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Proximate Cause - Does anyone really understand it?

Posted Tuesday, December 20, 2016 by Ed Harper

Proximate Cause - Does anyone really understand this legal phrase?

Washington Pattern Instruction (WPI) 15.01 states the following: “The term ‘proximate cause’ means a cause which in a direct sequence [unbroken by any superseding cause,] produces the [injury][event] complained of and without such [injury][event] would not have happened.” So here, the instruction from the bench attempts to articulate the most misunderstood concept in tort law. Proximate cause is deemed to be referring to a close relationship or nexus to an event. A British Judge, Lord Chancellor Bacon, in 1630 used the Latin phrase “causa proxima” or the law looks to the near cause – hence “proximate cause”. This instruction in essence is used to establish an event with sufficient a closeness in time argument, or proximity to an event. (Prosser & Keeton on Torts, section 42, at p. 273, fn. omitted.)

This applies to a negligence cause of action, where one has to establish duty, breach, proximate cause and damages. Looking at this individually, the breach of a duty is the failure to use reasonable care; damages can be the financial or physical effects of an injury; and proximate cause is the link between the two. Without proximate cause, you always lose your tort claim.

Thus, when incidents are convoluted in how they occurred, the defendant will sit back and attempt to show an inability of the plaintiff to establish proximate cause.

One such case is Schooley V. Pinch’s Deli Market 134 Wn.2d 468, 951 P.2d 749 (1998). This case involved the sale of alcohol to a minor. The court delved into the intricacy of the challenging issue of proximate cause when a young lady (Lori Schooley) was catastrophically injured when she dove into a shallow pool causing her quadriplegia. The issue in the case was whether the defendant, Pinch’s Deli, could be held liable for the injury to Ms. Schooley. Ms. Schooley, a minor, had been drinking alcohol provided to her by another minor. Ms. Schooley had no direct contact with the deli as the deli did not directly sell her the alcohol. However, another teenager provided the alcohol after purchasing the beer at Pinch’s Deli illegally.

Defendant Pinch’s Deli attempted to argue their actions were not the legal cause of Ms. Schooley’s injuries as their actions were too remote in time to be linked to the diving into the pool by Ms. Schooley. The Supreme Court of Washington disagreed, finding there was a duty owed to others who may imbibe the illegally obtained alcohol, and therefore there was a sufficient nexus to the incident in question. In other words, the drinking of alcohol by other minors was foreseeable when Pinch’s failed to act reasonably in failing to prevent the sale of alcohol to minors. Thus, the court held the deli’s actions were sufficiently related to the horrific injury of Ms. Schooley.

Therefore, proximate cause can be found and established. One of the underlying reasons for this includes the overriding public policy in seeking to prevent the sale of alcohol to minors and thus usage of alcohol by minors. Here, the prevention of the sale of alcohol to a minor is so important as a society we want to prevent this from occurring.

Thus, to hold the Deli is within the ambit of our society’s goal to restrict the usage of these illegal substances. The question must be answered affirmatively “The focus is on whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability.” Schooley, at 478-479

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Nondelegable Duties

Posted Friday, December 16, 2016 by Ed Harper

Nondelegable Duties

Washington Pattern Instruction (WPI) 12.09 states the following: “(Fill in person or entity) is not relieved of its duty to (particular duty) by delegating or seeking to delegate that duty to another person or entity.” In the case of a business owner who hired a cleaning company to wax their floors, and if the floors were made too slippery, the business owner is not able to delegate the responsibility they owe to their invitee/customer. For example, it could read like this: “Acme Corp. is not relieved of its duty to provide a reasonably safe premises (having safe non-slippery floors) by delegating or seeking to delegate that duty to another person or entity.”

This jury instruction is for the purpose of articulating the possible factors necessary to obtain a finding of negligence. As former US President Harry S. Truman stated “The buck stops here.” Or in other words, one cannot shirk their responsibility to do or not do something.

Thus, this is also helpful to force the duty upon the defendant that this is a non delegable duty – something that cannot be delegated to someone else. In legal terms, this is called vicarious liability or being responsible for the actions of another. As Black’s Law Dictionary defines Vicarious Liability as “indirect legal responsibility”. Typically, it is how employers are found responsible for the actions of their employees.

The jury instruction committee in Washington has held this instruction should be used when dealing with a case involving subcontracted work is being performed. The jury is to be informed the duty to do something or not do something cannot be passed on to another. Jurors could be misled that the duty is passed on to the subcontractor, when that is not possible – either due to statute, regulation, common law, contract or franchise. Prosser and Keeton on the Law of Torts, Section 71, at 511-12 (5th ed. 1984).

But negligence against one who may not have been involved in the actual motor vehicle collision or wrongful death or premises liability accident may not seem fair or just. However, as Prosser points out further “…the responsibility is so important to the community that the employer should not be permitted to transfer it to another.” Id. at 512. This instruction points out to the jury the need to assign responsibility on those who are acting as principals or supervisors for the one who is acting as an agent or employee. The Latin term is respondeat superior. This means a person in charge is found to be responsible because of their position of having control over another.

As the courts have articulated “nondelegable” is a “formidable word.” And should be used with caution. See Kelley v. Great Northern Railway Co. 59 Wn.2d 894, 904-05, 371 P.2d 528 (1962).

In Kelley, an employee was injured due to certain materials used in a cleaning operation while working for the Great Northern Railway. The injury was tried to a jury and the railroad objected to the use of this instruction. The instruction informed the jury of the nondelegable duty to exercise reasonable care to furnish its employees a reasonably safe place in which to work. In short, the railroad did not object to the instruction, just the usage of the word “nondelegable”. The court agreed with the railroad stating “We agree that it is a ‘formidable’ word, and that it was not necessary to use it to adequately instruct the jury. However, we are satisfied it’s use did not infect the verdict rendered with prejudicial error.”

This points out the fact that an appellate court can find an instruction improperly given, (because here there was no issue of having the work subcontracted out) but then conclude the error was harmless, not having an effect on the verdict. This is known as a harmless error, but an error nevertheless.

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When a Jury Instruction is Incorrectly Given

Posted Tuesday, December 13, 2016 by Ed Harper

Why have Pattern Jury Instructions?

The underlying purpose of the WPI as stated by the Supreme Court of Washington in 1963 in order to assist the bench (judges) and bar (attorneys) in reducing the time and effort which must be expended on the preparation of jury instructions. Justice has been enhanced and the quality of instructions, thus the trying of cases has improved greatly. The Supreme Court encourages the use of these pattern instructions which are an accurate statement of the law. And depending on the circumstances of that case, should be used. Chief Justice Vernon R. Pearson, dated January 1989.

When an error has occurred, and an incorrect instruction of law has been given, the case will overturn on appeal due to the usage of a particular jury instruction. Trial courts must be adept to avoid showing favoritism and seemingly shaping the view of the jury. Jury instructions must state the law which is applicable and be balanced in their view so that each party may argue its theory of the case.

This unpublished case is just such an example. Hopkins v Seattle Schools, No. 73147-5-I, Court of Appeals, Division I of the State of Washington, points out trial courts must get it right or the verdict will be overturned. Briefly, a student of the district, Plaintiff Hopkins was assaulted on school grounds. His attorneys proposed a jury instruction pointing out a special relationship existed (In locus parentis) between the school and a student. “Hopkins argued the undisputed facts showed the School District breached the duty to protect him from foreseeable harm.” Hopkins, citing McLeod v. Grant County, 42 Wn.2d 316, 255 P.2d 360 (1953).

The court declined to provide this instruction, choosing instead to utilize the instruction pertaining to the understanding/assumption that others will exercise ordinary care (see WPI 12.07). The Court of Appeals however, determined it was unfair and prejudicial to not provide “special relationship instruction” for the Defendant School District enhanced duty of care owed to the plaintiff.

Washington Pattern Instruction (WPI) 12.07 states the following: “Every person has the right to assume that others will exercise ordinary care [and comply with the law], and a person has a right to proceed on such assumption until he or she knows, or in the exercise of ordinary care should know, to the contrary.”

The court articulated as follows: “The propriety of giving a jury instruction is governed by facts of the case.” Fergen v Sestero, 182 Wn.2d 794, 802. Thus, the jury was never apprised of the law pertinent to the School District’s special relationship and heightened duty of care. Because the instructions given allowed the jury to apply an ordinary negligence standard without regard to the special relationship and duty of the School District, the error was not harmless and prevented Hopkins from arguing his theory of the case.

So in summation, by giving only an “ordinary care” instruction to the jury, the decision maker was deprived of the legal precedent requiring the School District to use heightened awareness of the students they were supervising.

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Right to Assume Others Will Exercise Ordinary Care

Posted Friday, December 09, 2016 by Ed Harper

Right to Assume Others Will Exercise Ordinary CareWashington Pattern Instruction (WPI) 12.07 states the following: “Every person has the right to assume that others will exercise ordinary care [and comply with the law], and a person has a right to proceed on such assumption until he or she knows, or in the exercise of ordinary care should know, to the contrary.” This jury instruction has an overlap (WPI 70.06 – Right to Assume Others Will Obey Law – Streets or Highways) and thus WPI 12.07 (Right to assume others will exercise ordinary care) instruction should be read in cases that pertain to non-motor vehicle collision cases. The instruction helps to explain the basic understanding – we all have to act reasonably safe — and how one can “assume” to rely upon this understanding. One must act in a way that is responsible and at the same time cognizant of the effect(s) it will have on those around us. A case, Tennant v. Roys, 44 Wn.App. 305 (1986) points out how a court will evaluate whether a jury instruction should or should not be given. Briefly, in Tennant, the guardian for a minor child, Roberta Tennant, brought a claim for wrongful death and the minor’s personal injuries stemming from a motor vehicle vs. motorcycle collision. The jury rendered a verdict in the wrongful death of Ricky A. Roberts, in favor of the defendant, Harvey C. Roys. The trial court denied the motion for new trial. The appellate court upheld these decisions.More specifically, on October 8, 1978, Roberts, riding his motorcycle was following Defendant Roys. Roberts attempted to pass Roys on the right hand side, leading to a collision. There was a factual disagreement as to how the collision occurred - whether Roys merged to the right into Roberts or not. The jury agreed with Roys and ruled against the wrongful death claim.
During the trial, the court chose to deny Plaintiff’s proposed jury instruction (among others) that a motorcycle is entitled to full use of a lane and no motor vehicle shall be driven to deprive any motorcycle full use of the lane. One of the reasons the trial court articulated in denying this instruction is the promulgation of WPI 70.06, the right to assume others will obey the law on the streets and highways. The court further opines the jury would have been misled by the instruction provided by the plaintiff. This proposed instruction added a heightened duty to Mr. Roys, and the court rejected this proposal. Tennant at 309.“Instructions are sufficient if they permit each party to argue his theory of the case, are not misleading, and when read as a whole they properly inform the jury of the applicable law.” Tennant at 308.
“Whether to give a certain jury instruction is within a trial court’s discretion and so is reviewed for abuse of discretion.” Fergen v Sestero, 182 Wn.2d 794, 346 P.3d 708 (2015). Furthermore, “The propriety of a jury instruction is governed by the facts of the particular case. (cites omitted) Jury Instructions are generally sufficient if they are supported by the evidence, allow each party to argue its theory of the case, and when read as a whole, properly inform the trier of fact of the applicable law.” Fergen, at 803. Thus, in summary, the trial court’s decision to provide a specific jury instruction will be reviewed on the abuse of discretion standard, and provided the jury will be assisted, and not misled, the jury instruction should be provided to them.

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The Duty to See

Posted Tuesday, December 06, 2016 by Ed Harper

Duty of Seeing

Washington Pattern Instruction (WPI) 12.06 states the following: “Every person has a duty to see what would be seen by a person exercising ordinary care.”

This instruction falls under the category of whether a person has a responsibility or duty of care in regards to how they act. Prosser, in his seminal work on Torts discusses this issue as follows: “He or she must use such senses as he/she has to discovery what is readily apparent. He/She may be negligent in failing to look, or in failing to observe what is visible when he/she does look.” Prosser and Keeton on Torts, 5th Edition, page 182. Thus, it includes not only the ability to see, but it also focuses on the ability of one’s perception and recognition of what is there.

So, on who claims they did not see an object and that something indeed was there, had they looked carefully, should be found to have violated this requirement and a jury will be so instructed on what the law is regarding this issue.An example from the court’s interpretation of this standard is found in Humes v. Fritz, 125 Wn.App 477 (2005) which held that the trial court did not err in submitting a “duty to see” instruction under the factual circumstances presented.

This case was brought by a crane operator (Humes) who jumped from his crane operating seat when a truck driver, Joe Crowder (employed by Fritz) pulled away with his load still attached to the crane. Apparently, Crowder testified that his truck had side mirrors but blind spots existed. Crowder testified that he had difficulty seeing height in his mirror, as well as areas close to the sides of his truck. He also testified that before he started his truck, he looked back around and did not see the ladder or the cables.

Crowder, as a defendant, was asked whether he would have seen the cables if he had gotten out of his truck. He said “I don’t know. Yeah, I imagine so; Yes.”

At the end of the trial, the court gave WPI 12.06 Duty to See instruction. The plaintiff argued that Mr. Crowder had the ability to see what they were doing outside his truck. And this included the cables being still attached to the trailer. Humes, at 488.

The comment to this instruction includes a warning or caution to judges – not to overly emphasize one’s case over another’s. Here, however, the court opined the ‘duty to see’ instruction in this case did not generate a gross overweighting in favor of Humes. The jury instruction does not overemphasize Humes’ theory regarding Crowder’s ability to see from inside his truck. The instruction instead asks the jury to determine whether a truck driver exercising ordinary care would have stepped outside the truck to see whether could drive away. The use of this instruction was justified by Crowder’s testimony that he could have seen the cables if was outside the truck and that he had an obligation to make sure it was safe to proceed. Therefore, it was not error to give the “duty to see” instruction. Humes at 498.

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