No. 24552-7-III.The Court of Appeals of Washington, Division Three.
June 19, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 02-2-05641-0, Jerome J. Leveque, J., entered September 2, 2005.
Affirmed
by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Kulik, J.
BROWN, J.
Angela Holbrook sued Lane D. Hopkins and Spokane County for injuries sustained as a result of an automobile accident. Ms. Holbrook turned down separate settlement offers from Mr. Hopkins ($15,000) and the County ($25,000). The trial court submitted the issue of Ms. Holbrook’s contributory negligence to the jury over her objection. The jury found Ms. Holbrook fault free and Mr. Hopkins and the County equally liable for $27,000 in damages. Ms. Holbrook contends the trial court should have decided liability as a matter of law. She further contends the trial court improperly excluded certain evidence. On cross-appeal, Mr. Hopkins and the County contend the trial court erred in deciding Ms. Holbrook prevailed, considering the settlement offers. Because Ms. Holbrook prevailed on the liability issues and the trial court did not abuse its discretion in its evidence ruling or in deciding who prevailed, we affirm.
FACTS
Ms. Holbrook was traveling west on a one-way section of Sprague Avenue. Mr. Hopkins approached Sprague from Sargent Road, traveling behind a large truck. He stopped at a stop sign, which was next to a one-way sign, and turned east onto Sprague, striking Ms. Holbrook’s vehicle near the front, driver’s side. Ms. Holbrook was injured. Ms. Holbrook sued Mr. Hopkins, and later added the County for its failure to properly warn drivers of the one-way street. Mr. Hopkins raised Ms. Holbrook’s contributory negligence based on an accident reconstructionist’s opinion that Ms. Holbrook failed to take evasive action. Ms. Holbrook rejected pretrial offers of settlement from Mr. Hopkins of $15,000 and the County of $25,000.
Use of undisclosed learned treatises in direct or cross-examination of any expert witnesses were precluded in limine before trial. But defense witness, Dr. Peter E. Zografos, a chiropractic orthopedist, testified, without objection, about the findings in “Biomechanics of the Spine” the “Bible” of the movement of the spine in support of his opinion that spinal manipulation was contraindicated for an alleged nerve problem. Report of Proceedings (RP) at 1225. In response, Ms. Holbrook tried to utilize plates from two anatomy books to have Dr. Zografos help the jury “understand the location of the greater occipital nerve.” RP at 1237. The court, noting Ms. Holbrook’s failure to object, sustained a defense objection based on the prior motion in limine. Later, the court added: “We’ve got exhibits galore on the head and structures of the neck and the nerves and the illustrations and the testimony, and it was getting to be a bit cumulative. I thought that you had enough tools to work with to discuss that part of the anatomy.” RP at 1255.
At the close of evidence, Ms. Holbrook unsuccessfully requested a directed verdict, now referred to as judgment as a matter of law, under CR 50(a), on Mr. Hopkins’ negligence and Ms. Holbrook’s lack of contributory negligence.
The jury found Mr. Hopkins and the County equally negligent and Ms. Holbrook not negligent. The jury awarded Ms. Holbrook $27,000 in damages. The court entered a joint and several judgment against Mr. Hopkins and the County for $27,000. The trial court awarded $2,851.68 in costs over objections from Mr. Hopkins and the County. Ms. Holbrook unsuccessfully requested a new trial and appealed. Mr. Hopkins and the County cross-appealed the cost award.
ANALYSIS A. Liability Motions
The issue is whether the trial court erred in denying Ms. Holbrook’s CR 50(a) motions for judgment as a matter of law on the issue of Mr. Hopkins’ negligence and Ms. Holbrook’s contributory negligence. She contends Mr. Hopkins was negligent as a matter of law for not obeying the traffic rules and she had no contributory negligence because she was the favored driver. Because this situation is similar to that arising from a failed summary judgment, and the issues have been resolved by the jury favorably to Ms. Holbrook, we see little point in raising this issue.
Nevertheless, CR 50(a)(1) provides that during a jury trial the court may grant a motion for judgment as a matter of law if the nonmoving party has been fully heard on the issue and there is no legally sufficient basis for a reasonable jury to find for the nonmoving party. The trial court properly grants a motion for judgment as a matter of law if, after viewing the evidence in the light most favorable to the nonmoving party, “`there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.'” Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001) (quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997)). Substantial evidence is the amount sufficient to persuade a fair-minded, rational person of the truth of the declared premise. Guijosa, 144 Wn.2d at 915.
Mr. Hopkins averred a large vehicle was in front of him and he could not see the County’s one-way sign. He also presented expert testimony that there should have been more warning signs. Based on the evidence presented, there was a reasonable possibility that Mr. Hopkins was not negligent. Given the evidence and reasonable inferences from the evidence, the court properly submitted this issue to the jury. And, at trial, Mr. Hopkins offered expert testimony that Ms. Holbrook was contributorily negligent in failing to take evasive action.
“`Generally, the question of contributory negligence is for the jury to determine from all the facts and circumstances of the particular case, and it is only in rare cases that the court is justified in withdrawing it from the jury.'” Baxter v. Greyhound Corp., 65 Wn.2d 421, 426, 397 P.2d 857 (1964) (quoting McQuillan v. Seattle, 10 Wash. 464, 465, 38 Pac. 1119 (1896)). A court may determine the question of contributory negligence as a matter of law “where the facts are undisputed and but one reasonable inference can be drawn from them.” Id.
Here, reasonable minds could differ upon whether Ms. Holbrook was guilty of failing to take evasive action. In any event, because the jury resolved the liability issues favorably to Ms. Holbrook, she fails to explain what relief could now be granted.
B. Evidence Ruling
The issue is whether the trial court erred in sustaining Mr. Hopkins’ objection to Ms. Holbrook’s cross-examination of Dr. Zografos in light of the court’s order in limine.
Dr. Zografos testified without objection about the findings in “Biomechanics of the Spine” the “Bible” of the movement of the spine. RP at 1225. On cross-examination, Ms. Holbrook wanted to introduce pictures from two medical books to aid the jury’s understanding of certain nerve locations. The court sustained a defense objection based on the prior motion in limine and because the anatomy plates were cumulative.
Evidence rulings are left to the sound discretion of the trial court. We will not reverse evidence rulings absent an abuse of discretion. State v. Teuber, 109 Wn. App. 640, 643, 36 P.3d 1089 (2001). An abuse of discretion occurs only where the trial court’s exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons. Id.
The trial court correctly noted Ms. Holbrook failed to object. And, the court decided the anatomy plates were cumulative. Thus, the court gave tenable reasons for sustaining the objections of Mr. Hopkins and the County. The trial court did not err.
C. Cross-Appeal
The issue is whether the trial court erred in awarding Ms. Holbrook her costs as the prevailing party. Mr. Hopkins and the County contend Ms. Holbrook was not the prevailing party because their $40,000 combined offers of judgment were more than the $27,000 judgment she received.
We review a cost award for an abuse of discretion. In re Guard. of Spiecker, 69 Wn.2d 32, 34-35, 416 P.2d 465 (1966). A trial court abuses its discretion when its decision is manifestly unreasonable, based on untenable grounds, or when untenable reasons support the decision. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
In superior court actions, “the prevailing party shall be entitled to his or her costs.” RCW 4.84.030. Under CR 68, a losing defendant who makes an offer of judgment that is rejected may still be considered prevailing “[i]f the judgment finally obtained by the offeree is not more favorable than the offer.” In other words, a “party who rejects a CR 68 offer and finally obtains a judgment less than the offer cannot be considered a `prevailing party’ pursuant to RCW 4.84.030.” Tippie v. Delisle, 55 Wn. App. 417, 421, 777 P.2d 1080 (1989).
Here, Mr. Hopkins offered $15,000 and the County offered $25,000. Neither amount is more than the $27,000 joint and several judgment. Mr. Hopkins and the County offer no authority for their argument that their offers should be combined, and we are not persuaded the trial court erred. It correctly ruled, “[h]er claim for costs however can only be made against the party against whom she exercises that award in an amount in excess of the judgment. She can only get it once.” RP at 1739.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and Kulik, J., CONCUR