Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1991)

Tony Ray WESTMORELAND, by his guardian, Bob WESTMORELAND,Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 90-35342.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1991.Decided March 18, 1991.

Appeal from the United States District Court for the Western District of Washington; No. CV-87-931-M, Walter T. McGovern, District Judge, Presiding.

W.D. Wash.




Tony Ray Westmoreland, by his guardian, Bob Westmoreland, appeals the district court's summary judgment dismissal of his action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

Westmoreland was injured when he drove his motorcycle into the right rear panel of a car driven by Barbara Alberts. At the time of the accident, Alberts was turning left across three traffic lanes into the parking lot driveway of the Federal Center South Center office complex in Seattle. Westmoreland contends that the United States was negligent in the location and design of this parking lot driveway and that such negligence proximately caused his injuries. We understand but reject the argument.

We review the district court's grant of summary judgment de novo. See California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988).

No genuine issue for trial exists if specific facts have not been set forth by the nonmoving party such that a reasonable jury could find in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); T.W. Elec. Serv. v. Pacific Elec. Contractors, 809 F.2d 626, 631 (9th Cir. 1987).

Under Washington law, "an abutting property owner must use and keep his premises in a condition so adjacent public ways are not rendered unsafe for ordinary travel." Re v. Tenney, 56 Wash. App. 394, 783 P.2d 632, 633 (1989) (citations omitted).

Nothing in the record raises a genuine issue of material fact as to whether the location of the driveway on the highway created an unsafe condition for which the United States was responsible. The regulation of traffic flow on the highway, the utilization of traffic signals, and the propriety of free left turn lanes were at all times the responsibility of the city of Seattle. Cf. Kelly v. Gifford, 63 Wash. 2d 221, 386 P.2d 415 (1963) (pool of water on highway resulting from adjacent landowner's lawful drainage of surface water was exclusive responsibility of county that had control over highway).

Westmoreland argues that features of the driveway required entering drivers to decelerate to manage the ramping of the driveway and the "unreasonable number of decisions and distractions" facing them. He alleges that this unreasonable need to decelerate jeopardized the safety of passing motorists because those entering the driveway could not clear the roadway in a proper period of time. To support this contention, Westmoreland submitted an expert opinion affidavit by Kenneth Cottingham. This affidavit lists several features of the parking lot entrance which purportedly rendered the adjacent public way unsafe. These features include the design of the fencing and gate, nearby trees, irregular curbing, a ramped driveway, potential for the simultaneous entering and exiting of vehicles, a nearby bus stop, mixed pedestrian and vehicular traffic and inadequate traffic signals.

However, none of these features contributed in any way to the accident. The driver of the automobile, by affidavit, stated that her view was unobstructed and neither the bus stop, the ramping, nor the curbing disrupted her attention or complicated her left turn maneuver. Moreover, the allegations of the Cottingham affidavit fail to present anything unusual about the parking lot driveway that would have arguably contributed to the accident. For example, the "ramp" is merely the standard six inch incline from street to curb used for virtually all driveways.

Viewing the record as a whole, Westmoreland has failed to raise any genuine issues of material fact as to the government's liability for the accident. It is not enough to show that there "is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Summary judgment was proper.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3