Opinion
No. 64039-9-I.
September 20, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 06-2-40509-9, John P. Erlick, J., entered July 24, 2009.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Grosse and Lau, JJ.
Pei Wu, a pedestrian walking on the shoulder of a road, was struck by a vehicle and sued the driver for injuries resulting from the collision. A jury found the driver not negligent and returned a verdict in his favor. On appeal, Wu challenges the court's refusal to give a jury instruction on a driver's duty to warn a pedestrian in a roadway and argues she is entitled to a new trial based on the prejudicial misconduct of counsel in closing argument. Finding no error, we affirm.
FACTS
On the morning of August 27, 2006 Wu was walking against traffic on the 10 foot wide shoulder of South Starlake Road in Auburn, Washington. Keith Mathews was driving a pickup truck on the same road at approximately 25 miles per hour. From a distance of several hundred feet, Mathews observed Wu walking toward him on the shoulder. As Mathews approached Wu, he noticed that she was looking down into a bag she was carrying. As the front of Mathews' truck was passing Wu, out of the corner of his eye, Mathews noticed "movement" toward his truck on the shoulder. He heard the sound of an impact and pulled over. The side-view mirror of Mathews' vehicle had come off and Wu was lying on the side of the roadway. Mathews called 911.
A driver who had been behind Mathews also saw Wu lying on the roadside and stopped. That driver did not see the impact, but testified that he did not observe Mathews' truck swerve onto the shoulder.
Wu had no recollection of the accident, but at trial she said that before she was hit, she had been walking on the shoulder about two to three feet from the fogline, which separates the shoulder from the roadway. At the six day jury trial, both parties presented the testimony of accident reconstruction experts. Both experts testified that the collision occurred near the fogline. The expert testifying on Wu's behalf expressed the opinion that Wu was hit on the shoulder-side of the line, whereas Mathews' expert opined that it occurred near the fogline and that Wu was stumbling or falling toward the roadway when she was hit. The jury found Mathews not negligent and the court entered a judgment for the defendant.
DISCUSSION
I. Jury Instruction
Wu proposed giving a jury instruction, in accordance with RCW 46.61.245, stating that "[e]very driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary." Wu asserted that the instruction was appropriate because the evidence established that Mathews had "advance warning" of Wu's presence on the roadway. The defense objected, arguing that no evidence supported giving the instruction. The defense pointed out that, as defined by the instructions and RCW 46.04.0500, the "roadway" does not include the "shoulder," and all of the evidence showed that Mathews observed Wu walking on the shoulder, not on the roadway. Wu agreed there was "no evidence that she was in the roadway." The court concluded the evidence did not support giving the instruction.
Wu challenges the court's decision declining to give her proposed instruction. A trial court has discretion whether to give a particular instruction to the jury, and its refusal to give a requested instruction is reviewed for abuse of discretion. Boeing Co. v. Harker-Lott, 93 Wn. App. 181, 186, 968 P.2d 14 (1998); Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996). When there is substantial evidence to support a party's theory of the case, the party is entitled to have the trial court instruct the jury on that theory. Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 135, 606 P.2d 1214 (1980). Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and, when read as a whole, properly inform the jury of the applicable law. Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). Error in jury instructions is reversible only if the error affected the outcome of the trial. Stiley, 130 Wn.2d at 498-99.
There was no evidence that Mathews had any opportunity to appreciate the danger of a pedestrian on a "roadway" which would have triggered a duty under RCW 46.61.245 to sound his horn as a warning. The only evidence suggesting that Wu was on or near the roadway when she collided with the truck's side-view mirror came from the defense's accident reconstruction expert, who concluded that the impact occurred "on or very near" the fogline. The proposed instruction was not supported by, nor did it correspond to, Wu's theory of the case, which was that Mathew's vehicle drifted from the lane onto the shoulder and struck her. Based on the evidence before it, the trial court did not abuse its discretion in not giving Wu's proposed instruction.
II. Misconduct of Counsel
Wu argues that the judgment should be reversed and she should be granted a new trial, because of misconduct by Mathews' counsel in closing argument. Counsel told the jury he had instructed his client "to talk to [the jury] from [his] heart," and to "let them know the truth from [his] heart," because the jury is "an x-ray machine." Wu objected on the basis that the argument was "outside the evidence of the case." The trial court allowed the argument, but admonished the jury to "disregard any argument not supported by the facts or by the law."
Although CR 59(a)(2) allows a court to grant a new trial on the basis of misconduct "materially affecting the substantial rights" of the moving party, Wu did not move for a new trial. Not every misguided closing argument warrants a new trial.See Carnation Co. v. Hill, 115 Wn.2d 184, 186-87, 796 P.2d 416 (1990) (no substantial likelihood that misconduct affected the verdict although attorney improperly referred to her client's willingness to submit to a polygraph test even though the test results had been excluded from evidence). The remedy of a new trial is appropriate "'only when nothing the trial court could have said or done would have remedied the harm done to the defendant.'" Kuhn v. Schnall, 155 Wn. App. 560, 577, 228 P.3d 828 (2010) (internal quotation marks omitted) (quoting A.C. v. Bellingham Sch. Dist., 125 Wn. App. 511, 522, 105 P.3d 400 (2004)).
In a civil case, a new trial may be granted based on prejudicial misconduct of counsel if the conduct complained of constitutes misconduct, not mere aggressive advocacy, and the misconduct is prejudicial in the context of the entire record.A.C. v. Bellingham Sch. Dist., 125 Wn. App. at 521;Aluminum Co. of Am. v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 539, 998 P.2d 856 (2000) (Alcoa). The misconduct must have been properly objected to and the must not have been cured by court instructions. Alcoa, 140 Wn.2d at 539. Here, the court's comment in overruling the objection brought the jury's attention to the need to disregard argument not supported by the record. The assertion that counsel told Mathews to testify from the heart, the objected to argument, was not supported by evidence. The court's curative instruction and its formal instructions also informed the jury that the lawyers' remarks were not evidence and that they should "disregard any remark, statement, or argument that is not supported by the evidence."
Wu relies on criminal cases and asserts that the argument constitutes improper vouching by counsel. In the context of a criminal case, a prosecutor may argue an inference of credibility based on the evidence, but it is improper for a prosecutor to assert a personal opinion about a witness's veracity. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). It is not misconduct to draw inferences from the evidence about why the jury should believe a witness. An argument is improper only if counsel clearly states a personal opinion, rather than arguing inferences based on the evidence.State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996).
Here, the point of defense counsel's argument was to emphasize that it is the jury's role to "decide who's credible." The jury instructions likewise instructed the jury that they were "the sole judges of the credibility of the witness[es]." In context, counsel was also arguing that Mathews' testimony was credible based on the evidence. Counsel urged the jury to consider the manner in which Mathews testified and to take into account the fact that his testimony was consistent with the statements he made at the time of the accident. Because counsel was arguing inferences from the evidence, the argument was not improper.
Nor was the argument prejudicial, in view of the entire record. The case did not turn on the credibility of Mathews. Mathews did not actually see the collision and his testimony that Wu was on the shoulder as he passed her, was consistent with Wu's testimony. Instead, the case hinged upon the opinions of the accident reconstruction experts, who arrived at different conclusions about whether the collision occurred on the shoulder or on the roadway and whether there was evidence that Wu was stumbling toward the roadway when she was hit. Wu is not entitled to a new trial.
Affirmed.
WE CONCUR: