[1] The authority of the trial court to summarily dismiss an action on the opening statement is recognized in our state. See Bartel v. Brockerman, 49 Wn.2d 679, 306 P.2d 237 (1957); and Impero v. Whatcom Cy., 71 Wn.2d 438, 430 P.2d 173 (1967). While the purposes of the procedure may serve to prevent the unnecessary expenditure of time and money to both litigants and court, nonetheless the trial judge, as a matter of justice, must be slow to grant such a motion.
Further, absence of the word "abnormal" did not prevent Northern from arguing its theory of the case, especially given other jury instructions. Impero v. Whatcom Cy., 71 Wn.2d 438, 430 P.2d 173 (1967). Discussion.
where the concurrent or successive negligence of two or more persons combined together results in an injury or loss to a third person, and the negligence of the one without the concurring negligence of the other would not have caused the injury or loss, the third person may recover from either or both for the damages suffered. Ringaard v. Allen Lubricating Co., 147 Wn. 653, 655-56, 267 P. 43 (1928);see also Impero v. Whatcom Cy., 71 Wn.2d 438, 447, 430 P.2d 173 (1967). We note that Ringaard was decided long before the 1986 tort reform act under which damages are apportioned among all parties if the jury finds the plaintiff was also negligent.
we perceive no reason why the same opportunity should not be afforded to a party facing dismissal in civil trials. Although the courts have not expounded as pointedly on the opportunity to repair an opening statement in a civil trial, as compared with one in a criminal trial (People v. Kurtz, supra), it is, nevertheless, evident from a review of civil case decisions that such a procedure is at least contemplated (Clews v. Bank of N.Y. Natl. Banking Assn., 105 N.Y. 398, supra; Garrison v. McCullough, 28 App. Div. 467; Ward v. Jewett, 4 Robt 714; Stamm v. Purroy, 170 App. Div. 584, supra; Eckes v. Stetler, 98 App. Div. 76; Black v. Judelsohn, supra; Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App. Div. 682, supra), and if courts have not expressly endorsed the practice in so many words, we do so today, and thereby acknowledge the propriety and desirability of an approach that has been recognized in other jurisdictions (see, Stone v. Millstein, 804 F.2d 1434; Imperov Whatcom County, 71 Wn.2d 438, 430 P.2d 173; Gibson v Grant, 766 S.W.2d 706 [Mo]; Wilkey v. State ex rel. Smith, 238 Ala. 595, 192 So. 588; Winter v. Unaitis, 123 Vt. 372, 189 A.2d 547; Ambrose v. Detroit Edison Co., 380 Mich. 445, 157 N.W.2d 232; Marcum v. Sagehorn, 660 S.W.2d 426 [Mo]; Passaic Val. Sewerage Commrs. v. Brewster Son, 32 N.J. 595, 161 A.2d 503; Auto Owners Mut. Ins. Co. v. Phillips, 12 Ohio Misc. 167, 227 N.E.2d 420). IV
Smith v. Mannings, Inc., 13 Wn.2d 573, 577, 126 P.2d 44 (1942). Accord, Impero v. Whatcom County, 71 Wn.2d 438, 450, 430 P.2d 173 (1967); Davis v. Bader, 57 Wn.2d 871, 874, 360 P.2d 352 (1961). Instruction No. 13 reads as follows:
Consequently, the plaintiffs' proposed instruction improperly directed the jury on an issue of fact. Error cannot be successfully urged relative to the trial court's refusal to give an erroneous instruction. Impero v. Whatcom County, 71 Wn.2d 438, 430 P.2d 173 (1967). The cases relied upon by plaintiffs, i.e., First-City Bank Trust Co. v. Doggett, 316 S.W.2d 225 (Ky. 1958), and Werker v. Knox, 197 Wn. 453, 85 P.2d 1041 (1938), are not persuasive. The former does not express the Washington rationale for the family car doctrine which has been consistently reiterated since the doctrine's adoption in 1913.
Although it is difficult to understand how the defense of estoppel would apply, we do not come to the question because neither Segale nor the State pleaded it as required by CR 8(c). Impero v. Whatcom County, 71 Wn.2d 438, 430 P.2d 173 (1967).
[2] In this state, trial courts are unquestionably empowered to dispose of civil actions on the opening statement of counsel for a party. Impero v. Whatcom County, 71 Wn.2d 438, 447, 430 P.2d 173 (1967); Keron v. Namer Inv. Corp., 4 Wn. App. 809, 811, 484 P.2d 1152 (1971). The right to enter judgment at the opening statement stage of a trial is based on the rationale that to do so prevents the unnecessary expenditure of time and money to both litigants and courts.
Plaintiffs further argue that instruction No. 11 ( see footnote 2 supra) incorrectly states the law. The same instruction given in this case as instruction No. 11 was given in Impero v. Whatcom County, 71 Wn.2d 438, 450, 430 P.2d 173 (1967), also a business invitee case, and it was there held to correctly state the applicable law. In the present case, there was evidence from which the jury could believe that plaintiff walked down a steep, slippery and rocky ramp which had several deep holes in it and that she fell on it. There is also testimony from which they could believe that she was familiar with the ramp or incline having walked up or down it on some 12 to 16 prior occasions and that she did so on this occasion while she was under the influence of intoxicating liquor.
[3] The failure of appellant's counsel to urge these additional theories of trespass and breach of lease at the trial court level precludes their consideration on appeal. Impero v. Whatcom County, 71 Wn.2d 438, 430 P.2d 173 (1967); Riblet v. Ideal Cement Co., 57 Wn.2d 619, 358 P.2d 975 (1961). However, appellant's theory of trespass is not one of trespass governed by RCW 4.16.080 (1), because Namer did not negligently enter upon real property or cause a third person to do so.