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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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The Duty of One Confronted by an Emergency

Posted Tuesday, November 29, 2016 by Ed Harper

Washington Pattern Instruction (WPI) 12.02 states the following: “A person who is suddenly confronted by an emergency through no negligence of his or her own and who is compelled to decide instantly how to avoid injury and who makes such a choice as a reasonably careful person placed in such a position might make, is not negligent even though it is not the wisest choice.”

The instruction requires several factors: a sudden emergency; the emergency was not caused by their own actions, confronted with a choice; and does not have time to think through the decision.

The case of Tuttle v. Allstate, 134 Wn.App.120 (2006 ) the appellate court overturned the trial court’s use of this jury instruction.

In Tuttle, Plaintiff Denise Tuttle sued Brock Gallien for personal injuries. One evening in 2003, Ms. Tuttle was driving southbound on Interstate 5 when her car hit something on the road, causing it to flip over. Several minutes later, Brock Gallien, also traveling southbound on I-5, ran into Tuttle’s vehicle.. Tuttle was seriously injured in the accident. At trial Gallien testified he was driving south in the center lane on I-5…he saw Tuttle’s vehicle “just a fraction of a second before the collision…occurred,” but later he contradicted himself by saying that he did not see the Tuttle’s vehicle before striking it. Prior to striking the Tuttle vehicle, Gallien had noticed people on the right side of the road with flashlights and determined to move to the left hand lane. Tuttle at 125.

Tuttle’s counsel objected to the introduction of this jury instruction that it did not apply and it would confuse the jury. The appellate court agreed that the undisputed evidence was that Gallien had no time to react at all, much less make a choice between alternative courses of action. Tuttle at 131.

The emergency doctrine, to apply, the person has been placed in a position of peril and must make an instinctive choice between courses of action after the peril has arisen…The doctrine excuses an unfortunate human choice of action that would be subject to criticism as negligent were it not that the party was suddenly faced with a situation which gave him no time to reflect upon which choice was best. Tuttle id.

Here, as a driver, Gallien noticed something was amiss up ahead. He made a conscious decision to change lanes. He turned his signal on, he looked over his shoulder, he wanted to allow another vehicle to move over – this thought process takes time. However, when confronted with Tuttle’s vehicle directly in his path, he had no time. He made no choice. This car merely struck Ms. Tuttle’s car. Thus, the court reasoned this jury instruction should not have been given and it was error to do so.

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