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Recent Appellate Decisions – July 20 to July 26, 2012

Selected summaries prepared by Commissioner James Verellen (ret.)

Division I  Washington State Court of Appeals

July 23, 2012

Washburn v. City of Federal Way,  No. 66534-1-I

appeal – preservation of error – exceptions to jury instructions – unchallenged jury instructions – denial of summary judgment – denial of motion to dismiss at end of plaintiff’s case CR 50(a) – new trial on damages

Although an appellate court may forgive some minor defects in the preservation of error, the failure to properly and precisely preserve error in the trial court is almost always fatal.

K was R’s boyfriend.  They lived together in R’s house.  R obtained an anti-harassment protection order (ch. 10.14 RCW) that precluded K from attempting to contact R or going within 500 feet of R’s residence.  R gave the protection order to the police to serve on K.  R filled out a form explaining that:  K could be served at R’s residence; he would require an interpreter; K had a history of anger problems; and that he was “likely to react violently when served.”

A police officer served K with the protection order at R’s residence without an interpreter.  He asked if K could read English and then had K read the order.  The officer asked if K understood it.  The officer left.  The officer had not completely read the information in the file.  He saw another person in the residence but did not determine who that was.  He did not require K to leave the residence or wait to see if K left the residence.  K initially remained in the residence and then left.  He returned later that morning and killed R.

R’s estate and her two adult daughters sued the City, including a claim of negligence.  The City filed a summary judgment motion based on the public duty doctrine.  The City argued that the enhanced duties of police when dealing with a ch. 26.50 RCW protection order did not apply here and the officer’s only duty was to serve the ch. 10.14 RCW anti-harassment protection order and file a return of service.   The trial court denied the City’s motion.  The City unsuccessfully sought discretionary review.

The jury returned a verdict in favor of “the plaintiffs” with damages of $1.1 million only in favor of the estate.  The trial court granted the two adult daughters’ motion for a new trial solely on damages.

In March, 2012, Division I issued its opinion affirming the trial court.  The City moved for reconsideration.  On July 23, 2012, the Court issued this opinion again affirming the trial court.  Division I held:

  • The jury instruction that the City had a duty to exercise ordinary care in the serviced and enforcement of protection orders is the law of the case. 
  • The City did not assign error to the instruction or otherwise argue it was improper.
  • The exception to the instruction “for the reasons set forth before” and because the instruction should have included elements and specific questions was inadequate; it was not specific, and “objected to the wording only, and not to its substance.
  • The City’s argument that the case should have been dismissed as a matter of law on summary judgment, on reconsideration and at the close of the plaintiff’s case, does not alter the lack of a proper challenge to the instruction.
  • The only remaining question is whether there is sufficient evidence to support the verdict based on the law of the case that the City did have a duty of ordinary care.  There is sufficient evidence.
  • Division I does not express any opinion whether or not the instruction is legally correct or whether it should be given in any future cases.
  • The appellate court “may not review a denial of a summary judgment motion following a trial if the denial was based upon a determination that material facts were in dispute and had to be resolved by the fact finder.”
  • Whether the City owed R a particularized duty as opposed to a general duty of care could not have been determined at the time of the motion for summary judgment because materials facts were disputed.  It is overly simplistic to argue that only a legal question existed.
  • The foundation for an appeal of the denial of a CR50(a) motion to dismiss at the close of the plaintiff’s case, requires either a renewed motion to dismiss under CR 50(b) or a motion for a new trial asserting insufficient evidence to support the verdict.  For lack of such a foundation, Division I will not review the denial of the CR50(a) motion. 
  • The issue post-trial was not merely a legal issue; it involved the sufficiency of the evidence as well.
  • A new trial on damages only was not an abuse of discretion.  There was evidence of a close relationship between R and her daughters, and the jury indicated in the special verdict form that City’s negligence was a proximate cause of injury and damage to “the plaintiffs” necessarily including the daughters as well as the estate. 

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