SCHONDER v. DEBORAH THOEN ET AL., 137 Wn. App. 1064 (2007)

No. 24739-2-III.The Court of Appeals of Washington, Division Three.
April 10, 2007.

Appeal from a judgment of the Superior Court for Spokane County, No. 03-2-02492-3, Salvatore F. Cozza, J., entered March 31, 2006.

Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Sweeney, C.J., and Kulik, J.

KATO, J.[*]

Echo Lundeberg agreed to train Deborah Thoen to perform a permanent cosmetic procedure. While in training, Ms. Thoen negligently performed such a procedure and injured Jolie Schonder. Claiming the court improperly excluded certain evidence, Ms. Lundeberg appeals. We affirm.

Ms. Thoen was trained by Ms. Lundeberg to perform a permanent cosmetic procedure. On November 11, 2001, as part of the training, Ms. Thoen performed a permanent color “lipstick” tattoo on Ms. Schonder, who agreed to be a test subject. Clerk’s Papers at 4. After the procedure, Ms. Schonder claimed the permanent ink went out of her lip line and caused disfigurement, pain, and suffering. She filed suit for damages arising from negligence.

Ms. Lundeberg asserted the affirmative defense of assumption of risk. She claimed Ms. Schonder was apprised of the risks in the procedure and had signed a release/consent form acknowledging she was aware of those risks. But Ms. Lundeberg could not provide this document as Ms. Schonder’s file containing it was apparently missing. Ms. Lundeberg thus sought to introduce as evidence an unsigned form along with testimony that Ms. Schonder had signed a similar form and may also have caused its disappearance. Ms. Schonder moved in limine to exclude the evidence.

The court found that admitting the unsigned form and related testimony would inject speculation into the case. In addition, admission of this evidence would prejudice Ms. Schonder because the failure to produce the original form was Ms. Lundeberg’s oversight. The court stated that if the unsigned form itself was inadmissible, testimony regarding the document was likewise inadmissible. The motion in limine was granted.

The jury returned a verdict in favor of Ms. Schonder. This appeal follows.

Whether or not to grant a motion in limine is within the trial court’s discretion. Garcia v. Providence Med. Ctr., 60 Wn. App. 635, 642, 806 P.2d 766 (citing Fenimore v. Donald M. Drake Constr. Co., 87 Wn.2d 85, 91, 549 P.2d 483
(1976)), review denied, 117 Wn.2d 1015 (1991). On review, the granting of a motion in limine will not be reversed absent an abuse of discretion. Id. “A trial court abuses its discretion when its ruling is manifestly unreasonable or based on untenable grounds.” Id. (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971)).

“The trial court must admit relevant evidence that tends to make the existence of a material fact more or less probable.”Medcalf v. Dep’t of Licensing, 83 Wn. App. 8, 16, 920 P.2d 228 (1996), aff’d, 133 Wn.2d 290, 944 P.2d 1014
(1997); ER 401, 402. “The trial court must exclude evidence, however, when its probative value is outweighed by the potential that the evidence will unduly prejudice the other party or confuse the jury.” Id. at 16-17; ER 403.

An unsigned form does not make the existence of a signed one more or less probable. Moreover, evidence of the form is prejudicial. Ms. Lundeberg intended to show that Ms. Schonder, then Ms. Thoen’s employee, caused the disappearance of the signed form and file because she had access to them and her file had disappeared when she left employment with Ms.

Thoen. Introduction of an unsigned form would only have caused confusion for the jury.

Even if Ms. Schonder had signed the release/consent form, it could not be used as a defense in a negligence suit. In Washington, negligent conduct cannot be the subject of a preinjury release. Vodopest v. MacGregor, 128 Wn.2d 840, 861, 913 P.2d 779 (1996).

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., Kulik, J., concur.

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