The Harper Law Blog

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Driver's Intoxication and Passenger's Knowledge

Posted Tuesday, November 22, 2016 by Ed Harper

Driver’s Intoxication and Plaintiff’s Passenger’s Knowledge

Washington Pattern Instruction (WPI) 12.01.01 states the following: “If you find that:

1) A driver was intoxicated from the use of alcohol or drugs; and

2) The plaintiff voluntary rode in the vehicle driven by such person after plaintiff knew, or in the exercise of ordinary care should have know, of the driver’s intoxication; and

3) A reasonable person with such knowledge and using ordinary care for his or her own safety would not have ridden in the vehicle; and

4) The driver’s intoxication was a proximate cause of plaintiff’s injury or damages;

Then the plaintiff was contributorily negligent.”

Herein lies the rub. If you get in a car, knowing the driver to have been drinking, the jury will be instructed as to your knowledge of the driver’s inebriation.

The case of Wold v. Gardner, 159 Wash. 665 (1930) and* Miller v Treat, 57 Wn.2d 524 (1960) provides some illumination into the heart of this matter and whether the plaintiff can be considered partially at fault for their own injuries. In *Wold, the plaintiff was a back seat passenger in a car driven by Gardner. A trip was planned leaving Stanwood and venturing across the border into Canada. Along the way, the driver and passengers were drinking. On the way back home to Stanwood, around 1 a.m., while they were just north of Mt. Vernon, the vehicle driven by Gardner struck a disabled vehicle that was partially in the southbound lane. This collision led to second motor vehicle collision (companion case Wolden v. Gardner). Plaintiff Otto Wold was injured. He brought a claim against Gardner for proximately causing his injuries. The appellate court was asked to determine whether Otto Wold’s knowledge of Gardner’s inebriation and to what extent should go to a jury. One factor in this case which should be considered was the long stretch of time between drinking, eating, and driving. A passenger must act like a reasonably prudent person in getting in, and staying in the vehicle.

In Miller, a group of young people were drinking together. Miller was injured when a vehicle driven by Treat made an unsafe lane change. She was riding in a vehicle driven by her friend at speeds upwards of 80 miles an hour immediately before the crash. The defense for Treat stated that Ms. Miller should not have the ability to sue him, as she was contributorily negligent in staying in a vehicle that was driving at such speeds. However, the court held “Whether the driver was under the influence of alcohol and whether the passenger knew or should have known of the driver’s intoxication are still questions for the jury.” Miller at 273. Further, the court stated “under the law of this state, a guest’s knowledge of consumption of alcoholic beverages by his host driver does not in every case impute to the guest knowledge of the host’s intoxication as a matter of law.” Miller at 274.

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Voluntary Intoxication and Consequences

Posted Saturday, November 19, 2016 by Ed Harper

Voluntary intoxication used as an offense sword or defensive shield.Washington Pattern Instruction (WPI) 12.01 states the following: “A person who becomes intoxicated is held to the same standard of care as one who is not so affected.” WPI 12.01. and the instructions in brackets indicate the information of a person’s intoxication may be considered by the jury, together with all the other facts and circumstances, in determining whether that person was negligent.The case of Keck v Blair (cite) provides some answers into whether this jury instruction should be given. The question of one’s voluntary intoxication and the potential issues that arise when one is drinking (or drugging) and then gets injured and one comes to their aid. In this case, John Blair had consumed 3 -4 beers at a local tavern. He then proceeded to a friend’s house, and then headed home. He was driving eastbound on State Route 2. Blair then was negligent and crashed into another vehicle, and then swerved and was pinned against the guardrail. At least two people came to his aid, one being Arthur Keck. Keck was killed when struck by another vehicle while assisting Blair across SR 2 attempting to get Blair to safety.Thus, did Blair’s intoxication and exhibition of sufficient symptoms of intoxication indicate to rescuers they needed to assist him? This interplay, between one’s intoxication and the proximate cause of a collision was discussed at length regarding the rescue doctrine. (state what this is). Here, Arthur Keck came to the rescue of John Blair as a result of John Blair’s negligence not only in crashing his car into another vehicle, but the potential of his intoxicated state after the wreck provided Mr. Keck with sufficient justification to help aid and assist Mr. Blair in extricating him from the scene. “Because Blair appeared intoxicated and was bleeding…felt it too dangerous to leave him alone with his truck…and could not get out of his car or the highway without help, and he was very drunk. Given Blair’s condition, leaving him there on the highway would have exposed him to the threat of additional injury. Blair needed our immediate help, asked for our help, and got our help.” Keck at 108. The rescue doctrine generally excuses the alleged negligence of the rescuer allowing their injury claims to go forward. Additionally, the rescue doctrine helps establish proximate cause by providing that where a defendant has created a situation of peril for another the defendant is held to have caused the peril not only to the victim but also to his rescuer. Keck at 111.
Here, Blair concedes he was negligent when he looked away from the road to retrieve a cassette tape, and, as a result, ran into the car ahead of him. A jury could determine that it was that negligence which caused peril not only to Blair but also to Keck because without it, the danger to Keck would not have existed. Keck at 112.So, should the jury receive an instruction on Blair’s voluntary intoxicated state? The court reasoned further and according to witnesses “He was acting ‘goofy,’ smelled of alcohol, and appeared to have an injured or broken leg. It was reasonable to infer from those facts that, if Keck and Cormican had left Blair at the scene, he could easily have been hit by a car, especially given his apparent condition of being drunk…” Keck at 114.Consequently, the case must be remanded for a jury to determine whether Keck acted reasonably in concluding that Blair was in imminent peril and whether the peril required the immediate action he took. Keck at 115.Why do we care? A jury determines the facts in a case and whether one was acting negligently. To instruct them accurately and completely on what the law is, is crucial to how they interpret the law to the facts. Thus, in this case, they would be allowed to consider whether one’s intoxicated state was a factor in causing this death.

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Degree of Contributory Negligence

Posted Tuesday, November 15, 2016 by Ed Harper

Determining the Degree of Contributory Negligence.

Washington Pattern Instruction (WPI) 11.07 states the following: “If you find contributory negligence, you must determine the degree of negligence, expressed as a percentage, attributable to the person claiming injury or damage. The court will furnish you a special verdict form for this purpose. Your answers to the questions in the special verdict from will furnish the basis by which the court will apportion damages, if any.” WPI 11.07.

The case of Keller v. City of Spokane, 146 Wn.2d 237 (2002) points out the problem with this issue and the interplay with the Defendant’s responsibility to be free from negligent conduct as well. In Keller, Casey Keller was riding his motorcycle up to and into the intersection of Freya and Wellesley in Spokane. Some estimates had him going as fast as 80 mph. Defendant Balinski, drove his car into the intersection after stopping and looking both ways. Keller’s motorcycle struck Balinski’s car at a high rate of speed, causing serious injury to Casey Keller. Keller’s attorney claimed the city was negligent as he alleged the intersection was unsafe for not having this be a four-way stop. Evidence supported these claims.

The City, in short argued among other things, the intersection was safe for ordinary travel. A jury instruction was utilized at the trial court which states “A city has a duty to exercise ordinary care in the signing and maintaining of its public streets to keep them in a condition that is reasonably safe for ordinary travel by persons using them in a proper manner and exercising ordinary care for their own safety.” The instruction was incorrect in stating there was a limited duty – a duty only to those who are not acting in a proper manner, and exercising ordinary care.

“In an action based on fault seeking damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” Keller, at 243-44. Thus, it remains a question of percentage, and not a complete bar to the claim if the plaintiff was also negligent.

Similarly, in Lowman v Wilbur, 178 Wn.2d 165 (2013), quoted from Keller, regarding the essence of this idea - that even potentially negligent plaintiffs, can recovery for their injuries. A duty exists on the part of the defendant and the respective causes of the injury must be ascertained together. “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.” In Lowman, the court pointed out “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.”

We touched on this topic of reasonably safe designed roads on an earlier blog on 9/15/16.


Therefore, the court articulated the present Washington Pattern Instruction – which allows the fault of the defendant to be determined (breach of a duty) separate and apart from any alleged contributory negligence on the part of the plaintiff.

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Negligence of spouse cannot be imputed to the other spouse

Posted Thursday, November 10, 2016 by Ed Harper

Negligence of one spouse cannot be imputed to the other spouse.Washington Pattern Instruction (WPI) 11.04.01 states the following: “Negligence, if any, of one spouse or domestic partner is not imputed or charged to the other spouse or domestic partner.” WPI 11.04.01.In the Revised Code of Washington (RCW) 4.22.020 states in essence that the contributory fault (being partially responsible) of one spouse shall not be imputed to the other spouse. The Plaintiff’s claims should not be diminished and should be allowed to recover their full damages. More specifically, “The contributory fault of one spouse shall not be imputed to the other spouse…to recover damages caused by fault resulting in death or in injury to the person or property, whether separate or community, of the spouse.”The key phrase in this statute is “shall not be imputed”. This disallows any consideration for the imputation of liability onto the fault free plaintiff. Where this comes into play is for personal injury claims such as pain and suffering, emotional distress, loss of enjoyment of life, are all considered to be separate and independent causes of action for the injured person. This has not always been the case as in the past the common law concept was that the wife’s legal identity merged with her husband. “Modernly, however, the law recognizes the separate legal identities of the spouse, and one person’s contributory negligence will not be imputed to another merely on the basis of the marital relationship.” Vasey v. Snohomish County, 44 Wn.App 83, 88 (1986). As the general rule is that the plaintiff’s action for damages should not be reduced by the negligence of third persons. Thus, this is merely an extension of the general rule, and allows a spouse to recover 100% of their independent damages. Therefore, in Vasey, the wife had settled her claim against her husband for a one-car accident wherein he had driven his car off the road. The wife’s allegation at trial was merely against the county for improper sign placement and maintenance issues. The court awarded her damages, and the county was deemed to be 20% at fault for the damages and the husband was 80% at fault. The wife in this case could recover from the county all of her damages, and her claims would not be reduced by her husband’s % of responsibility. In short, all of her separate property claims would be honored and not be reduced due to the negligence of the at-fault, negligent spouse.
Additionally, in the case of Christie v. Maxwell, 40 Wn.App. 40 (1985), even loss of consortium claims are deemed to be separate and independent in nature for the injured spouse. “Under the law in this state, Mrs. Christie is an individual with separate legal rights which arise independent of her identity as a member of the Christie martial community. Yet there would be no injury to her consortium rights without the accompanying physical injury to her spouse and the existence of the marital relationship…While we may feel that it is basically unfair to allow Mrs. Christie 100 percent recovery from Mr. Maxwell where her husband was 62.5 percent contributorily negligent, we are constrained by our interpretation of RCW 4.22.020 and the rules of statutory construction from reducing her damages 62.5 percent.” Christie, at 48.

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What if the other side blames the parent for the child's injury?

Posted Tuesday, November 08, 2016 by Ed Harper

What if the other side blames the parent for the child’s injury?

Washington Pattern Instruction 11.04 states the following: “Negligence, if any, of a parent is not imputed or charged to his or her child.” WPI 11.04.This jury instruction illuminates a problem in this country, allowing a child to recover for his or her damages if their parent was potentially partially at-fault. In the early to mid-1800’s, judges would typically bar a child’s claim due to their injury being due to any allegation of parental irresponsibility and under the legal theory of what is called imputed contributed negligence. This occurred whenever there was potential evidence from which a jury might conclude that a parent was guilty of negligence that proximately contributed to the child’s injury.
However, around the turn of the last century (1900) courts here in the State of Washington have protected claims of children by preventing a defendant from arguing “well, it really was the parents fault for not watching their child” and thus avoiding liability.

A brief review of when this arises may be helpful. Imputed is derived from the Latin term “imputare” which means to charge with. Or in other words, to impute means to lay the responsibility or blame on another. A defendant would have been able to argue the parent’s negligence was the cause of the injury, thus precluding a possible claim of injury for the youngster. If for example, while in a restaurant, a scalding hot coffee was spilled on a child when the child (a toddler for example) pulled the full cup of coffee on themselves, the court would have disallowed the child’s claim from going forward if the defendant raised the parent’s failure to adequately watch and protect their child. The restaurant, even though their server had placed the coffee allegedly too close to the toddler, would get off scot-free if they could prove even 1% of fault lay with the parents.

Additionally, another case points out why this precedent was overturned. In Gregg v. King County, 80 Wash. 196 (1914) a young boy, age 6 went with his older brother to the docks in Juanita on the shore of Lake Washington. He went on the dock, waiting for the ferry with the evening paper from Seattle to arrive. Their mother had sent them on this errand because she was not feeling well. As the boys waited, sitting on the dock, the younger boy’s hand and arm were smashed when the ferry boat arrived and slammed into the support pilings for the dock. King County, the owner of the dock, argued the child’s parents were partially at fault for their failure to supervise the young boy. The court said no. You can’t blame parental supervision, or lack thereof for this injury. It was foreseeable that children would be on the public dock. An example of this foreseeability was aided by the fact that a confectioner store (candy store) was adjacent to the ferry terminal.

The court articulated the true negligence in this case was the poor design of the ferry dock and the responsibility for the boy’s injury fell on the County. “…no act of negligence on the part of the parents of the child, whether of omission or commission, could prevent a recovery by the child, if, under the evidence and other instructions, the jury was of the opinion that the defendant was liable for the injuries sustained by the child; that the rights of the parties must be judged without regard to acts of negligence on the part of the child’s parents.” Gregg, at 203.

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