The opinion
Durham, C.J.
(concurring)—The dissenting opinion requires that this separate concurring opinion be added.
We are here responding to the State Supreme Court's order remanding Turngren I to us for determination in light of its more recent decision in Bender v. Seattle, 99 Wn.2d 582 , 664 P.2d 492 (1983). Many of the factual matters referred to in the dissent herein were dealt with in our earlier Turngren I majority opinion. For example, as we there observed:
The unsworn and unsigned statement of the informant reported by counsel for the Turngrens is hearsay, admissible only to impeach the credibility of the informant's deposition testimony and, as such, cannot create an issue of material fact. Further, the unsworn "affidavit" of the Turngrens' expert witness, Robert di Grazia, fails to raise any genuine issue of material fact concerning the detectives' malicious or reckless conduct since it is based on conclusory allegations without the required detailing of the specific facts underlying his opinion. CR 56(e). Moreover, even if the expert's conclusory allegations are taken as true, the "affidavit" raises no more than an inference of negligent investigation and that is not sufficient to preclude summary judgment in a case of this kind.
(Citations omitted.) Turngren v. King Cy., 33 Wn. App. 78 , 83 n.3, 649 P.2d 153 (1982).
Furthermore, this court has never used allegations of damages by plaintiffs, however emotionally charged, as proof of liability. This case involves a summary judgment on the liability issue entered by the trial court pursuant to CR 56, and that is the issue before us.