Opinion
No. 52876-9-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 99-2-20048-9. Judgment or order under review. Date filed: 08/01/2003. Judge signing: Hon. Nicole K. MacInnes.
Counsel for Appellant(s), Paul-Stephen Aita, Ricci Grube Aita PLLC, 1601 2nd Ave Ste 1080, Seattle, WA 98101-3526.
Joseph Andrew Grube, Ricci Grube Aita PLLC, 1601 2nd Ave Ste 1080, Seattle, WA 98101-3526.
Counsel for Respondent(s), John Gilbert Bergmann, Hellsell Fetterman LLP, 1001 4th Ave Plaza Ste 4200, Seattle, WA 98154.
Kristen Dorrity, Helsell Fetterman LLP, 1001 4th Ave Plaza Ste 4200, Seattle, WA 98154.
After sustaining an injury as he entered a freight elevator in Westlake Center, Walid Shahin sued The Rouse Company of Washington, the owner of Westlake Center, and Montgomery KONE, Inc., the manufacturer responsible for the elevator's service and maintenance. Following this court's reversal of the trial court's order granting summary judgment to the defense in an unpublished opinion, Shahin v. Rouse Co. of Washington, No. 48354-4-I, 2002 WL 926807 (May 6, 2002), the parties tried the case and a jury returned a verdict in favor of the defendants. Shahin appeals the trial court's order denying his motion for judgment notwithstanding the verdict or for a new trial.
KONE is the only remaining defendant/respondent.
Shahin contends that he established negligence as a matter of law by producing evidence that KONE violated a Seattle ordinance requiring audible warning buzzers to which KONE offered no evidence of excuse or justification. He also contends that he presented substantial evidence that KONE was negligent. Finally, Shahin argues that the trial court erred by excluding evidence of an alleged subsequent buzzer failure in a different elevator. There is no merit to these contentions. Accordingly, we affirm.
FACTS
On November 12, 1996, while employed at a restaurant in Westlake Center, Walid Shahin attempted to use a freight elevator, known as Elevator 14, and was struck in the head by the elevator safety gate. According to Shahin, the warning buzzer, which was designed to sound at least 5 seconds before and during the time the safety gate lowers from above, did not sound. Shahin's friend Mjahedd Dwikat, who was in Elevator 14 and witnessed Shahin's injury, testified that he did not hear a warning signal, and that as Shahin approached to enter the elevator after him, Dwikat saw the safety door coming down and told Shahin to be careful. According to Dwikat, Shahin appeared to be afraid, started to move back, and hit his head on the sharp edge of the safety gate track. Shortly after Shahin sustained his injury, KONE elevator technician John Humphrey inspected Elevator 14, and determined that the warning buzzer was functioning properly.
Shahin's elevator expert, Vernon P. Keller, testified at trial that applicable law requires a warning buzzer to sound for at least five seconds prior to the closure of the safety gate, and that the failure of the buzzer as described by Shahin and Dwikat demonstrated poor maintenance by KONE. However, Keller admitted that he had not inspected Elevator 14, and that he had never witnessed a documented buzzer failure that spontaneously corrected itself. KONE's elevator expert, Davis Turner, testified that Elevator 14 was properly maintained and that it was highly unlikely that the buzzer failed as described by Shahin and Dwikat.
ANALYSIS
Shahin appeals the trial court's decision to deny his motion for judgment notwithstanding the verdict. A motion for judgment notwithstanding the verdict should not be granted unless the court can say, as a matter of law, that no reasonable inference can be drawn from the evidence sufficient to sustain the verdict. Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980). If, accepting the truth of the nonmoving party's evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, the court determines that there is any justifiable evidence upon which reasonable minds may reach conclusions supporting the verdict, the question is for the jury. Douglas v. Freeman, 117 Wn.2d 242, 247, 814 P.2d 1160 (1991).
Although Shahin moved the trial court for a new trial as an alternative to judgment notwithstanding the verdict, he does not present a separate argument on appeal regarding grounds for a new trial. He does not address the standard of review on a motion for a new trial, does not cite any authority demonstrating that he was entitled to a new trial, and instead requests only reversal of the judgment, entry of judgment on liability in his favor, and remand for a new trial on damages. Brief of Appellant at 14.
Citing Yurkovich v. Rose, 68 Wn. App. 643, 653-54, 847 P.2d 925 (1993), Shahin argues that because the evidence presented established that the buzzer failed, that the buzzer failure constitutes a violation of a city ordinance, and that KONE failed to present any evidence of justification or excuse for violating the ordinance, the trial court should have found KONE negligent as a matter of law. In Yurkovich, the trial court directed a verdict of negligence against a school bus driver and the defendant school districts where undisputed evidence at trial established that the driver failed to activate the bus's stop bar and warning lights when letting off a student, failed to keep her in his sight, and failed to require her to cross in front of the bus, in violation of applicable statutes. Id. at 646, 653.
But here, KONE disputed Shahin's claim that the buzzer failed. Although Shahin and Dwikat testified that they did not hear a buzzer, KONE presented evidence that elevator maintenance person George Brim had no trouble with the buzzer before the incident, and that Humphrey inspected Elevator 14 shortly after the incident and found that the buzzer was functioning properly. KONE supervisor Jim O'Brien and elevator expert Turner testified that they had never experienced an intermittent buzzer failure that would explain this discrepancy. Even Shahin's expert Keller admitted that he had never known a failing buzzer to correct itself. Viewing this evidence in the light most favorable to KONE, the jury could reasonably conclude that Shahin and Dwikat were mistaken, and that the buzzer did not fail to sound. Thus, the trial court properly denied Shahin's motion for judgment notwithstanding the verdict. See Morse v. Antonellis, 149 Wn.2d 572, 574-75, 70 P.3d 125 (2003) (where determination of negligence requires decision of whether to believe or disbelieve particular witnesses, court may not substitute its judgment for that of jury).
Without citation to authority, Shahin also argues that he presented 'overwhelming evidence of KONE's negligence in its maintenance of the elevator,' and that the only proper conclusion the jury could have reached was that KONE was negligent. Brief of Appellants at 9-11. But as KONE points out, the proper question before the trial court was whether the evidence supported any reasonable inference sufficient for a verdict in its favor. Because the jury could reasonably conclude that the buzzer did not fail, the strength of Shahin's evidence regarding whether buzzer failure demonstrates negligent maintenance is irrelevant.
Shahin also appeals the trial court's decision to exclude the testimony of Jeff Stern, who claimed that he was injured when the buzzer failed on Elevator 13 in May 2001. Although the record does not include any written ruling or transcript of the trial court's oral decision on KONE's motion to exclude, Shahin states in his briefing that the court ruled that the evidence would be inadmissible because the incident was remote in time and involved a different elevator. Shahin contends that the evidence was relevant to show that KONE was negligent in its maintenance of the elevator bank, including Elevators 13 14, and that the exclusion of the evidence was particularly harmful in light of KONE's counsel's statement in closing argument that there was no evidence of subsequent elevator malfunctions on Elevator 14.
We review a decision to exclude evidence for abuse of discretion, which occurs when the decision is manifestly unreasonable or based on untenable reasons. Reese v. Stroh, 128 Wn.2d 300, 310, 907 P.2d 282 (1995). In light of the trial testimony from several witnesses, including Shahin's expert, that each elevator has a separate buzzer, Shahin fails to demonstrate that the trial court's decision to exclude evidence of an alleged buzzer failure in Elevator 13 nearly five years after Shahin's injury was manifestly unreasonable or based on untenable reasons. As to opposing counsel's statements, because Shahin failed to object during closing argument at trial, failed to assign error to the argument on appeal, and cites no authority to support his argument on this subject, this court need not address his claim. RAP 2.5(a), 10.3(g).
Affirmed.
GROSSE and BECKER, JJ., Concur.