Washington Case Law Update: Inconsistent Testimony Leads to Summary Judgment Against an Injured Tourist

Washington Case Law Update: Inconsistent Testimony Leads to Summary Judgment Against an Injured Tourist From the desk of Tom McCurdy:

Summary judgment is appropriate when a party is unable to provide enough evidence to establish the existence of an essential element of their case. Oftentimes, a party against whom summary judgment is sought will use a declaration to provide enough evidence of the elements of their case. What if a party’s declaration is contradicted by their earlier deposition testimony? Will they still be able to overcome summary judgment? Read on to find out.

Case Pointer: In this personal injury lawsuit, a tourist was injured when she allegedly tripped on a manhole cover in a crosswalk in Seattle. The city filed a motion for summary judgment, arguing that the plaintiff had failed to provide sufficient evidence to create a triable issue of fact as to whether she actually tripped on the manhole. The trial court granted the motion, finding that plaintiff’s self-serving declaration was inconsistent with her earlier testimony and, accordingly, could not be used to establish that she tripped on the manhole cover. The Washington Court of Appeals agreed, affirming the trial court’s disregard of her self-serving declaration due to her inconsistent testimony. Because plaintiff provided no other evidence to show that the manhole cover actually caused her fall, summary judgment was appropriate.
Barbara Arntz v. City of Seattle, Wash. Ct. of App., No. 77504-9-I (February 25, 2019) (unpublished).
In August of 2014, Barbara Arntz (“Plaintiff”), a German citizen, was injured when she tripped and fell in a crosswalk on her way to Pike Place Market in Seattle. About eight months later, she filed a lawsuit against the City of Seattle (the “City”) arguing that she had tripped and fallen because of a defective “sunken” manhole cover.
After depositions, the City filed a motion for summary judgment, arguing that Plaintiff had failed to present sufficient evidence to prove that the manhole cover caused her fall. The City relied on testimony from Plaintiff’s deposition wherein she stated that she didn’t actually know what caused her fall, only that she assumed it was the manhole cover and that she likely tripped on the cover because it was higher than the surrounding pavement.
The City also relied on testimony from Plaintiff’s expert, who had testified that neither the level of the manhole cover nor its rings constituted a trip hazard. Furthermore, the expert couldn’t conclude what part of the manhole cover Plaintiff tripped on because, in his words, Plaintiff herself didn’t know.
In opposition to the City’s motion, Plaintiff filed a newly prepared declaration and a revised report supplied by her expert witness. The new expert report concluded that the manhole cover “appeared to be mismatched with the ring” leaving a slight gap between the cover and the pavement, which constituted a trip hazard. Plaintiff apparently revised her recollection of the events in drafting her declaration in order to reflect the expert’s conclusion, stating (in direct contradiction to her deposition testimony) that she had noticed that the manhole cover was sitting below the surrounding pavement after her fall. The trial court, noting that Plaintiff’s testimony had changed, agreed with the City and granted summary judgment.
Plaintiff appealed, arguing that the trial court erred in failing to find that her declaration and/or the expert report created a genuine issue of material fact as to whether the manhole caused her fall.
The court noted that, because it reviews summary judgment issues de novo, it was required to construe the evidence and reasonable inferences in the light most favorable to Plaintiff. However, the court also noted that “[t]he mere occurrence of an accident and an injury does not necessarily lead to an inference of negligence” and if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case…summary judgement is proper.”
The court began its review of the matter by concluding that Plaintiff was required to supply proof that she tripped on the recessed lid of the manhole cover. From that premise, the court determined that Plaintiff had failed to provide any evidence “that her foot actually made contact with the recessed lid or any other party of the manhole cover.”
First, the court examined Plaintiff’s declaration, finding that “[i]n an apparent effort to reconcile her testimony with [the expert’s] opinion” Plaintiff testified in her declaration facts that were in direct contradiction to her deposition testimony. Unfortunately for Plaintiff, however, “[a] self-serving declaration that contradicts earlier deposition testimony does not create a question of fact for trial.” Accordingly, because the declaration directly contradicted her earlier testimony, her declaration was insufficient to provide proof that the manhole cover caused her fall.
Second, the court concluded that, while the expert’s report did state that the recessed manhole violated industry standards and created a trip hazard, the report did not state that the recessed lid caused Plaintiff to fall. Accordingly, because the expert’s report provided no actual evidence that the manhole caused Plaintiff’s fall, it did not provide sufficient evidence to overcome summary judgment.
Although an expert did testify that the manhole cover posed a trip hazard, Plaintiff provided no evidence to support her theory that the manhole caused her fall. Accordingly, the City prevailed in arguing that Plaintiff had failed to provide any proof that the manhole caused her fall.
NOTE: This opinion has not been published.  It is provided to demonstrate how the court approaches the issues involved in the case. There are limitations on citing unpublished opinions in WA, consult GR14.1(a)-(d) prior to relying on unpublished opinions.
View full opinion at: https://www.courts.wa.gov/opinions/pdf/775049.pdf
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This article is to inform our clients and others about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in this post without seeking professional counsel.