The Harper Law Blog

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“Burden of Proof”

Posted Thursday, September 29, 2016 by Ed Harper

Burden of Proof

Two Auto Accidents causing overlapping and indivisible injuries “Burden of Proof” shifts to Defendants

Generally, the plaintiff (injured party) has the burden of proof to establish their injuries. Burden of Proof in Washington is defined as “When it is said that a party has the burden of proof on any proposition…you must be persuaded, considering all the evidence in the case, that the proposition…is more probably true than not true.” Washington Pattern Jury Instructions (WPI) 21.01.

This shifts when you’ve had two auto accidents: The burden of proof becomes the defendants’ responsibility, in which they determine which injuries they have caused and are accountable for.

In Cox v. Spangler, 141 Wn.2d 431 (2000) the court reaffirmed this to be the law in the State of Washington.

In this case, the plaintiff, Deborah Cox was injured initially in May 1993 in a rear-end collision. This collision was deemed to be the fault of a co-employee. Thus, Ms. Cox could not bring a claim against her fellow employee due to the limitations of RCW 51 – the Washington Worker’s Compensation statute. (You cannot sue your employer or fellow employee for their negligence for injuries sustained during the course and scope of your employment.)

Subsequently, she was injured a second time in November 1993 in another rear-end collision. The injuries were substantially similar, and were primarily neck, and low back injuries including a small herniation in her lower back.

The issue in Cox v. Spangler is whether Plaintiff Deborah Cox could recover against Defendant Spangler (November 1993 accident) for all of her injuries? Short answer – yes.

The court articulated their ruling based on the indivisibility of the injuries. Once a plaintiff has proven some damage from more than one accident, the burden has shifted.

If the defendant in the second accident could not specifically apportion which injuries they were responsible for, then they are responsible for all of the injuries.

Jury instruction given in Cox regarding apportioning damages – “If you find that the plaintiff was injured in the accident of May 19, 1993 and the accident of November 2, 1993, and that said accidents caused the plaintiff injury, then the burden of apportioning plaintiff’s injuries between the two accidents is upon the defendants. If you further find that plaintiff’s injuries are indivisible, then the defendants Spangler are responsible for the entire injury.”

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Posted Tuesday, September 27, 2016 by Ed Harper


WPI 70.09 - Bicyclists – Statutory Rights and Duties

A person riding a bicycle upon a roadway has all the rights of a driver of a motor vehicle and must obey all statutes governing the operation of vehicles except for those statutes that, by their nature, can have no application.

Pudmaroff v Allen, 138 Wn.2d 55, 977 P.2d 574 (1999)

Bicyclists are also entitled to some choices - three (3) options for bicycles

The case of Borromeo v. Shea, 138 Wn.App. 290, 156 P.3d 946, construes RCW 46.61.770 to mean that a bicyclist is allowed three options as to where to ride their bicycle:

1) Choose to ride in through lanes as near to the right side of the right through lane; or

2) On the shoulder; or

3) In a designated bike lane.Borromeo, supra, at 294-95.

The Borromeo v. Shea case raises another question about rules of the road for drivers and bicyclists. Here, the bicyclist was riding in a bike lane, but in the direction opposed to the flow of traffic. He was injured when he was hit by a car turning onto the roadway from a parking lot. The jury found the driver not negligent. Borromeo, at 292.

In Borromeo, the question pertained to whether a bike lane is part of the roadway. (Option #3) A bicycle is a vehicle. A roadway is “that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder even though such sidewalk or shoulder is used by persons riding bicycles.” Thus, a plain reading of the statutes shows that unlike a multiuse trail or crosswalk, a bicycle lane adjacent to regular traffic lanes is both designed and ordinarily used for vehicular travel and is thus part of the roadway. Borromeo, at 296.

Therefore, the issue related to bicyclists using the far side or the right lane (option #1) indicates the court instructs the bicyclist to ride to the far right of the right through lane means the bicycle as the slowest vehicle, should ride as far out to the right hand side and out of the way as much as possible.

Option #2, riding on the shoulder, is self-explanatory. As a shoulder is an improved or unimproved portion of the roadway, where it can be expected cars will drive upon. A bicyclist at this location is out of the way at this location as well.

The conclusion here in Borromeo, the plaintiff lost this case on appeal because even though a bicyclist has options, once an option is chosen (here riding in the bike lane) the bicyclist must recognize “ordinary care” must still be exercised. The jury considered riding the wrong or opposite direction in the bike lane, as compared to all of the other traffic, was not sufficiently “ordinary” to allow the claim to be viable in this instance.

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Premises Liability - Location, Location, Location

Posted Thursday, September 22, 2016 by Ed Harper

There are 3 definitions that govern premises liability as well as real estate property values.

The State of Washington relies on an antiquated distinction articulated for numerous centuries, dating back to English Common Law – of liability and the duty of the landowner – which depends on the status of the one on the property. They are defined as Invitees, Licensees, and Trespassers.

The standard of care which a possessor of land owes to an entrant upon the land depends upon whether the entrant is a trespasser, licensee or business invitee. (Restatement (Second) of Torts Sections 328-344 (1965)) So to be clear, the three items are defined as follows:

Invitee is “one who is invited onto the premises, either by express or implied permission, to enter or remain on land for a purpose directly or indirectly connected with the business dealings (providing an economic benefit) of the possessor of the land.” (Restatement (Second) of Torts Sec. 332, and Thompson v. Katzer, 86 Wn.App. 280, 286, 936 P.2d 421)

A licensee is “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” (Restatement (Second) of Sec. Torts 330, and Younce v. Ferguson, 106 Wn.2d 658 at 667, 724 P.2d 991 (1965))

And a trespasser is “a person who enters or remains upon land in possession of another without a privilege to do so created by the possessor’s consent or otherwise.” (Restatement (Second) of Sec. Torts 329)

Why should we care about the status of a person? For the reason that this determines the amount of care or responsibility we need to offer to those on our property. Section 343 of the Restatement Second of Torts, “establishes that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if:1. he knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and 2. should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and 3. fails to exercise reasonable care to protect them against the danger.

(Iwai v. State, 129 Wn2d 84, 93-94, 915 P.2d 1089 (1996))

To a licensee, a possessor of land is liable for injuries caused by a condition on the land only if:1. the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and 2. the possessor rails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and 3. the licensees do not know or have reason to know of the condition and the risk involved.

(Tincani v. Inland Zoological Society, 124 Wn. 2d 121, 133, 875 P.2d 621)

And to a trespasser, generally no duty of care with respect to safety of conditions of premises (exception for some known trespassers) but cannot intentionally ignore them and possessor must still refrain from intentionally or willfully injuring them.

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Two Cars Meet in an Unexpected Manner

Posted Monday, September 19, 2016 by Ed Harper

Two Cars Meet in an Unexpected Manner

Whenever there is an automobile accident at an uncontrolled intersection, one may ask “who is at fault?” this is a common occurrence for cars especially on small side streets in modern suburbia.

An uncontrolled intersection is one where there are no traffic control devices (signs, and/or signals) to inform a driver to yield or stop at the intersection.

There is a basic rule for cars arriving at an uncontrolled intersection. (RCW 46.61.180) When cars approach or enter an intersection from different highways at approximately the same time, the car on the right becomes the favored driver. Thus, the car on the left needs to yield the right of way.

However, issues often arise. In an intersection case, the favored driver on the right may assume that the driver on the left will yield the right of way. This assumption continues in effect until the favored driver becomes aware, or in the exercise of reasonable care should have become aware, that the right of way will not be yielded. (Massengale v. Svangren, 41 Wn.2d 758, 252 P.2d 317 (1953))

Thus, one may ask, when does a driver “become aware, or in the exercise of reasonable care should have come aware, that the right of way will not be yielded”? This requires a factual inquiry, and depends on each case. Reasonable care requires drivers to look and see that which is there to be seen. “Every person has a duty to see what would be seen by a person exercising ordinary care.” (Washington Pattern Jury Instruction 12.06). Liability can flow if the driver, even the favored driver, does not look. And if he had looked, he would have seen the other car not yielding the right of way.

Therefore, the favored driver status is not iron-clad and does not establish liability on the non-favored driver if these cars unexpectedly meet in the intersection – via an automobile accident. If one does not keep a proper lookout for his own and others safety immediately prior to the crash, the favored driver will be found at fault. Focusing on objects around you, especially vehicles traveling to your right and left as you approach and enter an intersection, is reasonable.

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Reasonably Safe Roads for Ordinary Travel

Posted Thursday, September 15, 2016 by Ed Harper

Reasonably Safe Roads for Ordinary Travel

Recently, the Washington Supreme Court provided clarification for what constitutes the extent of a municipality’s duty and the effect on legal causation. In Lowman v. Wilbur, 178 Wn.2d 165, 309 P.3d 387 (2013) the court looked at an opportunity to “clarify the interrelationship between questions of duty and legal causation in the context of a municipality’s obligation to design and maintain reasonably safe roadways.” Lowman at 389.

On the night of August 5, 2005, Nathan Lowman and Jennifer Wilbur left a bar together. Wilbur drove and as her car was proceeding down a steep, winding hill, she lost control of her vehicle, left the road and hit a PSE (Puget Sound Energy) utility pole. The utility pole was located 4.47 feet from the edge of the roadway. Lowman was severely injured.

Lowman brought a negligence claim against Wilbur, PSE, Skagit County and others. As to PSE and Skagit County, Lowman presented evidence that the utility pole placement was too close (within a 10 foot clear zone) from the edge of the roadway. However, other evidence showed that Wilbur was speeding at the time of the accident and that she was driving while under the influence of alcohol. Lowman at 389.

“This court in Keller v. Spokane, 178 Wn.2d 170, has held that a ‘municipality owes a duty to all persons, whether negligent or fault free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.’” Keller at 249. Thus, the Wilbur court was going to have to decide if this included the actions of Wilbur and Lowman, even though they may have been under the influence. As mentioned above, the municipality and utility company’s responsibility does extend to all persons using the road in an ordinary manner. As the court in Lowman articulates, “We cannot disregard Keller’s holding that the responsibility to design and maintain reasonable safe roadways extends to both at fault and fault free drivers.” Lowman, at 390.

The question of legal causation is based on how far public policy should extend to protect the innocent and the not so innocent drivers, if their actions are foreseeable. “Legal cause ‘is grounded in policy determinations as to how far the consequences of a defendant’s actions should extend’”. Lowman, at 391. Thus, if Lowman’s injuries were in fact caused by the placement of the utility pole, and/or in any combination thereof, then “they cannot be deemed too remote for purposes of legal causation.” Lowman, at 391.

Thus, the court found no reasonable basis to not extend the potential responsibility, contrary to the trial court’s finding, to the municipality and the utility company for their agreed negligent placement of the pole, in being too close to the roadway.

“Whatever the reasons for a car’s departure from a roadway, as a matter of policy, we reject the notion that a negligently placed utility pole cannot be the legal cause of resulting injury.” Lowman at 391.

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