was
adduced at trial to establish that a warning on the highway reader boards could
have been activated in time for Am to have noticed the warning and avoided the
collision. Notably, the record does not contain any evidence regarding the
process utilized by the DOT to program messages on highway reader boards.9
In the absence of such evidence, we must resort to the evidence adduced at trial
regarding how long the DOT actually took to program the reader boards after the
collision had already occurred. This is the only evidence of this type in the trial
record.
At 4:34 a.m., a Kittcom dispatcher requested that the Washington State
Patrol contact the DOT and request DOT to activate a warning message on the
I-90 reader boards. At 4:42 a.m., Trooper White contacted Warren, a state patrol
dispatcher, and requested Warren to “have DOT maybe put something up on the
reader boards.” Warren responded that “they were advised to put up on the
reader boards for all traffic to exit westbound” and that she would “call them
back.” Thus, the evidence adduced at trial indicates that the DOT had been
9 To the contrary, Van Blaricom testified that he did not have an understanding of the
procedures utilized by the DOT to program messages on highway reader boards:
Q. And do you understand . . . how DOT engages the warning signs on
these roadway warnings?
A. I don’t know how they program them, no.

No. 80596-7-I/11
11
initially requested to program a message on the I-90 reader boards sometime
between 4:34 a.m. and 4:42 a.m.
The evidence in the record indicates that the DOT did not actually activate
such a message on the I-90 reader boards until 5:20 a.m. Assuming that the
DOT was initially requested to activate the highway reader boards by 4:41 a.m.
(which was immediately before Warren informed Trooper White that the DOT had
already been requested to activate a message on the reader boards), then 39
minutes elapsed between the request being made and the message on the
reader boards being activated.
The evidence in the case is that the Washington State Patrol was not
informed of the wrong-way driver in the westbound lanes of I-90 until 14 minutes
before the collision was reported.10 Assuming that Am was driving at a speed of
60 miles per hour, his vehicle would have been located somewhere between
mileposts 67 and 68 when the Washington State Patrol was initially informed of
the wrong-way driver.11 Moreover, the evidence adduced at trial indicates that
the nearest highway reader boards were located at mileposts 54 and 61.
Therefore, in order for Am to have seen any warning on the I-90 reader
board located at milepost 61, the DOT would have had to program and activate a
message on that reader board in less than 7 minutes from the time of the
10 A wrong-way driver was initially reported at 3:43 a.m. The collision was reported at
3:57 a.m. Thus, 14 minutes elapsed between the initial report of a wrong-way driver and the first
report of the collision.
11 According to a state patrol incident report, the collision occurred “JUST WEST OF
MILEPOST 54.” Assuming that Am was driving at a speed of 60 miles per hour—or one mile per
minute—his vehicle would have been located between mileposts 67 and 68 when the Washington
State Patrol was initially informed of a wrong-way driver (54 + 14 = 68). Of course, this assumes
that the collision was reported immediately after it occurred.

No. 80596-7-I/12
12
Washington State Patrol initially being informed of a wrong-way driver.12
Additionally, in order for Am to have noticed any warning on the reader board
located at milepost 54, the DOT would have had to program and activate that
message in less than 14 minutes from the time of the initial report of a wrong-way
driver being received.13
Yet there is no evidence in the record demonstrating that a message on
the highway reader boards was capable of being programmed and activated in
less than either 7 or 14 minutes. Rather, the evidence adduced at trial indicates
that, when the DOT was actually requested to activate a warning on the highway
reader boards, the DOT took—at the very least—39 minutes to program and
activate the message.14 No evidence was presented from which a jury could
conclude that the process could be completed, at that time of the day, in any
quantifiably quicker time frame.
Had the jury been permitted to decide the issue of factual proximate cause
with regard to the claims advanced by Am and Cheam concerning the
12 Assuming that Am was driving at a speed of 60 miles per hour, it would have taken Am
less than 7 minutes to travel from a location in between mileposts 67 and 68 to milepost 61.
13 Assuming that Am was driving at a speed of 60 miles per hour, it would have taken Am
less than 14 minutes to travel from a location in between mileposts 67 and 68 to milepost 54. It is
also worth noting that, even if a warning had been activated at milepost 54, it is unclear from the
record whether Am would have had a sufficient amount of time to respond to the warning and
avoid the collision. Indeed, a state patrol incident report provided that the collision occurred
“JUST WEST OF MILEPOST 54.” Thus, Am would have had less than one minute to respond to
any notice on the reader board located at milepost 54 in order to avoid the collision.
14 For this reason, even if the Washington State Patrol had requested the DOT to prepare
to activate a warning on highway reader boards when the initial report regarding an erratic driver
was made, insufficient evidence supported a finding that the DOT would have been capable of
activating a warning on the reader boards in time for Am to have noticed the warning. Indeed, the
initial report of an erratic driver at milepost 38 was received by a state patrol dispatcher at 3:31
a.m. This was 26 minutes before the collision was reported at 3:57 a.m. Moreover, the initial
report of an erratic driver indicated that the driver was heading eastbound in the eastbound lanes
of I-90. Thus, any warning on the reader boards concerning an erratic driver would have been
posted for eastbound (not westbound) traffic. Such a warning would not have been seen by Am.

No. 80596-7-I/13
13
Washington State Patrol’s failure to ask DOT to activate a warning on the I-90
reader boards, the jury would have been left to speculate as to whether the
reader boards were even capable of being activated in the time remaining prior to
the collision. The trial court correctly ruled that insufficient evidence was
introduced to support a jury finding of factual proximate cause.
Accordingly, the motion was properly granted.
III
In their opening brief, Am and Cheam assert that the State improperly
argued during closing argument that any failure to activate a warning on the
highway reader boards was not a proximate cause of the injuries sustained by
Am and Cheam. However, in their reply brief, Am and Cheam state that they
“concede that whether the [State]’s final argument at trial regarding the proximate
cause of the variable message sign was proper, it does not constitute reversible
error.” Accordingly, we consider this assignment of error to be abandoned.
IV
Finally, Am and Cheam contend that the trial court erred by denying their
motion for a new trial. The motion for a new trial was based on the same
assignments of error that we have already addressed. Because Am and Cheam
are not entitled to relief on any of their claims, the trial court’s ruling on the
motion for a new trial was correct.15
15 Moreover, because of the manner in which we have resolved the issues herein, the
judgment on the verdict is affirmed and we need not address any other issues raised by the
parties on appeal.

No. 80596-7-I/14
Affirmed.
1
WE CONCUR:
Mann, C.D.
14