In a unanimous decision, the Division II Court of Appeals ruled that Superior Court Judge Kathryn Nelson erred when she dismissed the suit Linda Ann Dominguez brought against the city in 2005.

Dominguez’s claims should be heard by a jury, the three-judge panel said in a decision released Tuesday.

Her husband, Michael Dominguez, died in April 2004.

According to court documents, he was driving his Harley-Davidson on Highway 702 in eastern Pierce County about 12:30 a.m. when he drove into the back of a Ford Escort that was stopped by a flagger from Leeward Enterprises. The flagger was directing traffic for Tacoma Power, whose crews were repairing a broken utility pole nearby. Tacoma Power is a city department.

Michael Dominguez, 50, later died at Madigan Army Medical Center. He was a resident of Yelm.

Dominguez claimed in her lawsuit that the city and Leeward Enterprises failed to properly install warning signs and lighting to alert drivers to the repair work.

She alleged “that the city was negligent because the reflective signs were improperly spaced and the flagger was not standing in a lighted station,” according to court records. One of the signs stated, “Left lane closed ahead,” but the flagger had stopped traffic in the right lane, documents state.

Dominguez is seeking more than $2 million in damages for her two children and herself, according to court records.

The city admitted that the signs and the lighting did not meet industry standards, but its lawyers argued in court pleadings that it didn’t matter. Michael Dominguez was intoxicated at the time of the wreck and had plenty of time to stop despite the substandard warning devices, they said.

The first warning sign – which read, “Be Prepared to Stop” – was posted more than 1,100 feet from where the repair work was being done, city lawyers wrote in court pleadings.

They also cited the opinion of then-state toxicology lab manager Ann Marie Gordon, who estimated that Michael Dominguez’s blood-alcohol level at the time of the wreck probably was at least .08, the legal level of intoxication in Washington. Gordon extrapolated that figure from the fact that Dominguez’s blood-alcohol level was .05 nearly 90 minutes after the crash. She later resigned her position at the state lab after a whistle-blower reported she’d falsely certified quality-assurance samples used in drunken-driving breath tests.

The city also argued that the motorcycle had been improperly modified, which might have contributed to the wreck.

The appeals panel ruled there was enough evidence in dispute to merit a trial, and it sent the case back to Nelson with orders that one be held.

“It will be for the jury to decide the extent to which the city’s failure to properly sign, light and warn motorists of the road closure and Michael’s alcohol consumption and motorcycle modifications contributed to his death,” the panel ruled.

A trial date has not been scheduled.

Adam Lynn: 253-597-8644

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