Opinion
No. 56708-0-I.
May 14, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-2-30736-1, Carol A. Schapira, J., entered July 13, 2005.
Reversed and remanded by unpublished opinion per Appelwick, C.J., concurred in by Schindler and Dwyer, JJ.
Sandra Jones brought suit against Greyhound Lines, Inc. for injuries related to a fall allegedly sustained upon exiting a Greyhound bus. Greyhound claimed no liability and contributory negligence. The trial court issued jury instructions that included the higher standard of care required for a common carrier, the definition of contributory negligence and the definition of ordinary negligence. The jury returned a defense verdict finding no negligence on the part of Greyhound and its driver. Jones appeals citing jury instruction error, entitlement to a judgment as a matter of law, juror bias and witness issues. Greyhound cross-appeals the exclusion of their expert witnesses and the impeachment evidence. We reverse and remand for a new trial.
FACTS
Sandra Jones brought a personal injury claim against Greyhound for injuries sustained when she fell while exiting a Greyhound bus in the Seattle bus terminal on November 13, 1999. She claimed that Greyhound and the driver were negligent by failing to provide for her safety as she exited the bus. At trial, four witnesses presented conflicting descriptions of the events surrounding Jones' accident. A significant portion of the testimony revolved around the use/lack of use of portable steps to span the distance between the internal bus stairs and the ground.
Jones' son, Darius Jones, testified that he witnessed the fall while waiting for his mother at the bus station. He stated that he watched other passengers exit the bus and became concerned. "And the reason for my concern is that there was a — a stool that was placed down for these passengers to come off the bus. But this stool was wobbly . . . the bus driver moves it underneath the bus . . . whereas really a portion of it in my vision was still sticking out." Jones saw the bus driver extend his arm to his mother, his mother take the driver's arm and step out of the bus. He realized that she could not see the corner of the portable step protruding from under the bus and her foot caught on the step and she fell back into the bus. Darius Jones estimated the distance between the bus's step and the ground to be approximately 24 inches.
Lesharie Taylor, a customer service lead for the Greyhound terminal, also claimed to have witnessed the event. She testified that while the bus was unloading she noticed the portable steps were unstable. She told the driver to change the steps but he ignored her and continued unloading the bus using the unstable portable steps. Ms. Taylor stated that she did not know if the step was under the bus but she saw that when Jones exited the bus "she stepped on it and it wobbled a little bit, and that's when she fell." After the fall, Ms. Taylor completed an accident report describing the incident. "Passenger was departing bus when she fell because the steps there was [sic] not level. Driver had witnessed another customer before this incident almost fall, but did not replace stair. Continued to unload bus." She testified that Greyhound always used the steps, even though she did not know whether the company had a policy requiring their use. She estimated the distance between the bus and the ground to be approximately 26 inches.
Jones testified that every time she had ridden a Greyhound bus they had a portable step to bridge the difference between the internal bus stairs and the ground. However, on this particular trip there was no portable step. She said "the driver had extended me his hand and I took [sic] and went on the left foot and then on the right and there was no step and I was reaching for his hand."
Finally, the bus driver, Jerald P. McCollum, testified that he assisted Jones off the bus and that the fall occurred while she was on the platform. He stated that he did not use the portable steps on the day in question because he never used them. "[F]or the first 20 years we never had'em and I never had a problem . . . I learned it . . . worked better without them." McCollum further explained that some of the terminals did not have portable steps and he was concerned about confusion caused by using the steps at some locations but not others. He always held out his hand and would assist anyone who requested help exiting the bus. As to the fall, McCollum claimed the steps were pushed under the front bumper. He testified that he helped Jones out of the bus and onto the ground then turned to speak to some tourists from Australia or New Zealand. When he turned back to the bus he saw Jones sitting on the steps of the bus.
In addition to the eye witnesses, Robert Bischoff, an operations manager for Greyhound, testified about company policies. He described the warning signage inside the model bus at issue in the accident. "[I]f you're on the bus and you're exiting the bus in front of you, you're looking at a sign that says, 'Watch your step.' There's one directly ahead of you . . . on the face of the front panel on the bus. And we install another one . . . further down . . . on the . . . wall of the bus just before you're exiting the bus." He stated that Greyhound did not have any written policies requiring use of portable steps and drivers could choose whether or not to use the stairs. Bischoff also explained that at the time of the accident few steps were available because Greyhound was in the process of transitioning from wooden steps to metal steps.
After both the plaintiff and defense had rested, Jones brought a motion for a directed verdict. The court denied the motion finding issues of material fact requiring submission to the jury. Because there was no disagreement that Greyhound was a common carrier, the court issued jury instructions that included the higher standard of care required of a common carrier. Greyhound argued a contributory negligence defense so the trial court also instructed on contributory negligence and ordinary negligence. The jury returned a verdict for the defense, finding no negligence. After verdict, Jones brought a motion for a judgment as a matter of law under CR 50, requesting the court overturn the verdict. The trial court denied the motion and allowed the verdict to stand.
ANALYSIS
I. Pre-and Post-Verdict CR 50 Motions for Judgment as a Matter of Law
Upon conclusion of the testimony, Jones moved for a directed verdict on the issues of liability, causation and reasonable and necessary medical treatment. The trial court denied the directed verdict, finding the varied testimony created genuine issues of material fact requiring submission to the jury. After the jury returned a verdict for the defense, Jones moved for a judgment as a matter of law under CR 50. The trial court also denied this relief.
In reviewing a ruling on a motion for judgment as a matter of law we engage in the same inquiry as the trial court. Stiley v. Block, 130 Wn.2d 486, 504, 925 P.2d 194 (1996). "A directed verdict or judgment n.o.v. is appropriate if, when viewing the material evidence most favorable to the nonmoving party, the court can say, as a matter of law, that there is no substantial evidence or reasonable inferences to sustain a verdict for the nonmoving party." Indus. Indem. Co. v. Kallevig, 114 Wn.2d 907, 915-916, 792 P.2d 520 (1990). The court must "defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence." State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). Overturning a jury verdict is only appropriate when the verdict is clearly unsupported by substantial evidence. Burnside v. Simpson Paper Co., 123 Wn.2d 93, 108, 864 P.2d 937 (1994). Because both pre-and post-judgment motions for judgment as a matter of law are reviewed against the same standard, these two assignments of error are considered together.
The four witnesses who described Jones' fall had differing descriptions of the events and reasons for the fall. Even plaintiff's witnesses — Taylor, Darius Jones and Sandra Jones, herself — gave inconsistent testimony as to the cause of the fall. The driver, McCollum gave testimony about the accident as well as procedures for unloading a bus based on his 30 years of experience as a driver for Greyhound. Bischoff testified he was not aware of any Greyhound, state or federal regulations requiring drivers to use portable steps and that all buses have several postings warning passengers to "[w]atch your step."
Given the testimony summarized above, and viewing the evidence in the light most favorable to Greyhound, the trial court correctly submitted the evidence to the jury. The conflicting testimony from the various witnesses necessitates evaluation by the trier of fact. "[I]t is the function of the jury to assess the credibility of a witness." State v. Demery, 144 Wn.2d 753, 762, 30 P.3d 1278 (2001). The motion for directed verdict at the close of testimony was therefore properly denied.
As to the verdict, the jury could have believed McCollum's version of the incident and found Greyhound's evidence persuasive of the company's satisfaction of its duty of care. "[T]he trier of facts may give to the testimony of any witness such weight and credence as it believes the evidence warrants." Segall v. Ben's Truck Parts, 5 Wn. App. 482, 483, 488 P.2d 790 (1971). While Greyhound's status as a common carrier does elevate its duty of care, the jury could have found that duty satisfied by the warning signs and the driver's actions based on 30 years of experience. We cannot conclude as a matter of law that substantial evidence and reasonable inferences to support the defense verdict are so lacking that a directed verdict for the plaintiff was required. The postverdict motion by Jones was properly denied.
II. Jury Instructions
"Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied." Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). Errors of law in jury instructions are reviewed de novo. Id. at 92. An erroneous statement of the law in a jury instruction is reversible error if it prejudices a party. Id.
The trial court issued jury instructions to reflect the parties' theories of the case. Jones claimed that Greyhound breached the standard of care owed by a common carrier; Greyhound argued that Jones was contributorily negligent. The pertinent instructions read:
Instruction No. 10:
At the time of the occurrence in question, the defendant was a common carrier. A common carrier has a duty to its passengers to use the highest degree of care consistent with the practical operation of its type of transportation and its business as a common carrier. Any failure of a common carrier to use such care is negligence. However, a common carrier is not a guarantor of the safety of its passengers. See, WPI 100.01.
Instruction No. 12:
Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances. See, WPI 10.01.
Instruction No. 13:
Contributory negligence is negligence on the part of a person claiming injury or damage that is a proximate cause of the injury or damage claimed." See, WPI 11.01.
Instruction No. 17:
In considering the question of contributory negligence on the part of Mrs. Jones, it must be remembered that, as a passenger, she had a right to assume that driver of the coach had exercised highest degree of care commensurate with practical operation of vehicle in selecting safe place for her to alight, unless the danger was obvious.
Taken individually, each of these instructions is a correct statement of the law. But, Jones objected to the instructions and contended that Coyle v. Metro. Seattle, 32 Wn. App. 741, 649 P.2d 652 (1982) establishes that instructing a jury on both the common carrier standard of care and the ordinary negligence standard constitutes reversible error. Coyle, 32 Wn. App. at 747. In Coyle, the trial court gave the jury the two instructions. Upon review, the court held that
the pattern instruction defining negligence as the failure to exercise ordinary care, WPI 10.01, is an erroneous statement of law with regard to the alleged negligence of a common carrier. It conflicts with the pattern instruction defining the negligence of a common carrier as the failure to exercise the highest degree of care, WPI 100.01, and the two should not be given together without explaining the application of each.Id., at 747. Contrary to Jones' interpretation, Coyle does not hold that the ordinary negligence and common carrier instructions can never be properly issued together, only that the application of each must be explained. Taken as a whole, the jury instructions did not adequately explain the conflicting instructions. This resulted in prejudicial error and required reversal. Id.
In light of Coyle, the question here is whether the differing standards of care have been adequately explained, such that the jury can apply them correctly to the parties. Greyhound contends that the instructions in this case are similar to those found in Anderson v. Harrison, 4 Wn.2d 265, 103 P.2d 320 (1940), as opposed to Coyle. However, Anderson and Coyle are not inconsistent. Both stand for the proposition that issuing the common carrier and ordinary negligence instructions together requires adequate explanation to prevent juror confusion on the application of the standards. In Anderson, the court determined that the common carrier standard and ordinary negligence definition were properly given together because "[t]he court accurately and very meticulously defined 'highest degree of care,' and in at least four instructions advised the jury that respondents owed appellant that degree of care." Id. at 270. These instructions convinced the court that the jurors were not misled or confused by the instructions. Id.
The same cannot be said for the case at hand. Only the four instructions set forth above shed any light on the appropriate standard of care. Nothing in instruction 12 informs the jurors that instruction 12 does not apply to instruction 10 or to Greyhound, or applies only to the contributory negligence definition in instruction 13 or to Jones' conduct. The jury could have used the definition of negligence given in instruction 12 and applied it to the use of the word "negligence" in the common carrier standard in instruction 10. The instructions had the potential to confuse or mislead the jury.
Greyhound urges that jury instruction 17 explains the application of the standards and cures any potential juror confusion. However, instruction 17 does not purport to clarify the use of the conflicting standards of care. It merely tells the jury what Jones could properly assume about Greyhound's conduct. This focus on Jones' expectations and reliance does not equate with the four clear references in the jury instructions found in Anderson. It does not remedy the possible confusion about the proper uses of the conflicting standards of care.
Greyhound further argues that Jones had the opportunity to argue her theory of the case and both attorneys addressed the application of the varying standards in their closing arguments. However, Coyle specifically rejects this argument. "The fact that the Coyles may have been able to argue their theory of the case is immaterial here, since the challenged instruction is an erroneous statement of law as applied to a common carrier and was not cured by the other instructions taken as a whole." Coyle, 32 Wn. App. at 747.
The potential confusion resulting from these jury instructions is presumed prejudicial. "The controlling rule is: 'where instructions inconsistent and contradictory are given involving a material point in the case, their submission to the jury is prejudicial, for the reason that it is impossible to know what effect they may have upon the verdict.'" Coyle, 32 Wn. App. at 743 (quoting Babcock v. M. M. Constr. Co, 127 Wash 303, 306, 220 P. 803 (1923)). Greyhound could have argued that the presumptively prejudicial error was harmless. Not surprisingly given the record, Greyhound has not asked us to engage in harmless error analysis.
The jury instructions did not provide the adequate explanation necessary to use instructions on both the common carrier standard of care and the ordinary negligence standard of care, without prejudice, as required by both Anderson and Coyle. As a result, we reverse and remand for a new trial.
III. Greyhound's Witnesses at Retrial
The trial court refused to allow cross-examination of Ms. Taylor regarding her theft conviction because the evidence had not been previously disclosed and constituted a surprise. Greyhound asks this court to allow this impeachment evidence if the case is remanded for retrial. We need not reach this issue because the trial court's concern was not whether the evidence was proper but the timeliness of its submission.
However, we do reach the issue of the exclusion of defense experts Dr. Peters and Dr. Green since the issue is likely to arise at retrial.
The discovery in this case was difficult and contentious. Prior to trial, Jones moved to exclude defense experts Dr. Green and Dr. Peters because of Greyhound's failure to timely disclose these witnesses. The exclusion of the expert witnesses was granted "due to defendant's history of intransigence and non-compliance with plaintiff's failed attempts to obtain discovery." Greyhound contends the court abused its discretion by imposing such a severe sanction and that the experts should be allowed to testify at retrial.
The trial court has broad discretion in fashioning appropriate discovery sanctions. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). Exclusion of witnesses is a serious sanction. "[I]t is an abuse of discretion to exclude testimony as a sanction absent any showing of intentional nondisclosure, willful violation of a court order, or other unconscionable conduct." Smith v. Sturm, 39 Wn. App. 740, 750, 695 P.2d 600 (1985). The court must explicitly consider whether lesser sanctions would suffice. Id.
In this case, the trial court was forced to intervene several times in order to force Greyhound's cooperation in the discovery process, including two motions to compel. On August 12, 2004, the court ordered Greyhound to respond to Jones' interrogatories. In October 2004, the judge ordered Greyhound to make certain witnesses available for deposition. The court subsequently sanctioned Greyhound $150 and an additional $1,400 in attorney fees for the motions. The court also convened a status conference to ensure Greyhound's compliance in discovery. These attempts to compel Greyhound's cooperation apparently failed.
By December 2004, the court had clearly lost patience with Greyhound's intransigence, especially given that the trial was set to begin in early January 2005. The court granted Jones' motion to exclude with harsh condemnation of defense counsel's behavior.
It is clear from defense counsel's letter of November 23, 2004 and the many letters written by plaintiff's counsel (to note defense's expert depositions) has been met with defendant's deafening silence or hollow promises. The court will not tolerate this type of gamesmanship. Discovery is not supposed to be a game of withholding information which tests opposing counsel's patience or forces opposing counsel to utilize limited resources by noting multiple motions to compel. . . . This is clearly the case of a more experienced attorney taking advantage of a less experienced attorney. When Mr. Richards represented to this court in August 2004 that he would "cooperate" with Mr. Feyissa and his discovery requests, there is scant evidence before the court to demonstrate defense counsel's good faith in following through on that promise.
The court awarded attorney fees and $2,500 in sanctions payable by Mr. Richards, Greyhound's attorney. Admittedly the trial court has not provided a textbook review on the record of alternatives to exclusion of witnesses. However, the discovery history referred to by the court clearly demonstrates that financial sanctions and a discovery conference with the court had been inadequate to correct the behavior. A continuance would have penalized the plaintiff and rewarded the evasive tactics of the defendant. It is a fair inference from the court's description of the conduct of counsel as "gamesmanship" that the discovery evasion was intentional. On these facts we conclude the trial court did not abuse its discretion by excluding the experts. We reverse and remand for a new trial.
DENY, J. and SCHINDLER, A.C.J., concur.