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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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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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