The Harper Law Blog

The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.

Intoxication of Person Injured or Killed - Defense

Posted Monday, January 16, 2017 by Ed Harper

Intoxication of Person Injured or Killed – Defense

WPI 16.03 states the following: “It is a defense to an action for damages for personal injuries/wrongful death that the person injured/person killed was then under the influence of alcohol or any drug, that this condition was the proximate cause of the injury/death, and that the person injured/person killed was more than 50% at fault.

“This defense does not apply, however, in an action against the driver of a motor vehicle if you find that:

  1. The driver was then under the influence of alcohol or any drug;
  2. Such condition of the driver was a proximate cause of the injury/death;
  3. The person injured/person killed was also under the influence of alcohol or any drug; and
  4. Such condition of the person injured/person killed was not a proximate cause of the occurrence causing the injury and/or death.” (WPI 16.03)

The idea of this jury instruction is to raise the defense of intoxication on the part of the person injured and/or killed. The reason seems to be obvious, and in the Washington State Legislature, in 1986, under the guise of Tort Reform this rule was instituted. The state legislature was trying to prevent those that were intoxicated from being able to recover for injuries while so intoxicated.

A few short years later, (a case leading to the exception listed in the second part of the instruction), the courts ruled upon a case entitled Geschwind v. Flanagan, 121 Wn.2d 833, 850 P.2d 1061 (1993).

In Geschwind, Mr. Geschwind was severely injured in an auto accident and a claim was raised. He had been a passenger in a truck driven by Timothy Flanagan. Both had become intoxicated prior to the auto accident wherein defendant Flanagan appeared to be solely at fault for causing his vehicle to slam into a telephone pole.

A jury found Mr. Geschwind 70% at fault for his injuries, even though he was asleep when Flanagan went off the road causing his truck to slam into the telephone pole killing himself and injuring Geschwind. An uproar ensued regarding the travesty of justice when Geschwind was prevented from recovering. Thus the law enacted by the legislature allows for the exception to the general rule, if the above mentioned conditions have been satisfied.

So in summary, this defense is available to those who have been sued when the person who claims injury and/or death is intoxicated.

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Commission of a Felony – A Complete Defense to a Personal Injury Claim

Posted Thursday, January 12, 2017 by Ed Harper

Commission of a Felony – A Complete Defense to a Personal Injury Claim

“It is a defense to any action/claim for damages that the person injured/killed was then engaged in the commission of a felony, if the felony was the proximate cause of the injury/death.” (WPI 16.01)

RCW 4.24.420 states that it is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death in the felony was the proximate cause of the injury or death. However, nothing in this section shall affect the right of action. (Under 42 USC section 1983)

In the case, Leavy, Taber, Schultz and Bergdahl v Met Life Ins. Co. 20 Wn. App. 503, 581 P.2d 167 (1978), the court analyzed whether a conviction for a felony is required to assert this defense.

John Crudup up was a contractor in the Walla Walla area of Washington. He was killed after a fight with his second wife Zadie Crudup. He was shot at close range. Prior to his passing, he purchased life insurance with Metropolitan life insurance company. In the underlying criminal case Zadie Crudup was charged with murder. The jury was instructed that manslaughter was a lesser included offense. She was convicted of manslaughter which is the killing of a human being by a person without a design or intent to affect the death of the person killed which act is not excusable or justifiable.

This conviction was upheld on appeal, State v. Crudup, 11 Wn.App. 583, 520 P.2d 479. Zadie Crudup was convicted of manslaughter in the death of John accrued up, in an underlying criminal case.In this case, Leavy v. Metropolitan Life the law firm Leavy et al. was suing to acquire property on behalf of Zadie Crudup. Mrs. Crudup claimed she suffered damages due to the death of her husband. The claim was for the life insurance policy.

In Leavy, the court denied this by utilizing the Slayers’ Statute RCW 11.84, which states no slayer shall acquire any property or benefit as a result of the death of the decedent. (RCW 11.84.020)

As this is a civil case and proof need only be by the preponderance of evidence. (Leavy at 507) A criminal conviction is not a sine qua non (an essential element) in a personal injury application of the Slayers act. See Young v. Seattle, 25 Wn.2d 888, 170 P.2d 222 (1946). So in conclusion, one can successfully defend a claim for damages utilizing the commission of a felony even though a conviction was never obtained.

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Proximate Cause - Superseding Cause

Posted Monday, January 09, 2017 by Ed Harper

Proximate Cause - Superseding Cause

WPI 15.05 – “A superseding cause is a new independent cause that breaks the chain of proximate causation between a defendant’s negligence and an injury/event.

…“It is not necessary that the sequence of events or the particular resultant injury/event is foreseeable. It is only necessary that the resultant injury/event fall within the general field of danger which the defendant should reasonably have anticipated.” (emphasis added)

If you find the defendant, in the exercise of ordinary care, could not reasonably have anticipated the latter independent intervening cause then that cause does not supersede defendant’s original negligence and you may find that the defendant’s negligence was a proximate cause of the injury/event.

It is not necessary that the sequence of events where the particular resultant injury/event be foreseeable. It is only necessary that the resultant injury/event fall within the general field of danger which the defendant should reasonably have anticipated.

Therefore, if the original negligence of the defendant is followed by a foreseeable event there is no superseding and interceding cause.

In Rinks v. Bearrs, 83 Wn.App. 334, 921 P.2d 558 (1996) and Christen v. Lee, 113 Wn. 2d 479, 780 P.2d 1307 (1989) the court dealt with foreseeability as an issue and whether the specific incident(s) was within the general field of danger. If the event was foreseeable, then there was potential liability. In Christen, the court held that a criminal assault could be deemed foreseeable if the drinking establishment that furnished intoxicating liquor had some notice of the possibility of harm. Notification arose from prior actions of the person causing the injury either on the specific occasion or on previous occasions.

Furthermore, the question of whether an intervening act was within the general field of danger is determined by analyzing whether the act was so highly extraordinary as explained by the case MacLeod v. Grant County.

In Christen a patron was shot by another patron following an altercation which arose as the patrons were exiting. The injured patron, Mr. Christen sued the China Doll restaurant for serving intoxicating liquor to an obviously intoxicated person, who was the shooter. The suit was deemed unsuccessful as the court determined that the establishment did not have sufficient notice “of the possibility of harm from prior actions of the person causing the injury.”

In Rinks, however, the court determined that a drinking establishment could be liable as the event was foreseeable that someone such as Mr. Rinks could be injured/killed. More specifically, a minor who purchased alcohol from the establishment would share his large amount of beer with another minor who then would drive while intoxicated, which led to the wrongful death of Mr. Rinks.

“Foreseeability is a question of fact to be decided by the jury, but it may be determined as a matter of law where reasonable minds cannot differ.” Rinks, at page 338. The court explained foreseeability is established where the harm is “reasonably perceived as being within the general field of danger covered by the specific duty owed by the defendant”. Here the seller of alcohol, KUI, should have foreseen that a large amount of beer sold illegally to a minor, would be shared with other minors and that intoxicated minors might attempt to drive, injuring persons such as Mr. Rinks. See Rinks, at 339. The Rinks court held the trial court properly found that the injuries were not unforeseeable as a matter of law. Rinks at 339.

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Proximate Cause - Superceding Cause

Posted Thursday, January 05, 2017 by Ed Harper

Proximate Cause – Superseding Cause

WPI 15.05 – “A superseding cause is a new independent cause that breaks the chain of proximate causation between a defendant’s negligence and an injury/event.

If you find that the defendant was negligent but that the sole proximate cause of the injury/event was a later independent intervening cause that the defendant, in the exercise of ordinary care, could not reasonably have anticipated, then any negligence of the defendant is superseded in such negligence was not a proximate cause of the injury/event. If, however, you find that the defendant was negligent and that the no exercise of ordinary care, the defendant should reasonably have anticipated the later independent intervening cause/force/act, then that cause/force/act does not supersede defendant’s original negligence and you may find that the defendant’s negligence was a proximate cause of the injury/events.

“It is not necessary that the sequence of events or the particular resultant injury/event foreseeable. It is only necessary that the resultant injury/event fall within the general field of danger which the defendant should reasonably have anticipated.”

If however you find that the defendant, in the exercise of ordinary care, could not reasonably have anticipated the latter independent intervening cause then that causes does not supersede defendant’s original negligence and you may find that the defendant’s negligence was a proximate cause of the injury/event.

It is not necessary that the sequence of events where the particular resultant injury/event before seeable. It is only necessary that the resultant injury/event fall within the general field of danger which the defendant should reasonably have anticipated.

If the original negligence of the defendant is followed by a foreseeable event there is no superseding and interceding cause.

If however the independent intervening cause/event is not reasonably foreseeable, it is deemed to supersede the defendants original negligence. The defendant’s original negligence ceases to be the proximate cause. See estate of Keck by and through Cabe versus Blair. 71 Wn.App. 105, 850 6P. 2nd 740 (1993).

Foreseeability is normally a question of fact, as to which the trier of fact may consider the amount and nature of alcohol purchased for example the time of day, the presence of other minors on the president presents or in a vehicle and statements made by purchaser of alcohol. See the case Coker versus Armstrong cork. Or Rinks v. Bearrs, 83 Wn.App. 334, 921 P.2d 558 (1996).

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Negligence of Defendant Concurring with Other Causes

Posted Tuesday, January 03, 2017 by Ed Harper

Negligence of Defendant Concurring with Other Causes

WPI 15.04 states the following: “There may be more than one proximate cause of the same injury/event. If you find that the defendant was negligent in that such negligence was a proximate cause of injury or damage to the plaintiff, it is not a defense that some other force/cause or the act of some other person who is not a party to this lawsuit may also have been a proximate cause.

“However, if you find that the sole proximate cause injury/damage to the plaintiff was some other force/cause or the act of some other person who is not a party to this lawsuit, then your verdict should be for the defendant.”

This jury instruction points out there may be more than one proximate cause for the same injury. The acts of different persons or entities though may concur and/or coincide in producing the same injury. In such a case all would be liable. The question of whether or not the actors or participants are held jointly or separately liable is dependent on the number of factors set forth in RCW 4.22.030 and 4.22.070 both enacted as part of the 1986 Tort Reform Act.

The case Rollins v. King County Metro Transit, Wn.App. 370, 379 (2009) discusses this instruction: “How to instruct on damages will often depend upon the circumstances of the case, which is one reason for the discretion invested in the trial judge. Here, the practical question was how to focus the jury upon the damages caused by the negligence of the defendant (King County). The instructions accomplished that and properly stated the law. The court did not abuse its discretion.” Rollins, at 382.

In Rollins v. King County Metro the facts are as follows:

In May 2005 teenager Carmen Rollins and two of her friends were riding on the King County Metro bus.

After they boarded the bus, approximately 35-50 teenagers boarded the bus and started to intimidate young Carmen Rollins. An incident in the bus arose and horrible things were said to Ms. Rollins. Subsequently, Rollins and her friends began to be assaulted and brutally beaten.

Rollins and her friends attempted to call the police and were rebuffed. They also tried to exit the bus and were prevented from doing so.

At the same time the bus driver, an employee of the King County government, did not even react. The bus driver did nothing to assist Ms. Rollins and her friends and merely drove off after Carmen exited the bus. Finally, the police arrived and called for an ambulance. The jury found King County Metro caused damage in the amount of $138,520 for Ms. Rollins and $127,196 for one of her friends.

In this case, the plaintiff sought damages only for injuries caused by the negligent conduct of King County Metro and not the intentional conduct of the assailants. The plaintiff sued King County Metro alleging at neglected its duties as a common carrier and failing to maintain a safe environment.

“Jury instructions are sufficient if the permit each party to argue it’s theory of case, or not misleading, and properly inform the jury of the applicable long when read as a whole” See Rollins, at 382.

The jury here was instructed the plaintiffs have the burden of proof to show Metro was negligent, that Metro’s negligence was a proximate cause of plaintiffs’ injury, that there may be more than one proximate cause of an injury, and that its verdict should be for Metro if it found the sole proximate cause of injury was a cause other than Metro’s negligence. (This is a quote from 148 Wn.App. 379)

How to instruct on damages will often depend on circumstances of the case here the practical question was how to focus the jury upon the damages caused by the negligence of the defendant. The instructions are accomplished that improperly state of the law. The court did not abuse its discretion Rollins, at 382.

The court further stated in calculating a damage award you must not include any damages that were caused by acts of the unknown assailant and proximately caused by negligence of the defendant any damages caused solely by the unknown assailant proximately caused by the negligence of defendant King County must be segregated from and not be part of any damage award against King County. Rollins.

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