No. 61015-5-I.The Court of Appeals of Washington, Division One.
November 10, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-2-10687-3, Anita L. Farris, J., entered December 14, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Grosse and Becker, JJ.
UNPUBLISHED OPINION.
APPELWICK, J.
This case arises from an accident between a motorcycle and a car, at the intersection of a county road and a state highway. The jury found the driver of the car at fault for negligent driving and the State of Washington at fault for negligent maintenance of the intersection. The State appealed the court’s exclusion of evidence concerning the motorcyclist’s dim headlight and the grant of the plaintiff’s motion for judgment as a matter of law on the issue of comparative fault. The trial court did not err in either its evidentiary decision or its ruling on the issue of comparative fault. We affirm.
Facts
On the evening of November 27, 2004, at approximately 7:15 p.m., Jared Barton drove westbound on State Route (“SR”) 536 on his Suzuki Motorcycle, which he had purchased earlier that year. Korinne Linvog was driving south on Moores Garden Road and came to a stop at the T-intersection with SR 536. As Barton approached the intersection, Linvog pulled out from Moores Garden Road to take a left hand turn and was struck by Barton.
Linvog testified at trial that she did not see Barton’s motorcycle until she began her left turn, that she was unaware of the two large trees on the northeast corner of the intersection, and that she believed she had total clearance from that direction. Prior to the accident, Kim and Rene Pedroza were approaching the T-intersection with Moores Garden Road, from Linvog’s right, and witnessed the accident.
Barton sustained injuries including a fractured arm and a closed head injury. Barton has no memory of the accident or of the events leading to the collision. Linvog sustained minor injuries.
The Washington State Department of Transportation is responsible for maintaining this intersection. To the east of the stop sign at the intersection are two trees, located ten to eleven feet north of the westbound fog line on SR 536 and 60 feet apart from each other.[1]
Barton filed a lawsuit against the State of Washington, Skagit County,[2] Korinne Linvog, and Linvog’s parents.[3] Barton alleged that the State had negligently maintained the intersection by failing to provide adequate sight distance looking east from the stop line at the intersection. The State answered, denying negligence and asserting Barton and Linvog were at fault.
On August 3, 2007, Barton sought partial summary judgment on the issue of his comparative fault. The State opposed the motion and submitted the declaration of Kim Pedroza in its response, which stated that the headlight was “very dim” and that it “was not constant and was fading in and out as though there were electrical problems with it.” The trial court denied the motion on September 14, 2007, stating that there were genuine issues of material fact as to the plaintiff’s comparative fault.
On October 22, 2007, Barton filed a motion in limine to exclude evidence, reference, or argument regarding the brightness of the motorcycle headlight. Barton also filed a motion in limine to exclude the Washington State Motorcycle Operator’s Manual (“DOL” manual);[4] the State’s expert witness John Hunter, who the State proffered would testify that Barton could have avoided the accident had he followed certain strategies specified in the DOL manual; and evidence that Barton did not have a motorcycle endorsement on his Washington driver’s license.
On November 1, 2007, in an oral ruling, the trial court excluded all testimony regarding the headlight, because it would invite too much speculation about whether Barton’s headlight met state standards, and whether there was some sort of electrical problem. The trial court also ruled that Hunter was precluded from testifying that motorcyclists should operate with a different standard of ordinary care than other motorists, or that the accident was avoidable. In addition, the court excluded the DOL manual to the extent that it gives advice to use particular safety techniques that are inconsistent with the ordinary standard of care.
Kim Pedroza did not give testimony about the headlight at trial. Not withstanding the motion in limine, Rene Pedroza testified at trial, [5]
on behalf of the State, that the light was dimming in and out, and that it was not bright. On November 7, 2007, the court allowed Kim Pedroza, a lay witness, to testify that the accident was unavoidable, to which the State objected.
On November 20, 2007, Barton moved for judgment as a matter of law on the issue of his comparative fault, arguing that there was no evidence upon which the jury could reasonably find that Barton acted unreasonably in failing to avoid the collision. The court granted the motion.
On November 21, 2007, the jury returned a verdict of $3.6 million in favor of Barton against both Linvog and the State. The jury found that the actions of Linvog and the State were both the proximate causes of Barton’s injuries, attributing 5 percent fault to Linvog and the remaining 95 percent to the State.
Discussion
I. Exclusion of Evidence Regarding the Headlight
A trial court has discretion regarding the admissibility of evidence and we review its rulings on motions in limine for abuse of discretion. Salas v. Hi-Tech Erectors, 143 Wn. App 373, 14, 177 P.3d 769 (2008). A court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. Olver v. Fowler, 161 Wn.2d 655, 663, 168 P.3d 348 (2007).
The State argues that the trial court erroneously excluded the Pedrozas’ testimony of a very dim headlight fading in and out. Because evidence of a dim light may be probative on issues of causation and comparative fault, the State argues that it was unduly prejudiced, and that Barton did not meet his burden under ER 403. Lastly, the State argues that any issue with the Pedrozas’ testimony was of weight, not of admissibility.
Barton highlights the trial court’s twofold concern: the lack of corroborating evidence or expert testimony regarding illumination distance, [6] and the lack of precision in Kim Pedroza’s declaration about what she saw. Both of these concerns, Barton contends, are sufficient bases on which to exclude evidence of the headlight.
To be admissible, evidence must be relevant. ER 402. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence more probable or less probable than it would be without the evidence. ER 401. Even if relevant, however, evidence may still be excluded if its probative value is substantially outweighed by the likelihood it will mislead the jury. ER 403. A trial court has wide discretion in determining whether evidence will mislead the jury. State v. Luvene, 127 Wn.2d 690, 707, 903 P.2d 960 (1995).
Improper speculation can be the basis for exclusion under both ER 402 and ER 403, as either irrelevant or misleading, respectively. The trial court’s ruling on the evidence of the dim headlight was based on concern that it would tempt the jury to speculate about causation. The trial court also expressed concern that the imprecise evidence would lead the jury to erroneously conclude that Barton’s headlight did not meet the statutory requirements for motorcycle lighting in RCW 46.37.523.[7] The trial court explained:
My concern with this particular piece of evidence is how much speculation would be involved to get there.
The evidence before me is very sketchy. All we have is a witness who literally — I think the declaration is a page long, who says that from some unknown distance, the light appeared dim and to flicker in and out, and that’s about it. Precisely how far she was back is not clear to me. . . .
And more importantly, it appears to me that no one’s going to be able to say that that would take the headlamp outside of ordinary care or outside of — I believe there is an actual rule on headlamps in Washington that they’re legal if they will illuminate a certain distance, and illegal if they won’t. And no one’s been able to say that this headlamp falls below their rule, even if it was to the dimness level, if we could get her testimony precise enough. . . .
In short, normally, I allow all this kind of evidence of what was seen. But I’m very concerned that we’re throwing out a piece of evidence so that the jury can wildly speculate that maybe it didn’t meet the State standards, when there’s no evidence there, and it wasn’t bright enough to be ordinary care, when they really don’t have enough information to draw those conclusions by — no one would — by any kind of preponderance of the evidence.
While the Pedrozas witnessed the accident, and Rene Pedroza testified consistently that Barton’s headlight appeared dim, the trial court reasonably concluded that without any other information regarding the light, the danger for speculation was too great. No physical evidence or other witnesses existed to corroborate Rene Pedroza’s testimony. The trial court did not abuse its discretion when it granted the motion in limine to exclude reference to, or argument regarding, the alleged defect in the headlight.
II. Expert Testimony and Operator Manuals
A trial court’s exclusion of expert testimony is reviewed for abuse of discretion. City of Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158
(2004). A trial court’s exclusion of documentary evidence is reviewed for abuse of discretion as well. Salas, 143 Wn. App. 14.
Washington has an established rule that drivers on the highway are entitled to assume that other users of the highway will properly yield the right of way until the driver knows or should know such right of way will not be granted. Torrez v. Peck, 57 Wn.2d 302, 304, 356 P.2d 703
(1960); see also 6 Wash. Sup. Ct. Comm. on Jury Instructions, Washington Practice: Washington Pattern Jury Instructions: Civil 70.06 (5th ed. 2005).
The State attempted to introduce both the Suzuki owner’s manual and the DOL manual into evidence to define Barton’s standard of care.[8] Both manuals described various defensive techniques that riders could employ to avoid collisions and suggest that riders should assume they are invisible to other drivers.[9] The State also attempted to call Hunter to testify that if Barton had used the information and riding strategies contained in the manuals, he could have avoided colliding with Linvog’s car.
The State argues that the trial court abused its discretion when it excluded Hunter’s expert testimony and the Suzuki and DOL manuals. The State contends that the manuals and Hunter’s testimony established the standard of care for a motorcycle rider. Barton contends that the trial court properly excluded both the operating manuals and Hunter’s testimony, as they purport to impose a higher burden on a motorcycle rider to perceive, react, and respond to an emergency than the ordinary standard of care owed by any driver. Barton also points out that both Hunter’s testimony and the manuals were excluded not because they lacked factual foundation in the case, but because they purport to hold all motorcyclists to a higher standard of care than other drivers, and to a lesser reaction time, both of which are contrary to Washington law.
The State cites Martini v. State, 121 Wn. App. 150, 89 P.3d 250
(2004), in support of its position, where similar opinion, expert testimony, and documentary evidence were admissible. In Martini, the plaintiff drove his car into the rear of a long-haul truck. The truck driver had begun to slow down by downshifting and braking as he neared a construction zone on I-5; just before he came to a complete stop, the plaintiff rear-ended the truck. Id. at 154. The plaintiff sued the driver for breaching his duty of care by not activating his four-way flashers. Id. The trial court admitted the testimony of an expert who alleged that the truck driver should have activated his four-way flashers. Id. at 157. The trial court also admitted the Washington State Commercial Driver’s Guide, advising truckers to use their four-way flashers when driving was very slow or stopped. Id. at 157-58.[10]
Barton correctly distinguishes Martini on the grounds that the expert’s testimony on the scope of the standard of ordinary care did not require the rejection of an established legal right of a favored driver. Martini is inapposite, because the expert witness’ testimony and the Commercial Driver’s Guide did not conflict with the established legal rights and duties of either the truck driver or the plaintiff. Washington law affords the same rights to a motorcyclist as to the operator of other vehicles (that all drivers have the right to assume that other drivers will use ordinary care until he knows to the contrary). Thompson v. City of Seattle, 42 Wn.2d 53, 61, 253 P.2d 625 (1953). Here, the trial court correctly concluded that both Hunter’s testimony and the manuals conflicted with well-settled law affording motorcyclists, like other drivers, the right to assume that other drivers will obey the rules of the road.
While the State acknowledges that under Washington law a driver has the right to assume that other drivers will exercise ordinary care and will obey the rules of the road, it places particular emphasis on the fact that the assumption is not absolute: it is only valid until the driver knows or should know that the other driver is not obeying the rules of the road. The State points out that a driver invoking this rule must not have done anything to confuse or deceive the other driver. Kelsey v. Pollock, 59 Wn.2d 796, 797, 370 P.2d 598 (1962). Because Barton’s headlight appeared to the Pedrozas to be dim, there is a possibility that Barton had confused or deceived Linvog, thereby depriving Barton of his right to rely on the ordinary care standard. Therefore, the State argues that the trial court applied the wrong legal standard.
Linvog testified she was not aware of the trees and did not see the motorcycle. She did not assert she saw a dim light, nor that she was somehow deceived or confused by the light. The State’s argument would only allow the jury to speculate that Linvog may have been confused or deceived. The State has not established that Barton should not have been afforded the presumption that Linvog would obey the rules of the road.
The trial court did not abuse its discretion by excluding the manuals and Hunter’s expert testimony, as both would impermissibly have redefined the standard of care owed by Barton.
III. Lay Witness Testimony
On November 7, 2007, Kim Pedroza testified that Barton had “no chance” to avoid the accident. The State contends that the trial court abused its discretion by allowing Kim Pedroza to give this testimony as a lay witness, as she was not qualified as an accident reconstructionist. Barton contends that Kim Pedroza’s testimony was within the bounds of ER 701, as “`a witness is permitted to state a fact known to or observed by him, even though his statement involves a certain element of inference.'” State v. Wigley, 5 Wn. App. 465, 467, 488 P.2d 766 (1971) (quoting State v. Riggs, 32 Wn.2d 281, 283, 201 P.2d 219 (1949)).
The State relies on Ashley v. Hall, 138 Wn.2d 151, 978 P.2d 1055
(1999), where the Supreme Court held that admission of a similar lay opinion on the avoidability of an accident was an abuse of discretion. In Ashley, a car ran into a child as she was running across the street. Id. at 153-54. The only eyewitness was driving in the other lane as the accident occurred, but was “paying more attention [to the children] than I was to the road.” Id. at 154 (alteration in original). The eyewitness testified twice that the accident was unavoidable; however, plaintiff’s counsel did not object the first time. When counsel objected the second time, the trial court overruled counsel’s objection on the grounds that the eyewitness was permitted to testify about his impressions at the time of the accident. Id. Other lay and expert witnesses gave conflicting testimony as to the avoidability. Id.
The Court in Ashley found that the trial court had abused its discretion in allowing the lay witness to testify, [11] focusing on (1) the thoroughness of his observation, and (2) the fact that an opinion of this nature requires either actual knowledge of speed and distance or
expertise in accident reconstruction. Id. at 158 (emphasis added). The Court explained that, because the eyewitness was not focused on the road, he could not have had actual knowledge of speed and distance, and therefore he had given “a conclusion unsupported by his limited observations.” Id.
Here, unlike the eyewitness in Ashley, Kim Pedroza was focused on the road, testifying that both she and her husband saw the motorcycle light and were tracking it until Linvog pulled out and collided with Barton. Kim Pedroza’s testimony located the car, the motorcycle, and the stop sign in time and space:
A: I was heading eastbound on Memorial Highway, and coming towards me, I saw a vehicle, and — parked at a stop sign, to the left of me, I saw a car. And the car pulled out in front of the motorcycle, and he crashed into her.
Q: How much time went by between the time when the car first starts to pull out and the crash happens?
A: A split second. I mean, he had absolutely no time to react.
. . .
Q: And why do you say that, Ms. Pedroza?
A: Because I — I was watching the vehicle coming towards me, I was very focused on it, and it was the type of accident that was just shocking because it happened so fast. I mean, it was just — I didn’t have time to react in my head to what had happened, and it was just — it was just one of those very quick things.
Q: How would you describe the impact . . .
A: . . . I mean, it — she hit — I mean, he — the motorcycle hit into the side door, and put it to the side . . .
Q: Did it push the car?
A: It pushed the car, yeah, it pushed the car to the other side of the road. And the motorcycle was embedded almost into the car . . .
. . .
Q: (on Linvog Cross): You saw her stopped in the vicinity . . .
A: Correct.
Q: Okay. And it was after it was stopped for some period of time that it pulled out in front of this motorcycle?
A: Correct. Everything looked absolutely normal, until she pulled out.
Q: And you were not concerned about her pulling out in front of you, were you?
A: No. She had time.
. . .
Q: She didn’t gun it, like she’s trying to beat the motorcycle, she just pulled out as you would expect whatever normal would be to you but—
A: I would say that she pulled out quickly, not like she was gunning it, but I would say she was pulling out quickly because she had enough time comfortably to get out in front of me quickly. She didn’t have enough time to go out nice and slow.
Kim Pedroza had basic knowledge of the variables, placing her testimony within the scope of ER 701, as it was rationally based on her perception and helpful to a clear understanding of the material facts. A witness with a means of personal observation may relate it to the finder of fact and then state his “`opinion, conclusion, and impression formed from such facts and circumstances as came under his observation.'” State v. Contreras, 57 Wn. App. 471, 477, 788 P.2d 1114 (1990) (quoting State v. Jamison, 93 Wn.2d 794, 798, 613 P.2d 776 (1980)).
The trial court did not abuse its discretion in allowing Kim Pedroza to testify that the accident was unavoidable.
IV. Judgment as a Matter of Law on Comparative Fault
When reviewing a motion for judgment as a matter of law, an appellate court applies the same standard as the trial court. Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001). “`Granting a motion for judgment as a matter of law is appropriate in a jury trial when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.'” Mega v. Whitworth College, 138 Wn. App. 661, 668, 158 P.3d 1211 (2007) (quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816
(1997)), review denied 163 Wn.2d 1008, 180 P.3d 1292 (2008).
Evidence is “substantial to support a verdict,” so as to justify denial of motion for judgment as a matter of law, if it is sufficient to persuade a fair-minded, rational person of the truth of the declared premise. Bishop of Victoria Corp. Sole v. Corporate Bus. Park, LLC, 138 Wn. App. 443, 454, 158 P.3d 1183 (2007), review denied 163 Wn.2d 1013, 180 P.3d 1290 (2008). If the evidence is as consistent with an inference that does not support the nonmoving party’s case as with an inference that does support it, the nonmoving party has failed to produce the minimum evidence required and any finding by a jury would be based on guess or conjecture. See 14A Karl B. Tegland, Washington Practice: Civil Procedure § 24.12 at 71 (2007).
In an oral ruling, the trial court granted Barton’s motion for summary judgment on the issue of comparative fault, explaining:
[R]egarding the issues raised by the State regarding motorcycle training, ability to maneuver and his experience . . . there was an offer of proof that even with training, with experience, with good ability to maneuver, absent the driver, you can [sic] deny their right to assume that other drivers will follow the rules of the road . . .
So the State’s own expert says the results would have been the same, even with the training, with the ability to maneuver and all of this, unless you agree to deny the driver that right to assume that the other drivers will act according to law.
As to the dim headlight, I already indicated my reasoning. . . . it wouldn’t be nothing [sic] but total speculation here for a jury as to whether it was dim enough to constitute negligence.
The propriety of the court’s decision turns on the reasonableness of the inferences that could be drawn from Pedroza’s testimony about the dim headlight. Here, the State presented evidence, via the testimony of Rene Pedroza, that Barton’s headlight was dim and faded in and out.[12] Rene Pedroza testified, on direct:
Q: And what were your observations of what you saw, when your wife asked you [if he could identify the light that was coming down the road]?
A: I was trying to identify the light which was dimming in and out, we couldn’t identify what type of vehicle it was, as we were coming down the road.
The State argues that it presented sufficient evidence about the dimness of Barton’s light, and drawing inferences in favor of the State, established that Barton’s headlight was defective, that he knew or should have known it was defective, and that his operation of a motorcycle with a faulty headlight fell below the standard of care. The State argues that, because the jury heard Rene Pedroza’s testimony about the dimness of the light, the only remaining issue was for the jury to determine its weight.
Barton argues that the State’s argument relies exclusively on speculative evidence that was properly excluded below (with the exception of Rene Pedroza’s testimony in front of the jury on November 15, 2007). He contends that, because the jury did not have sufficient evidence to raise the question of his comparative fault, the court properly granted judgment as a matter of law.
The State cites Pollard v. Wittman, 28 Wn.2d 367, 183 P.2d 175 (1947) in support of its contention that the court erred in taking the issue of comparative fault from the jury. In Pollard, the defendant driver made a left turn in front of the plaintiff motorcyclist’s path. The trial court granted the plaintiff’s motion for directed verdict on the issue of the plaintiff’s contributory negligence. Id. at 368. The Supreme Court reversed, because substantial evidence existed on the issue of the plaintiff’s headlight, necessitating a decision by the jury on comparative fault. Id. at 376. Along with three witnesses to the accident who gave conflicting testimony as to the motorcyclist’s headlight, and the physical evidence of the headlight (which was tested after the accident and was not operational), the motorcyclist himself testified that his lights were weak and his battery low. Id. at 373-74.
Barton correctly distinguishes Pollard on the grounds that there was no physical obstruction that concealed the motorcyclist, that disputed testimony existed as to whether the headlight was visible at all, and that the motorcyclist testified that his lights were weak.[13]
The State also cites Walker v. Butterworth, 122 Wash. 412, 416, 210 P. 813 (1992), [14] where the court held that the testimony of one witness who did not see any lights on the car contradicted the testimony of the defendant and other witnesses that the lights were in fact on, was sufficient evidence of negligence for the jury to consider. Walker is distinguishable on the grounds that disputed testimony existed (as in Pollard) as to whether the headlight was working at all. Here, the issue was not whether the light functioned, but whether its illumination fell below the statutory minimum.
At this point in the trial, the court had properly excluded the manuals and the State’s expert witness, and had properly decided that Barton had the right to assume that other drivers would obey the rules of the road. The only evidence remaining to prove comparative fault was Rene Pedroza’s testimony that the headlight was dim and faded in and out. To reach the conclusion that the headlight was defective, and that Barton knew or should have known of this defect, additional evidence was required about the distance from which the Pedrozas observed the headlight, and whether Barton’s headlight met the statutory standard for illumination distance. Without this evidence, the jury would have had to engage in substantial speculation to determine whether Barton was negligent. The evidence, viewing it most favorably to the State, was not sufficient to establish Barton’s comparative fault. The trial court’s decision to grant the judgment as a matter of law on the issue of comparative fault was proper.
We affirm.
“(a) Reveal persons and vehicles at a distance of at least three hundred feet ahead when the uppermost distribution of light is selected; [and] (b) Reveal persons and vehicles at a distance of at least one hundred fifty feet ahead when the lowermost distribution of light is selected, and on a straight, level road under any condition of loading none of the high intensity portion of the beam shall be directed to strike the eyes of an approaching driver.”