Litov - CoS Answer

Hon. Mike Ryan

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY

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AVIV LITOV, adult child, through his Power of Attorney TZACHI LITOV; LARA and TZACHI LITOV, his parents.

Plaintiffs,

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v.

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CITY OF SEATTLE, a governmental entity, XU CHEN, an individual;

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25-2-00226-8 SEA

DEFENDANT CITY OF SEATTLE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT FOR DAMAGES,

Defendants.

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No.

Defendant City of Seattle (“City”), through its attorneys, Seattle City Attorney’s Office,

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pleads an Answer to Plaintiffs’ Complaint for Damages (“Complaint”), and admits, denies, and alleges

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as follows: I.

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1.1

ANSWER

Plaintiffs’ “Case Synopsis” is not an allegation requiring answer, but to the extent answer

is required, deny “Case Synopsis.”

1.2

Deny paragraph 1.1, including embedded, unauthenticated image described as Figure 1,

for lack of knowledge.

DEFENDANT CITY OF SEATTLE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT FOR DAMAGES - 1

Ann Davison Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

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1.3

Deny paragraph 1.2 for lack of knowledge.

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1.4

Admit paragraph 1.3.

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1.5

Deny paragraph 1.4 for lack of knowledge.

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1.6

Admit only that Plaintiff Aviv Litov filed a Notice of Tort Claim form on October 31,

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2024. Deny the remainder of paragraph 2.1.

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City. Deny the remainder of paragraph 2.2.

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Admit only that Plaintiffs’ attorneys issued a series of Public Records Requests to the

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Deny paragraph 3.1 as a legal conclusion.

1.9

Deny paragraph 3.2 as a legal conclusion, but do not contest venue.

1.10

Admit only that the City owes a duty to maintain roadways, including protected bike

lanes (“PBL”), in a condition that is reasonably safe for ordinary travel. Deny the remainder of paragraph 4.1.

1.11

Admit only that Vision Zero is an initiative with a goal of eliminating traffic-related

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fatalities and serious injuries through a systemic approach to traffic safety. Deny the remainder of

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paragraph 4.2.

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1.12

Admit only that the City chose to participate in Vision Zero in 2015. Deny the remainder

of paragraph 4.3.

1.13

Admit only that the City collaborates with partner agencies and supports additional

efforts that will encourage safer travel behavior, improved vehicle safety, and enhanced outcomes from emergency response. Deny the remainder of paragraph 4.4.

1.14

Admit only that the City seeks to increase transportation safety by incorporating multiple

layers of protection to prevent collisions from occurring and reducing severity when collisions do occur.

Deny the remainder of paragraph 4.5.

22 23 DEFENDANT CITY OF SEATTLE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT FOR DAMAGES - 2

Ann Davison Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

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1.15

Admit only that the City implements road designs based on the vision that some traffic

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deaths can be prevented by design and seeks designs that encourage and influence better driver behavior.

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Deny the remainder of paragraph 4.6.

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1.16

Admit only that the City seeks to implement road designs that support its Vision Zero

goals. Deny the remainder of paragraph 4.7.

1.17

Admit only that the City seeks to develop road designs that may include reduced travel

speeds, protected bike lanes, road diets, and sight lines. Deny that the City develops bicycle design standards. Deny the remainder of paragraph 4.8.

1.18

Admit only that the City considered a number of design sources when preparing Streets

Illustrated, Seattle’s Right-of-Way Manual, which provides design guidance and standards, and processes on how to design, build, and manage within the right-of-way. These design sources may include design guidance from the American Association of State Highway Transportation Officials

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Guide for the Development of Bicycle Facilities (“AASHTO Bike Guide”); the Manual on Uniform

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Traffic Control Devices (MUTCD); the National Association of City Transportation Officials (NACTO)

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Urban Bikeway Design Guide; and the Federal Highway Administration (FHWA) Separated Bike Lane

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Planning and Design Guide. Deny that the City develops bicycle design standards. Deny the remainder

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of paragraph 4.9, and all subparagraphs 4.9.1 through 4.9.4.

1.19

Admit paragraph 4.10.

1.20

Admit only that since 2015 the City has attempted to implement road designs that support

Vision Zero goals. Deny the remainder of paragraph 4.11.

1.21

Admit only that the City undertook a number of arterial paving projects in the Green

Lake and Wallingford area during 2019, including the Green Lake and Wallingford Paving & MultiModal Improvement (the “Project”). Deny the remainder of paragraph 4.12.

1.22

Admit only on information and belief that the unauthenticated screenshot appears to

generally depict the Project. Deny the remainder of paragraph 4.13.

DEFENDANT CITY OF SEATTLE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT FOR DAMAGES - 3

Ann Davison Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

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1.23

Admit only that some bike lanes were redesigned and or added in connection with the

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Project. Deny on information and belief that the that location where the collision occurred was within

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the scope of the Project. Deny the remainder of paragraph 4.14.

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1.24

Admit only that the undated, unauthenticated image described as Figure 2 appears to

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generally depict the location where the collision occurred but deny that it is a fair and accurate

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representation of the location before 2019 as alleged. Deny the remainder of paragraph 4.15.

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1.25

Admit only that the undated, unauthenticated image described as Figure 3 appears to

generally depict the location where the collision occurred but deny that it is a fair and accurate representation of the location after 2021 as alleged. Deny the remainder of paragraph 4.16.

1.26

Admit only that parked cars are present between the roadway and the bike lane at the

location depicted in Figure 3. Deny the remainder of paragraph 4.17.

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Admit only that the presence of parked cars may create transitory sight obstructions.

Deny the remainder of paragraph 4.18.

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1.28

Deny paragraph 4.19.

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1.29

Admit paragraph 4.20.

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1.30

Deny paragraph 4.21.

1.31

Admit paragraph 4.22 on information and belief.

1.32

Admit paragraph 4.23 on information and belief.

1.33

Deny paragraph 4.24.

1.34

Deny paragraph 4.25.

1.35

Deny paragraph 4.26.

1.36

Deny paragraph 4.27.

1.37

Admit only that the undated, unauthenticated image described as Figure 4 generally

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depicts the location where the collision occurred but deny that it is a fair and accurate representation of

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the location on the day of the collision. Deny the remainder of paragraph 4.28.

DEFENDANT CITY OF SEATTLE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT FOR DAMAGES - 4

Ann Davison Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

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1.38

Deny paragraph 4.29.

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1.39

Deny paragraph 4.30.

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Admit only that the undated, unauthenticated image described as Figure 5 generally

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depicts the Tesla on the day of the collision soon after the collision but deny that it is a fair and accurate

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representation of the Tesla. Admit only that the undated, unauthenticated image described as Figure 6

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generally depicts the Plaintiffs’ bicycle on the day of the collision soon after the collision but deny that

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it is a fair and accurate representation of the bicycle. Deny the remainder of paragraph 4.31.

1.41

Deny paragraph 4.32.

1.42

Deny paragraph 4.33 and all subparagraphs 4.33.1 through 4.33.6.

1.43

Admit only that the undated, unauthenticated image described as Figure 7 generally

depicts the Plaintiff at some point after the collision but deny that it is a fair and accurate representation of the Plaintiff. Admit further only that Plaintiff was treated at Harborview Medical Center for his injuries. Deny the remainder of paragraph 4.34.

1.44

Admit only that the City participated in roadway design related to the Project. Deny

the remainder of paragraph 5.1.

1.45

Admit paragraph 5.2.

1.46

Admit paragraph 5.3.

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Deny paragraph 5.4.

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Deny paragraph 5.5.

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Deny paragraph 5.6.

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Deny paragraph 5.7 as not directed to this Defendant.

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Deny paragraph 5.8 as not directed to this Defendant.

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1.52

Deny paragraph 5.9.

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1.53

Deny paragraph 6.1.

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1.54

Deny paragraph 6.2.

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DEFENDANT CITY OF SEATTLE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT FOR DAMAGES - 5

Ann Davison Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

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1.55

Deny paragraph 6.3.

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Deny paragraph 6.4.

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Deny paragraph 6.5.

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1.58

Deny any allegation not expressly admitted.

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1.59

Deny Plaintiffs’ Prayer, including subparagraphs 1 through 7. Allege further that

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Washington does not permit recovery of attorney’s fees absent express statutory authorization and the City, a municipal corporation, is immune from liability for prejudgment interest under RCW 4.56.115.

II.

AFFIRMATIVE DEFENSES

2.1

Plaintiffs may have failed to state a claim.

2.2

Any damages alleged by Plaintiffs were not proximately caused by Defendant.

2.3

Plaintiffs’ alleged damages may have been proximately caused by the conduct, acts

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or omissions of other persons or entities over whom the City had no control, including but not limited

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to Defendant Xu Chen; and the City’s alleged liability, if any, should be reduced and/or offset.

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2.4

Plaintiffs may not have exercised reasonable care and may have contributed to the

damages alleged in the Complaint; and their damages, if any, should be accordingly reduced.

2.5

Plaintiff Aviv Litov may have expressly, knowingly, and voluntarily assumed any

risks and any alleged damages were proximately caused, in whole and in part, by such assumption of risk and/or informed consent which bars or diminishes any recovery by this Plaintiff against this Defendant.

2.6

Plaintiffs may have failed to comply with RCW 4.96.010 and/or RCW 4.96.020.

2.7

Plaintiffs’ claims against Defendant may be barred by the doctrines of immunity,

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including but not limited to the public duty doctrine and governmental immunity for discretionary

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acts and policy decisions made pursuant to the act of governing.

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2.8

Plaintiffs may have failed to mitigate their alleged damages, losses, and injuries.

DEFENDANT CITY OF SEATTLE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT FOR DAMAGES - 6

Ann Davison Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

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III.

RESERVATION OF RIGHT TO AMEND

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Defendant reserves the right to amend its Answer to the Complaint further, including its

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affirmative defenses, to comply with the facts and evidence. Defendant further reserves the right to

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bring cross claims, third-party claims, and/or counterclaims to comply with the facts and evidence.

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Defendant will dismiss any affirmative defense not supported by the facts and evidence before trial.

IV.

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PRAYER FOR RELIEF

Defendant City of Seattle respectfully requests that Plaintiffs’ Complaint for Damages, Personal Injury, and Injunction be dismissed with prejudice, that Defendant be awarded its costs and reasonable attorneys’ fees, and that Defendant be granted such other and further relief as the Court finds just and equitable.

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DATED this 24th day of January 2025.

ANN DAVISON Seattle City Attorney

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By: /s/A. Janay Ferguson A. Janay Ferguson, WSBA# 31246 Eric Dore, WSBA# 53531 Assistant City Attorneys E-mail: Janay.Ferguson@seattle.gov Frederich.Dore@seattle.gov Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Phone: (206) 684-8200

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Attorney for Defendant City of Seattle

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21 22 23 DEFENDANT CITY OF SEATTLE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT FOR DAMAGES - 7

Ann Davison Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

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CERTIFICATE OF SERVICE

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I certify that on the 24th day of January, 2025, I caused a true and correct copy of this document to be served on the following in the manner indicated below:

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Attorney for Plaintiff:

 Via Email

Karen K. Koehler, WSBA #15325 Mo Hammoudi, WSBA #48512 Stritmatter Kessler Koehler Moore 3600 15th Ave W, Ste 300 Seattle, WA 98119

karenk@stritmatter.com mo@stritmatter.com rory@stritmatter.com

s/Elisabeth Connett_______________________ Elisabeth Connett, Legal Assistant

10 11 12 13 14 15 16 17 18 19 20 21 22 23 DEFENDANT CITY OF SEATTLE’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT FOR DAMAGES - 8

Ann Davison Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200