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Under the Influence of Alcohol or any Drug - Definition

Posted Tuesday, January 17, 2017 by Ed Harper

Under the Influence of Alcohol or any Drug – Definition

WPI 16.04 states the following: “A person is under the influence of alcohol or any drug if, as a result of using alcohol or any drug, the person’s ability to act as a reasonably careful person under the same or similar circumstances is lessened in any appreciable degree.” (WPI 16.04)

This instruction is to be used with WPI 16.03 and is not to be used when a person is driving a motor vehicle at the time of injury or death. In that case WPI 16.04.01, under the influence of alcohol or any drug – driving a motor vehicle, is to be used.

This jury instruction is based on RCW 5.40.060(1). This statute provides the standard for determining whether the person injured or killed was under the influence of intoxicating liquor or any drug and is the same standard set forth in the statute on driving while under the influence.

Pursuant to RCW capital 46.61.502, a person is guilty of driving under the influence of intoxicating liquor or any drug if the person drives a motor vehicle within the state while the person is either under the influence of or affected by the liquor and or drug. These definitions have been adapted for use in the case of a person injured and/or killed while engaged in an activity other than driving. The term “appreciable” means according to Black’s law dictionary “Capable of being perceived or recognized by the senses.”

The case of State v. Lewellyn, 78 Wn.App. 788, 890 P2d 418, points out what items may be utilized to assist in determining one’s ability to act, and whether it is lessened in any appreciable degree. Here, the court heard evidence from a WSP trooper who while giving certain tests, noticed Mr. Lewellyn smelled of alcohol, had been driving erratically, could not keep his balance, stopped while walking in order to steady himself, and could not touch his heel to his toe. This indicates an inability to act as a reasonably careful person under the same or similar circumstances who has been affected to a reasonable degree.

While this instruction WPI 16.04 does not pertain to automobile cases the same standards will apply in determining whether the person was acting as a reasonable person would have acted under the same or similar circumstances. So, first the judge must hear enough evidence to allow the instruction to be given; then, once the instruction is given, while deliberating, the jury is instructed to verify and examine the facts as presented and then make a factual determination of the effects of the intoxicants.

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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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