Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON EARLENE JAGANA, No. 89005-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION KING COUNTY, a municipal corporation; KING COUNTY DEPARTMENT OF TRANSPORTATION; KING COUNTY METRO, a division of KING COUNTY DEPARTMENT OF TRANSPORTATION aka METRO TRANSIT; BUS DRIVER JOHN DOE and J. DOE, spouses and the marital community of them composed; and E. Does 1-10, Respondents. MANN, J. — Earlene Jagana sued King County for negligence after she sustained injuries as a passenger on a King County Metro bus. Jagana appeals the trial court’s order dismissing her complaint on summary judgment. We reverse. I On August 13, 2024, Jagana boarded a King County Metro bus at 3rd Avenue and Union Street in Seattle. She entered the bus through a rear exit door and chose a No. 89005-1-I/2 seat that required climbing two steps. Ex. A, camera 2, at 21 hr., 45 min., 51 sec. 1 While standing on the first step, Jagana began to place a cloth on the seat but before she sat down, the bus pulled away from the stop. The acceleration of the bus caused Jagana to lose her balance and fall backward. Jagana was not holding a pole or stanchion when the bus moved from the stop. She suffered significant back injuries due to the fall. Metro’s internal surveillance system captured the incident on video. See Ex. A. Jagana sued King County, King County Department of Transportation, King County Metro (Metro), and the bus operator John Doe, for negligence, negligent entrustment, and vicarious liability. King County moved for summary judgment. In response, Jagana conceded that her negligent entrustment claim should be dismissed but argued genuine issues of material fact existed regarding the bus driver’s negligence, specifically as to breach of duty. The trial court granted King County’s motion and dismissed Jagana’s claims. Jagana appeals. II Jagana argues that the trial court erred when it granted King County’s motion for summary judgment. We agree. We review a summary judgment order de novo. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). “[W]e engage in the same inquiry as the trial court.” Haley v. Amazon.com Servs., LLC, 25 Wn. App. 2d 207, 216, 522 1 Exhibit A contains video footage from the Metro bus, capturing eight different camera angles. -2- No. 89005-1-I/3 P.3d 80 (2022). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c); see also Ranger, 164 Wn.2d at 552. “A genuine issue of material fact exists where reasonable minds could differ on the facts controlling the outcome of the litigation.” Ranger, 164 Wn.2d at 552. “In a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact.” Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). “If the moving party is a defendant and meets this initial showing, then the inquiry shifts to the party with the burden of proof at trial, the plaintiff.” Young, 112 Wn.2d at 225 (footnote omitted). To avoid summary judgment, the nonmoving party must provide “‘specific facts which sufficiently rebut the moving party’s contentions and disclose the existence of a genuine issue as to a material fact.’” Ranger, 164 Wn.2d at 552 (quoting Meyer v. Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986)). Jagana contends that genuine issues of material fact exist as to the bus driver’s negligence. To prove negligence, a plaintiff must show (1) the existence of a duty, (2) a breach of that duty, (3) resulting injury, and (4) proximate cause. Ranger, 164 Wn.2d at 552. The existence of a duty is a question of law. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). “Breach of duty is ordinarily a factual question. If there is any evidence tending to show that the carrier failed to comply with the required standard of care, then the question of negligence must be left to the jury.” Walker v. King County Metro, 126 Wn. App. 904, 908, 109 P.3d 836 (2005). -3- No. 89005-1-I/4 Both parties agree that King County Metro is a common carrier. “As a common carrier of passengers, a bus system owes the highest degree of care towards its passengers commensurate with the practical operation of its services at the time and place in question.” Price v. Kitsap Transit, 125 Wn.2d 456, 465, 886 P.2d 556 (1994). But a common carrier “is not liable for injuries received from ‘ordinary jolts and jerks necessarily incident to the mode of transportation,’ unless there is evidence of physical facts from which operator negligence might reasonably be inferred.” Walker, 126 Wn. App. at 908. Jagana argues that the bus operator was negligent because he failed to use the internal mirror to check if she, as a senior passenger, boarded and needed time to secure a seat. To rebut King County’s assertion that no genuine issue of material fact exists, she points to Metro’s manual for transit operators, which provides: Operators are to operate the coach smoothly (accelerate and slow gradually) . . . [u]se appropriate interior and exterior mirrors to monitor customer boarding and exiting[, and] [a]llow seniors, riders with disabilities[,] and any customer who is unstable (hands occupied . . .) to secure a seat, stanchion, handrail or strap . . . before moving the coach. She also contends the video evidence corroborates her argument that the driver did not use the interior mirror. King County argues that Jagana did not offer evidence to show operator negligence and that Walker should control the outcome of this case. In Walker, a passenger on a Metro bus fell and was injured when the bus braked suddenly to avoid an accident. 126 Wn. App. at 906. At the time of braking, Walker stood while holding onto a support pole. Walker, 126 Wn. App. at 907. She carried a shoulder-strapped purse and a tote bag but had a free hand. Walker, 126 Wn. App. at 906, 910. Walker’s -4- No. 89005-1-I/5 evidence included a Metro policy that an operator should wait for passengers that are “visibly laden” to be seated before leaving a bus stop. Walker, 126 Wn. App. at 910. Additionally, Walker argued the bus driver failed to honk his horn or give a verbal warning to passengers before braking, was not wearing his glasses, and drove at an unsafe speed. Walker, 126 Wn. App. at 911. This court held that the evidence did not tend to show that any of the acts violated a standard of care. Walker, 126 Wn. App. 911. In this case, unlike in Walker, the evidence includes more than reliance on Metro policy and conclusory allegations. The record includes video footage of the incident. See Ex. A. Each party contends the same video supports their theory of the case. Jagana asserts that the video shows the bus operator failing to look at the interior mirror to observe boarding passengers. King County asserts that the video corroborates the bus operator’s declaration that he pulled away from the stop slowly, and that Jagana did not present as a senior citizen so the driver could not know she needed more time to find a seat. Viewing the video in the light most favorable to Jagana, it does not unquestionably support one side, and reasonable minds could differ on what it depicts. Since a dispute exists as to what the video shows and whose theory it supports, we cannot conclude there is no genuine issue of material fact. Again, “if there is any evidence tending to show that the carrier failed to comply with the required standard of care, then the question of negligence must be left to the jury.” Walker, 126 Wn. App. at 911. -5- No. 89005-1-I/6 Taking the evidence in the light most favorable to Jagana, she has established a genuine issue of material fact. Because summary judgment was not appropriate, we reverse. WE CONCUR: -6-