trial court had no opportunity to consider a motion that was not properly noted and therefore was not properly before that court
How later courts described this case
- trial court had no opportunity to consider a motion that was not properly noted and therefore was not properly before that court
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
WILLIAM DUSSAULT, as Litigation No. 82525-9-I
Guardian ad Litem on behalf of
MATTHEW GRAY; ANDREA GRAY; and DIVISION ONE
JIM GRAY,
UNPUBLISHED OPINION
Petitioner,
v.
WASHINGTON STATE UNIVERSITY; a
subdivision of the State of Washington;
and TAU KAPPA EPSILON
FRATERNITY; an Indiana Corporation;
TKE ALPHA GAMMA CHAPTER, aka
ALPHA-GAMMA, an association; and TKE
HOLDING GROUP ALPHA GAMMA
CHAPTER; a Washington corporation; and
ABC, DEF, GHI, JKL CORPORATIONS;
and JOHN/JANE DOES,
Respondents.
ANDRUS, C.J. —William Dussault, the litigation guardian ad litem for
Matthew Gray, and Matthew’s parents, appeal the summary judgment dismissal of
their claims against Tau Kappa Epsilon Fraternity and its affiliated entities for
allegedly overserving alcohol to Matthew, an underage freshman at Washington
State University, and causing him to sustain injuries from a fall from his dormitory
window. We reverse the summary judgment and remand for further proceedings.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82525-9-I/2
FACTS
In August 2017, 18-year-old Matthew Gray 1 started his freshman year at
Washington State University (WSU). Matthew moved into a university-run
residence hall, where he moved his bed against the window in his room. He also
became a freshman pledge of the Tau Kappa Epsilon (TKE) fraternity.
On August 23, 2017, Matthew attended an off-campus party at the TKE
fraternity house, where he drank alcohol and became intoxicated. Sometime
before midnight, Matthew went back to his residence hall and encountered his
Resident Advisor, Matthew Lomasney, who noticed Matthew was under the
influence.
Shortly before 2 a.m. another resident, Aaron Cothard, returning to the
dormitory, noticed Matthew curled up and sleeping against his second story
window. A few seconds later, Cothard saw the window screen pop off and Matthew
fall to the concrete below without reaching out to break his fall. Matthew sustained
a traumatic brain injury, requiring extensive brain, cranial, and orthopedic surgeries
and brain damage rehabilitation.
Matthew’s litigation guardian ad litem, William Dussault, and his parents,
Andrea and Jim Gray (collectively “Dussault”) filed suit against both WSU and TKE
for negligence. 2 Dussault alleged that TKE was negligent in knowingly serving
alcohol to a minor. He alleged that WSU was negligent in permitting TKE to host
parties at which students would engage in excessive alcohol consumption and
1 We will refer to Matthew and his parents by their first names for clarity.
2 Dussault named TKE Fraternity, an Indiana corporation, TKE Alpha Gamma Chapter, aka Alpha-
Gamma, an association, and TKE Holding Group Alpha Gamma Chapter, a Washington
corporation. We refer to these entities collectively as “TKE.”
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No. 82525-9-I/3
failing to warn freshmen of the hazards associated with the dorm windows and
failing to train the resident advisors on these hazards and precautions needed to
prevent student falls from heights.
Both TKE and WSU denied liability and asserted that other parties, including
Matthew himself, were at fault. WSU specifically raised the affirmative defenses
that Matthew’s injuries were a result of his own negligence, RCW 5.40.060 barred
liability because Matthew was under the influence of alcohol and more than 50
percent at fault, Matthew’s injuries were caused by TKE, and any award to
Matthew must be reduced by an amount equal to the percentage of fault
attributable to non-parties.
TKE moved for summary judgment, seeking dismissal of Matthew’s claims,
because Dussault conceded in discovery that he had no evidence to prove that
alcohol consumption was a proximate cause of Matthew’s fall. Dussault did not
oppose TKE’s motion. In response, Dussault represented to the trial court that
“there is no evidence that Matthew Gray’s intoxication was a proximate cause of
his injuries.” Dussault submitted a declaration from Dr. Jennifer Souders, who
reviewed the record and reported that on August 23, 2017, witnesses saw Matthew
drinking, experiencing slurred speech, leaning against walls to walk, getting lost in
his residence hall after the party, and needing the assistance of Lomasney to find
a restroom to get water and vomit. Lomasney left Matthew in his room between
11:50 p.m. and 12:00 a.m. Matthew fell from his dorm window almost two hours
later, at 1:49 a.m. Hospital records indicated that Matthew’s blood serum level at
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2:05 a.m. was 258 mg/dL. 3 Dr. Souders computed his blood alcohol level to be
0.219 g/dL.
Dr. Souders opined that Matthew’s “central nervous system was impaired
to some degree at the time that he fell out of his dorm window and at the time that
he was interacting with resident advisor Matthew Lomasney.” She also testified
that “[o]n a more probable than not basis, [Matthew] would have had decreased
physical and cognitive abilities compared to a sober person at the time of his fall.”
Dr. Souders stated that Matthew likely experienced increased drowsiness,
decreased perception, increased reaction time, increased sensory-motor
incoordination, decreased balance, decreased memory, slurred speech and
vomiting. But she nevertheless “[could not] say on a more probable than not basis
that [Matthew’s] alcohol intoxication was a contributing factor to his fall.” She
concluded that “even while accepting as true that [Matthew] had some degree of
diminished physical and mental acuity at the time of the fall, there is no way to
determine if this contributed to his fall.” She further opined that “no qualified
medical professional could determine on a more probable than not basis, to a
reasonable degree of medical certainty, whether alcohol intoxication was a
contributing factor in [Matthew’s] fall.”
Dussault not only asked the trial court to “issue an [o]rder dismissing the
TKE Defendants,” but he also asked the court to preclude WSU from arguing or
seeking to admit evidence at trial that Matthew’s intoxication caused or contributed
3 Dr. Souder testified that fatalities from alcohol poisoning are reported at blood serum levels that
meet or exceed 400 mg/dL and that Matthew’s level was not in the lethal range.
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No. 82525-9-I/5
to his damages. Neither TKE nor Dussault moved to dismiss WSU’s affirmative
defenses.
On the same day Dussault requested the dismissal of claims against TKE,
WSU submitted evidence in opposition to TKE’s summary judgment motion. WSU
submitted the declaration of Dr. Daniel Repplinger to establish the impact of
Matthew’s alcohol consumption that night. Dr. Repplinger testified that Matthew’s
blood alcohol concentration was 0.258 g/dL, over three times the legal limit to
operate a motor vehicle, 0.08 g/dL. He recounted evidence that witnesses
observed Matthew consuming alcohol beginning as early as 8:00 p.m. that evening
and drinking high alcohol concentration malt beverages and beer throughout the
night. Dr. Repplinger recounted testimony from Lomasney that Mathew lost his
key card and forgot his password and needed 30 minutes to recall. He stated:
Based on witness reporting and the BAC of [Matthew,] he was likely
severely intoxicated at the time of the fall. A BAC of .258 can result
in a variety of symptoms including disorientation, mental confusion,
muscular incoordination, slurred speech, loss of motor function,
decreased response to stimuli, impaired consciousness, and sleep
or stupor. At the time of his fall, [Matthew] was neurologically and
physically impaired by the alcohol he had consumed earlier that
evening.
At the March 29, 2021 hearing, the trial court concluded that, by joining
TKE’s motion, Dussault had in effect chosen not to prosecute Matthew’s claim
against the fraternity. WSU pointed out that in addition to the dismissal of
Matthew’s claims against TKE, Matthew was also asking the court to “take the
issue of intoxication away from the jury.” At the conclusion of the hearing, the trial
court concluded that the only motion before it was TKE’s motion to dismiss
Matthew’s claims against the fraternity, that Dussault agreed to the dismissal of
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No. 82525-9-I/6
those claims. Based on that agreement, it granted TKE’s summary judgment. It
further ruled that
to the extent there is an effort here to also argue that nobody [with a
claim] could prove TKE’s failure to monitor and restrict the amount of
alcohol that was served to the child in this case, [Matthew], that is
something [that’s] never going to be successful at summary
judgment on this record. . . . [T]he evidence taken in the light most
favorable to the nonmoving party, which here would be only, frankly,
WSU defending its affirmative defense is that [Matthew] was over-
served by a lot at a TKE function; that TKE’s responsibility to monitor
over-service should lead to people of [Matthew’s] age wasn’t fulfilled,
and that [Matthew] was very, very intoxicated when he returned to
his dormitory and he showed his impairment in a number of different
ways to people who interacted with him. . . . So a jury could
reasonably determine that a cause of [Matthew] going out the
window and being badly injured was the fact that he was very drunk
and because he had been over-served at a TKE function. And that
inference reasonably arises from this evidence, you know, partly
because we have a clash of the experts, but mostly because that’s
what the evidence shows when it’s construed in the light most
favorable to a party that isn’t TKE in this case.
It indicated its intent to sign an order “that simply indicates that without objection
from plaintiff, TKE is dismissed form this lawsuit from plaintiff’s claims” and that its
ruling “does not in any way affect the viability of WSU’s affirmative defenses,
including its affirmative defense of TKE being negligent and over-serving [Matthew]
. . . .” In its written order, the court reiterated that it “[made] no findings of fact or
conclusions of law regarding WSU’s affirmative defenses or any other factual
issue.”
Dussault moved for reconsideration under CR 59(a)(7), arguing that the trial
court should modify the order to reflect that TKE was dismissed on summary
judgment and was thus a fault-free party against whom WSU could not seek to
allocate fault under RCW 4.22.070. Alternatively, Dussault argued that if the trial
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No. 82525-9-I/7
court found a genuine issue of material fact as to TKE’s liability, then it should not
have granted summary judgment at all.
The trial court denied the motion for reconsideration, reiterating that the only
motion before it was a motion to dismiss Dussault’s claim against TKE, not a
motion to dismiss WSU’s affirmative defenses and it had granted TKE’s motion
solely on the basis that Dussault did not oppose it. The court noted that “[there
are] significant material issues of fact as to plaintiff’s intoxication and the causal
relationship with his injury” and repeated that its ruling had “no effect whatsoever”
on WSU’s affirmative defenses.
Dussault asked the trial court to certify the orders for appeal under CR
54(b), or in the alternative, to certify the question for discretionary review pursuant
to RAP 2.3(b)(4). The trial court denied this motion, stating: “For the final time, this
Court granted TKE’s motion for dismissal of plaintiff’s claims against TKE because
plaintiff did not oppose it. The Court did not reach or rule upon proximate
causation. That an unopposed motion should be granted is not a matter that merits
appellate review.”
This court granted Dussault’s motion for discretionary review.
ANALYSIS
Dussault argues that the trial court erred in dismissing TKE if it did not also
foreclose WSU from seeking to allocate fault to TKE.
Appellate courts review a summary judgment order de novo and perform
the same inquiry as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC,
196 Wn.2d 199, 205, 471 P.3d 871 (2020). A moving party is entitled to summary
judgment “if the pleadings, depositions, answers to interrogatories, and
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No. 82525-9-I/8
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact.” CR 56(c). We consider all the evidence and
reasonable inferences in the light most favorable to the nonmoving party. Keck v.
Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). “A genuine issue of material
fact exists when reasonable minds could differ on the facts controlling the outcome
of the litigation.” Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484,
258 P.3d 676 (2011).
To prevail on his negligence claim, Dussault must show (1) the existence of
a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) that
the breach of duty was the proximate cause of the injury. N.L. v. Bethel Sch. Dist.,
186 Wn.2d 422, 429, 378 P.3d 162 (2016). TKE sought summary judgment on the
issue of causation. Dussault did not oppose that motion and, in fact, affirmatively
requested the same relief TKE sought—dismissal of all claims against TKE.
If the trial court initially erred in dismissing TKE, Dussault invited that error.
The invited error doctrine precludes a party from setting up an error at the trial
court and then complaining of it on appeal. Shavlik v. Dawson Place, 11 Wn. App.
2d 250, 270, 452 P.3d 1241 (2019). The doctrine applies when a party takes
affirmative and voluntary action that induces the trial court to take an action that
the party later challenges on appeal. Grange Ins. Ass'n v. Roberts, 179 Wn. App.
739, 774, 320 P.3d 77 (2013). Despite finding a material question of fact, the trial
court granted summary judgment to TKE because Dussault asked it to do so.
Dussault, in responding to the TKE motion, wrote:
TKE Defendants state [in] their Motion for Summary
Judgment that “Plaintiffs have repeatedly and unequivocally
admitted that [Matthew] was asleep at the time of the incident, was
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No. 82525-9-I/9
not acting under the influence of alcohol and that alcohol did not
cause or contribute to his fall.” This is correct. Plaintiffs admit that
Matthew was intoxicated at the time of the subject incident.
However, Plaintiffs are aware of no evidence supporting the
contention that Matthew’s intoxication caused or contributed to the
subject incident.
(Emphasis added.) Dussault “respectfully request[ed] that the Court issue an
Order dismissing the TKE Defendants . . . .” Dussault cannot complain that the
court erred in granting the summary judgment when he asked for that relief. See
Grange Ins. Ass’n, 179 Wn. App. at 774 (a party cannot complain that the trial court
dismissed a claim for the “wrong reason” when that party affirmatively asked the
court to dismiss the claim and failed to argue the merits of the claim).
But the real issue is not the court’s dismissal of TKE but the court’s refusal
to preclude WSU from seeking to apportion fault to TKE at trial. Dussault argued
on reconsideration that the summary judgment order is a final judgment in TKE’s
favor, making TKE a fault-free entity to whom fault cannot be allocated as a matter
of law under RCW 4.22.070. Apparently, Dussault believed that by not opposing
TKE’s summary judgment, he could in effect obtain a dispositive ruling
undercutting WSU’s main defense in the case.
The court clearly was not willing to allow Dussault to obtain such a legal
ruling without Dussault properly putting the issue before it in a dispositive motion.
The trial court correctly concluded that TKE’s motion was the only motion properly
before it. See Doyle v. Lee, 166 Wn. App. 397, 272 P.3d 256 (2012) (trial court
had no opportunity to consider a motion that was not properly noted and therefore
was not properly before that court). It was not an abuse of discretion to deny
Dussault’s attempt to obtain what is effectively a significant dispositive legal ruling
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No. 82525-9-I/10
adverse to WSU when Dussault did not file a CR 56 motion to give WSU the time
and opportunity to respond. 4
But the trial court did abuse its discretion in not granting Dussault’s motion
for reconsideration when it became clear Dussault was not asking for a voluntary
dismissal, and without a legal ruling that TKE was fault-free, wanted reinstatement
of Matthew’s claims against TKE. CR 59(a) permits a trial court to grant
reconsideration of a decision that is “contrary to law.” “Motions for reconsideration
are addressed to the sound discretion of the trial court; a reviewing court will not
reverse a trial court’s ruling absent a showing of manifest abuse of that discretion.”
Wagner Dev., Inc. v. Fid. & Deposit Co. of Maryland, 95 Wn. App. 896, 906, 977
P.2d 639 (1999). But refusal to correct a legal error raised in a motion for
reconsideration is an abuse of discretion. Singleton v. Naegeli Reporting Corp.,
142 Wn. App. 598, 612, 175 P.3d 594 (2008).
Here, the trial court correctly concluded that it could not deem TKE to be
without fault as there are genuine issues of material fact as to whether TKE caused
Matthew’s injuries by overserving alcohol to him at a frat party. 5 In the hours
leading up to the fall, TKE served Matthew, a minor, so much alcohol that he was
unable to find his dorm room or walk unassisted. More than two hours after he left
4 Relying on federal civil procedure rules, Dussault argues that no separate motion was required
because the court had the “obligation to grant summary judgment whenever it is warranted, even
if it is in favor of the nonmoving party.” But under Washington law, granting summary judgment to
the nonmoving party is only appropriate when both parties seek a resolution of a legal issue based
on stipulated facts, Mut. of Enumclaw Ins. Co. v. Cox, 110 Wn.2d 643, 653, 757 P.2d 499 (1988),
or when the moving party has admitted liability to the nonmoving party. Leland v. Frogge, 71 Wn.2d
197, 201, 427 P.2d 724 (1967). Neither circumstance exists here.
5 Dussault contends that the trial court failed to give him the benefit of all the evidence in the record,
which establishes a genuine issue of material fact and precludes summary judgment. Dussault
never asked the court to deny the summary judgment based on WSU’s evidence. He cannot raise
on appeal an argument he failed to advance below. RAP 2.5(a); Aventis Pharm., Inc. v. State, 5
Wn. App. 2d 637, 650, 428 P.3d 389 (2018).
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No. 82525-9-I/11
the party, his blood alcohol concentration remained somewhere between 0.218
g/dL and 0.258 g/dL—a level high enough to cause diminished physical and mental
acuity. An eye witness saw Matthew fall from a second story window without
reaching out to break his fall, from which a reasonable jury could conclude Matthew
was in an alcohol-induced stupor. In discovery, Matthew conceded that “the
alcohol in [his] system may have been a contributing factor to his fall.” A
reasonable jury could conclude that TKE’s over-service of alcohol caused Matthew
to become intoxicated, which caused his fall.
Dussault asked the court on reconsideration to reinstate Matthew’s claims
against TKE if genuine issues of material fact exist as to TKE’s fault. Dussault
made it clear that the premise on which the court based its summary judgment
decision—that Dussault did not want to prosecute the claim against TKE—was
erroneous. Because genuine issues of material fact exist and Dussault no longer
sought to abandon Matthew’s claims against TKE, the trial court abused its
discretion in denying the motion for reconsideration.
We reverse the trial court’s order granting TKE’s motion for summary
judgment and remand for further proceedings.
WE CONCUR:
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