Opinion
No. 30813-4-II
Filed: May 10, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 00-2-07391-2. Judgment or order under review. Date filed: 08/08/2003. Judge signing: Hon. Katherine M Stolz.
Counsel for Appellant(s), Michelle Menely, Gordon Thomas Honeywell Malanca Peterson, 600 University St Ste 2100, Seattle, WA 98101.
Timothy Lee Ashcraft, Williams Kastner Gibbs, 1301 a St Ste 900, Tacoma, WA 98402-4299.
Counsel for Respondent(s), Brett Andrews Purtzer, Attorney at Law, 1008 S Yakima Ave Ste 302, Tacoma, WA 98405-4850.
Michael Joseph McKasy, Attorney at Law, 6602 19th St W, Tacoma, WA 98466-6131.
Shelly K Speir, Troup Christnacht Ladenburg McKasy et al, 6602 19th St W, Tacoma, WA 98466-6193.
Metals Express, Inc. and Larry Amell, defendants in a personal injury action brought by Fannie Thomas, appeal the trial court's summary judgment order dismissing co-defendant Michael Stanley. They argue that dismissal was inappropriate because there were material questions of fact as to Stanley's negligence. They also challenge the damages award against them, arguing that the trial court erred when it refused to instruct the jury that there could be more than one proximate cause of an injury. Finding issues of material fact as to Stanley's liability, we reverse and remand for trial.
Facts
In November 1997, Michael Stanley's vehicle struck Fannie Thomas's vehicle after he crossed the center line on Highway 509 while attempting to avoid a seven by eight foot metal garage door that fell off the back of a truck owned by Metals Express and driven by Amell. Thomas sued Metals Express, Amell, and Stanley to recover for her injuries from the accident. As an affirmative defense, Metals Express and Amell claimed that Thomas's injuries may have been caused by her own negligence or the negligence of others and requested apportionment under RCW 4.22.070.
Stanley moved for summary judgment, arguing that: (1) he was not negligent; and (2) if he was, his negligence did not proximately cause the accident. Specifically, he argued that:
[H]e was driving his automobile in a lawful manner. The only reason he collided with the plaintiff's vehicle was because of the flying metal garage door that was headed for his vehicle out of the truck of the defendant Metals Express, Inc.
There is simply no negligence established on the part of defendant Michael F. Stanley.
Clerk's Papers (CP) at 37.
Metals Express, Amell, and Thomas opposed Stanley's motion. Metals Express and Amell argued that there were questions of fact as to Stanley's negligence, specifically: (1) whether Stanley was unable to avoid the accident because he was following Amell's vehicle too closely; (2) whether Stanley attempted to turn into a turn lane rather than into oncoming traffic; (3) whether the oncoming traffic was visible to Stanley; (4) whether the garage door landed to the right of Stanley's lane of travel; (5) whether there was a vehicle in the right lane preventing Stanley from moving into that lane rather than into oncoming traffic; (6) whether the garage door hit Stanley's vehicle; and (7) whether Stanley should have attempted to stop or hit the garage door rather than turn into oncoming traffic. Thomas argued that there were questions of fact as to whether Stanley was following too closely in violation of RCW 46.61.145 or whether he violated RCW 46.61.100 by driving on the left side of the roadway.
The same counsel represented both Metals Express and Amell.
RCW 46.61.145 provides:
(1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.
(2) The driver of any motor truck or motor vehicle drawing another vehicle when traveling upon a roadway outside of a business or residence district and which is following another motor truck or motor vehicle drawing another vehicle shall, whenever conditions permit, leave sufficient space so that an overtaking vehicle may enter and occupy such space without danger, except that this shall not prevent a motor truck or motor vehicle drawing another vehicle from overtaking and passing any like vehicle or other vehicle.
(3) Motor vehicles being driven upon any roadway outside of a business or residence district in a caravan or motorcade whether or not towing other vehicles shall be so operated as to allow sufficient space between each such vehicle or combination of vehicles so as to enable any other vehicle to enter and occupy such space without danger. This provision shall not apply to funeral processions.
RCW 46.61.100 provides in part:
(1) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
(a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
(b) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;
(c) Upon a roadway divided into three marked lanes and providing for two-way movement traffic under the rules applicable thereon; or
(d) Upon a street or highway restricted to one-way traffic.
Stanley responded that RCW 46.61.145 did not apply because he was not a "following driver" for purposes of establishing his legal duty to Thomas, quoting Leach v. Weiss, 2 Wn. App. 437, 467 P.2d 894 (1970). He also argued that his 'crossing the center line' was a normal response to the emergency arising from Metal Express's failure to secure the metal door on its truck. CP at 84.
The trial court granted Stanley's motion and dismissed all claims against him. Although the trial court did not specifically address the effect of this dismissal on Metals Express and Amell's affirmative defense, by finding that Stanley was not negligent, it effectively dismissed this affirmative defense as well.
Metals Express and Amell apparently did not request that the trial court issue CR 54(b) findings to allow them to appeal the summary judgment ruling. Instead, in their trial brief, Metals Express and Amell expressed disagreement with the summary judgment ruling, 'reserve[d] all appellate rights related to that decision,' and stated that they were not contesting liability (duty and breach) in light of the ruling. CP at 91. Specifically, they stated:
Solely because of the ruling [on the summary judgment] motion, defendants Amell/Metals Express will not be contesting liability (duty and breach) at trial. However, defendants want to make it clear that they respectfully disagree with the court's ruling on summary judgment dismissing co-defendant Stanley and reserve all appellate rights related to that decision.
CP at 91.
Metals and Amell did contest the nature, extent, and cause of Thomas's injuries. They presented evidence that Thomas had multiple health issues before the accident occurred. Metals Express and Amell then proposed the following instruction:
The term 'proximate cause' means a cause which in a direct sequence produces the injury complained of and without which such injury would not have happened. There may be one or more proximate causes of an injury.
CP at 102 (emphasis added).
The trial court rejected this proposed instruction and, over defense counsel's objection, gave the following proximate cause instruction: The term 'proximate cause' means a cause which in a direct sequence, unbroken by any new independent cause, produces the injury complained of and without which such injury would not have happened.
CP at 136. The trial court also instructed that the jury could find Metals Express and Amell liable only for those injuries proximately caused by the accident and not for preexisting injuries that were not aggravated by the accident.
The trial court provided the jury with the following instructions:
The defendant is liable for any injury which was proximately caused by the occurrence. The plaintiff has the burden of proving what injuries to plaintiff were proximately caused by this occurrence and what amount plaintiff should recover.
CP at 137 (emphasis added).
If you find that before this occurrence the plaintiff had a pre-existing bodily condition which was causing pain or disability, and further find that because of this occurrence the condition or pain or the disability was aggravated, then if your verdict is in favor of the plaintiff, you should consider the aggravation of the condition or the pain or disability proximately due to such aggravation, but you should not consider any condition or disability which may have existed prior to the occurrence or from which plaintiff may now be suffering which was not caused or contributed to by reason of the occurrence.
CP at 138 (emphasis added).
The jury found Metals Express and Amell liable for $176,000 in damages and awarded Thomas fees and costs of $1,219.18. Metals Express and Amell appeal the summary judgment dismissal of the claims against Stanley and the trial court's refusal to instruct the jury that there can be more than one proximate cause of an injury.
Analysis I. Summary Judgment
Metals Express and Amell contend that the trial court erred in granting Stanley's summary judgment motion, arguing, in effect, that there were questions of fact as to whether Stanley breached his duty of care.
II. Standards
We review a summary judgment de novo, from the same position as the trial court. Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). Summary judgment is appropriate where, viewing all facts and inferences in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c), Clements, 121 Wn.2d at 249. 'A material fact is one upon which the outcome of the litigation depends.' Clements, 121 Wn.2d at 249 (citing Jacobsen v. State, 89 Wn.2d 104, 569 P.2d 1152 (1977)). The moving party may also prevail if its position is the only conclusion that a reasonable person could reach. Clements, 121 Wn.2d at 249.
III. Elements of Negligence and Duty of Ordinary Care
The elements of a negligence claim are (1) the existence of a duty to the plaintiff; (2) breach of that duty; and (3) injury to the plaintiff proximately caused by the defendant's breach. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999) (citing Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996)). The existence of a duty is a question of law, but breach and proximate cause are generally questions of fact for the jury. Hertog, 138 Wn.2d at 275 (citations omitted). 'However, if reasonable minds could not differ, these factual questions may be determined as a matter of law.' Hertog, 138 Wn.2d at 275 (citing Sherman v. State, 128 Wn.2d 164, 183, 905 P.2d 355 (1995)). Generally, in an auto accident case like this, the defendant driver owes a duty of ordinary care to other nearby drivers. Robison v. Simard, 57 Wn.2d 850, 851, 360 P.2d 153 (1961).
The parties do not dispute that Stanley was subject to a duty of ordinary care or that Thomas suffered injuries caused by the accident. Instead, Metals Express and Amell argue that questions of fact exist as to whether Stanley breached his duty of ordinary care. Stanley asserts that (1) Metals Express and Amell's actions amounted to a superceding intervening cause that relieved him from any liability; and (2) any possible breach was excused under the sudden emergency doctrine.
Thomas argues that summary judgment was appropriate and adopts Stanley's arguments.
IV. Superceding Intervening Cause
A defendant is not liable in negligence if a new, independent act breaks the chain of causation. McCoy v. Am. Suzuki Motor Corp., 136 Wn.2d 350, 357-58, 961 P.2d 952 (1998); Qualls v. Golden Arrow Farms, Inc., 47 Wn.2d 599, 602, 288 P.2d 1090 (1955). But this doctrine does not apply here because Metals Express and Amell's negligence, failure to secure the door, did not interrupt the chain of causation; instead, it triggered it. See Klein v. Pyrodyne Corp., 117 Wn.2d 1, 17 n. 7, 810 P.2d 917, 817 P.2d 1359 (1991).
V. Sudden Emergency Doctrine and Negligence
Metals Express and Amell argue that the use of the sudden emergency doctrine is not appropriate on summary judgment. But summary judgment is appropriate if there are no issues of material fact and reasonable minds could not differ on the issue.
Stanley next argues that although he crossed the center line, arguably in violation of RCW 46.61.100, summary judgment was still appropriate because the undisputed facts showed that he responded to a sudden emergency.
As a preliminary matter, Metals Express and Amell assert that Stanley cannot rely on the sudden emergency doctrine on appeal because he did not argue this doctrine below. Although Stanley appears to concede that he did not raise this precise issue below, the record shows otherwise. Stanley consistently argued that he was not liable because his actions were a reasonable response to an emergency situation created when the garage door fell off the back of Amell's truck. The reasonableness of a defendant's action in light of a sudden peril is the core of the sudden emergency doctrine, Sandberg v. Spoelstra, 46 Wn.2d 776, 782, 285 P.2d 564 (1955); thus, in effect, he raised this issue below. Additionally, Stanley specifically relied on Leach, which clearly addresses the sudden emergency doctrine.
Although driving on the left side of a two-way road is generally a violation of RCW 46.61.100, and such a violation is evidence of negligence, such a violation may be excused under the sudden emergency doctrine. Leach, 2 Wn. App. at 441-42. The law does not hold a person faced with an emergency or sudden peril requiring instinctive reaction to the same standards as someone given time for reflection and deliberation. Brown v. Spokane Cy. Fire Prot. Dist. No. 1, 100 Wn.2d 188, 197-98, 668 P.2d 571 (1983); Sandberg, 46 Wn.2d at 782-83. The doctrine allows the jury to find that a defendant did not act negligently even if he did not make the best possible choice under the circumstances, as long as the defendant's own negligence did not contribute, in whole or part, to the emergency. Brown, 100 Wn.2d at 197.
The materials the parties submitted in support of and in opposition to Stanley's summary judgment motion all support the conclusion that Stanley turned in response to the metal door suddenly flying out of the back of the truck and that Stanley had several available options, such as hitting the door or swerving into the other lane. Thus, the sudden emergency doctrine clearly applies if reasonable minds could not differ on the issue of whether Stanley's own negligence contributed to the emergency situation.
Metals Express and Amell contend that the record supports a finding that Stanley's driving contributed to the emergency. They argue that, taken in the light most favorable to Thomas, there is a question of fact as to whether Stanley was following the truck too closely and whether he could have avoided the accident had he been following at an appropriate distance. We agree.
The record shows that: (1) the pavement was wet or damp at the time of the accident; (2) Amell's truck and Stanley's vehicle were traveling in the same direction at approximately 40 miles per hour; (3) when Stanley initially saw Amell's truck it was 40 to 50 feet in front of him; and (4) by the time the door flew out of the truck, Stanley was only 30 feet or 3 car lengths behind Amell's truck. Based on these facts, reasonable minds could differ as to whether Stanley was following too closely for conditions. Thus, there remains a question of fact as to whether Stanley's actions breached his duty of ordinary care and, in doing so, contributed to the emergency situation. Accordingly, summary judgment was not appropriate.
VI. Remedy
Having found that the trial court dismissed Stanley in error, the issue now becomes what proceedings are appropriate on remand. Because of the type of error, the timing of the error, and the subsequent proceedings in this case, the remedy issue is complex. To provide the proper remedy, we must first determine whether we are required to remand for retrial on all issues, or whether we may remand for trial on only some issues. If partial remand is appropriate, we must also determine which issues must be addressed on remand.
A. Scope of Remand
Metals Express and Amell contend that we must remand on all issues because once the trial court dismissed Stanley, it heard the case without a necessary indispensable party, as defined by CR 19; and, thus, the remedy is to vacate the jury verdict.
CR 19 requires the court to join a party if 'in his absence complete relief cannot be accorded among those already parties.' But the failure to keep Stanley as a party did not prevent the court from according complete relief to Metals Express and Amell. Rather, it was the court's ruling that Stanley was not negligent that prevented complete relief. Because the jury could not find Stanley partly at fault, Metals Express and Amell were liable for the entire verdict without any possible reduction for the proportionate fault of Stanley. If Thomas had not sued Stanley or had voluntarily dismissed him, the court would have afforded Metals Express and Amell complete relief because they could have argued Stanley's fault. And, if successful, Metals Express and Amell would have been liable for only their proportionate share of the fault for the accident. The court's ruling that Stanley was not negligent prevented this.
But, even presuming that Stanley was a necessary party, the cases Metals Express and Amell cite do not support their argument that we must vacate the earlier proceeding in its entirety if the trial court erred in dismissing the claims against Stanley. Although many of the cases they cite resulted in vacated orders, none involved damages issues and they all involved situations where the missing or dismissed defendant lacked any opportunity to protect its interest in the case. Nothing in the cases Metals Express and Amell cite compels this court to vacate the entire proceeding as long as the parties subject to the results of the proceeding had an opportunity to protect their interests at the appropriate stage of the proceedings.
Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002); Moses Lake Homes, Inc. v. Grant County, 49 Wn.2d 182, 299 P.2d 840 (1956); In re Bridge's Estate, 40 Wn.2d 133, 241 P.2d 439 (1952); Howe v. Johnston, 660 N.E.2d 380 (Mass.App.Ct. 1996).
Citing Walker v. State, 67 Wn. App. 611, 837 P.2d 1023 (1992), reversed on other grounds, 121 Wn.2d 214 (1993), and Bauman v. Complita, 66 Wn.2d 496, 403 P.2d 347 (1965), Metals Express and Amell also contend that retrial on all issues is the presumptive remedy and that because the proof of damages and liability are largely subjective and come from 'the same source,' retrial on both liability and damages is required. Appellants' Supp. Br. at 8-9. Although Walker and Bauman state that there is a presumption of remand on all issues, neither case states that it is required. In fact, the Bauman court specifically recognized that there are instances where partial remand is appropriate: 'We recognize that there are situations, especially where the evidence as to damages is largely objective and the extent thereof is not seriously challenged on the appeal, where a new trial could well be limited to the issue of liability.' Bauman, 66 Wn.2d at 502.
Thus, partial remand is appropriate when the parties potentially bound by the non-remanded issue: (1) had a full opportunity to protect their interests below, Mina v. Boise Cascade Corp., 104 Wn.2d 696, 710 P.2d 184 (1985); France v. Peck, 71 Wn.2d 592, 430 P.2d 513 (1967); cf. In re Bridge's Estate, 40 Wn.2d 133 (remand appropriate when unjoined necessary party had no opportunity to protect its interest in the case); and (2) have not raised any damages issues on appeal, Mina, 104 Wn.2d 696; France, 71 Wn.2d 592; Hough v. Ballard, 108 Wn. App. 272, 31 P.3d 6 (2001). Additionally, courts consider whether: (1) there was a risk that the jury verdict was a compromise verdict that may have accounted for possible negligent acts of another party, Mina, 104 Wn.2d 696; or (2) it is likely that the parties will present new evidence on the issue on remand, Clements v. Blue Cross of Wash. and Alaska, 37 Wn. App. 544, 682 P.2d 942 (1984); see also Rathvon v. Columbia Pac. Airlines, 30 Wn. App. 193, 633 P.2d 122 (1981) (issues not severable where jury did not hear relevant evidence that could potentially affect damages award).
Metals and Amell had a full opportunity to litigate damages at trial, and they have not raised any damages issues on appeal; nor do they argue that the jury verdict was a compromise based on Stanley's possible negligence. Accordingly, we conclude that partial remand is an appropriate remedy here.
B. Issues on Remand 1. Liability: Metals Express and Amell
The first issue we must address is whether Metals Express and Amell are entitled to litigate the issue of their own liability or whether they continue to be bound by their prior admission of liability (duty and breach). Although their admission states that they are not contesting duty and breach primarily because of the trial court's erroneous dismissal of Stanley, they do not argue on appeal that this stipulation was in error. Instead, they argue only that they are not solely liable for Thomas's injuries. Accordingly, we conclude that Metals Express and Amell remain bound by their admission of liability on remand.
2. Liability: Stanley
Next, we recognize that although Thomas originally named Stanley as a defendant, she contends on appeal that the trial court properly dismissed him and that he was not negligent. Accordingly, on remand Thomas may move to dismiss Stanley from this case. CR 21. If Thomas voluntarily dismisses Stanley, Metals Express and Amell will be entitled to a new trial on whether Stanley was negligent, and, if so, whether his negligence was a proximate cause of the accident. If the jury reaches this stage, it must then apportion fault between (1) Stanley and (2) Metals and Amell. Metals and Amell will be liable for only their share of the total damages. RCW 4.22.070(1) ('In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages except entities immune from liability to the claimant under Title 51 RCW,' but joint liability occurs only if (1) the negligent parties were acting in concert, or (2) the plaintiff was not at fault and judgment was entered against more than one defendant; Maguire v. Teuber, 120 Wn. App. 393, 395, 85 P.3d 939, review denied, 152 Wn.2d 1026 (2004); see also Mailloux v. State Farm Mut. Auto. Ins. Co., 76 Wn. App. 507, 511-12, 887 P.2d 449 (1995)). Accordingly, if Thomas dismisses Stanley, the only issues on remand will be whether Stanley was also responsible for Thomas's injuries and, if so, the allocation of liability between (1) Stanley and (2) Metals Express and Amell.
'Under [RCW 4.22.070(1)], any party to a proceeding can assert that another person is at fault. Adcox v. Children's Orthopedic Hosp. Med. Ctr., 123 Wn.2d 15, 25, 864 P.2d 921 (1993). Only the plaintiff, however, can assert that another person is liable to the plaintiff. If no one proves fault, the other person is neither at fault nor liable to the plaintiff. Adcox, 123 Wn.2d at 25-26. If the plaintiff proves fault that is a proximate cause of the plaintiff's damages, the person at fault is also liable to the plaintiff, and judgment is entered as set forth in the statute. If a party other than the plaintiff proves fault that is a proximate cause of the plaintiff's damages, the person at fault is not liable to the plaintiff — the plaintiff has made no claim against him or her — but his or her fault nevertheless operates to reduce the 'proportionate share' of damages that the plaintiff can recover from those against whom the plaintiff has claimed.' Mailloux, 76 Wn. App. at 511-12.
But if Thomas retains Stanley as a defendant, the issue of his liability, the amount of damages (which Stanley never had the opportunity to contest), and the proportionate fault of the parties are sufficiently intertwined to require remand on all issues. Thus, the jury will decide Stanley's liability and, if it finds him liable, apportion fault between the parties; it will also decide plaintiff's damages. If, however, the jury determines that Stanley was not liable, Metals Express and Amell will be bound to the original damages determination because they previously had an opportunity to fully contest the damages.
In summary, we hold that: (1) Metals Express and Amell are bound by their stipulation as to liability; (2) if Thomas dismisses Stanley, Metals Express and Amell are entitled to a trial on Stanley's responsibility for Thomas's injuries and to a proportionality determination, but they are not entitled to challenge the amount of damages; and (3) if Thomas chooses to retain Stanley as a party, Metals Express and Amell are entitled to have a jury determine whether Stanley was liable and, if so, the proportion of liability and Thomas's damages.
VII. Proximate Cause Instruction
Metals Express and Amell next contend that the trial court erred in refusing to instruct the jury that there can be more than one proximate cause of an injury. They argue that they were entitled to this instruction because there was evidence of more than one proximate cause presented to jury.
Jury instructions are sufficient if they are not misleading, permit each party to argue their theory of the case, and properly inform the trier of fact of the applicable law. Brown, 100 Wn.2d at 194 (citing State v. Theroff, 95 Wn.2d 385, 389-90, 622 P.2d 1240 (1980)). We review a trial court's decision on what instructions to give for abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998) (citing State v. Pesta, 87 Wn. App. 515, 524, 942 P.2d 1013 (1997)). A trial court abuses its discretion when its decision is based on untenable grounds or reasons, or when its decision is manifestly unreasonable. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993) (citation omitted).
At trial, Metals Express and Amell argued and presented exhibits suggesting that at least a portion of Thomas's claimed injuries were preexisting conditions or other conditions not related to the accident. Because the trial court had previously determined that Stanley was not liable as a matter of law, they could not argue that Thomas's injuries were caused by a third party. Although the trial court did not instruct the jury that there could be more than one proximate cause of an injury, it clearly instructed the jury that it should hold Metals Express and Amell liable for only those injuries caused by the accident, and not for any preexisting or unrelated injuries. These instructions allowed Metals Express and Amell to argue that they were not liable for injuries that were not proximately caused by the accident, and the trial court's refusal to give their proposed proximate cause instruction was not error.
Although the trial court's refusal to give this instruction was not error in light of its summary judgment ruling, because the jury on remand will be considering Stanley's fault, Metals Express and Amell will be entitled to have the jury instructed that there may be more than one proximate cause of an injury.
We reverse and remand for trial and other proceedings in accordance with this opinion.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and VAN DEREN, J., Concur.