Martini ex rel. Dussault v. State

• Decision Date: 14 April 2004
• Docket Number: No. 28894-0-II.,28894-0-II.
• Citation: 121 Wash.App. 150,89 P.3d 250
• Parties: Brandon F. MARTINI, through his Guardian ad Litem, William L.E. DUSSAULT, Appellant/Cross-Respondent, v. STATE of Washington, a governmental entity; Lakeside Industries, a joint venture comprised of Larry Darnell, R.R. Lee, Sr., Jeanne M. Lee, Timothy Lee, Henry R. Waggoner and Robert E. Stutgis, and their respective companies and businesses; Respondents, Walsh Brothers Trucking Co., a corporation, Respondent/Cross-Appellant.
• Court: Washington Court of Appeals

89 P.3d 250

121 Wash.App. 150

Brandon F. MARTINI, through his Guardian ad Litem, William L.E. DUSSAULT, Appellant/Cross-Respondent, v. STATE of Washington, a governmental entity; Lakeside Industries, a joint venture comprised of Larry Darnell, R.R. Lee, Sr., Jeanne M. Lee, Timothy Lee, Henry R. Waggoner and Robert E. Stutgis, and their respective companies and businesses; Respondents, Walsh Brothers Trucking Co., a corporation, Respondent/Cross-Appellant.

No. 28894-0-II.

Court of Appeals of Washington, Division 2.

April 14, 2004.

Keith Leon Kessler, Stritmatter Kessler Whelan et al, Garth L. Jones, Stritmatter Kessler Whelan et al, Hoquiam, Counsel for Appellant/Cross-Respondent.

Jerret E. Sale, Bullivant Houser Bailey PC, Francis Stanley Floyd, Floyd & Pflueger PS, Deborah Lynn Carstens, Bullivant Houser Bailey PC, Kim Carter Pflueger, Floyd & Pflueger PS, Seattle, Counsel for Respondents/Cross-Appellants.

MORGAN, J.

Brandon F. Martini sued the State of Washington, Lakeside Industries, and Walsh Brothers Trucking, Inc. for injuries sustained when his car rear-ended Walsh's truck near a construction zone on I-5. The questions on appeal are (1) whether the trial court properly granted summary judgment to Walsh; (2) whether, given that the State was named as a defendant, the trial court properly denied Martini's challenge for cause to a juror employed by the State; (3) whether the trial court properly admitted evidence showing an absence of other accidents on the same night; and (4) whether the trial court properly instructed on the duty of a following driver. Answering no to the first and second questions, we reverse and remand.

In early August 1997, the Washington State Department of Transportation (WSDOT) and a private contractor, Lakeside Industries, were repaving the two northbound lanes of I-5, a few miles south of Olympia. At the times material here, the work required that the two lanes merge into one. The normal speed limit for cars was 70 miles per hour.

At least four signs were posted in an effort to warn northbound drivers.¹ The first, southernmost sign was at milepost 87.55. It stated: (1) "WORK ZONE NEXT 8 MILES," and (2) "Give `em a BRAKE."² The second sign, north of the first, was at milepost 88.78. It stated: "FOR INFORMATION ABOUT THIS PROJECT" and displayed a phone number.³ The third sign, north of the second, was at milepost 90.18. Portable and electronic, it alternately flashed: "MAYTOWN EXIT CLOSED, USE Exit 99."⁴ The fourth, northernmost sign was at milepost 91.64. Also portable and electronic, it alternately flashed: "(1) "PAVING IN PROGRESS, (2) WORKERS ON ROADWAY."⁵ It is disputed whether traffic consistently backed up past these signs.

Around midnight on August 8-9, 1997, Thomas Stewart was driving a long-haul truck owned by Walsh. He was northbound in the right lane of I-5 traveling at about 60 miles per hour. His truck was equipped with brake lights, as well as with lights that framed the back of his trailer. He knew about the paving project because he had recently driven through the area. As Stewart approached the repaving project, he moved into the left lane. Thirty or forty vehicles had backed up, so he began downshifting and braking. He had "slowed down to where [he] was actually going maybe 3 miles an hour"—"just barely rolling, not enough to where [his] indicator would hardly even indicate"⁶—when he felt an "explosion"⁷ at the back of the truck. After stopping and activating his four-way (hazard) flashers, he got out and ran to the back of his truck, where he found a Volkswagen Corrado wedged underneath. The driver was injured but still alive.

Martini was driving the Volkswagen. He was headed home to Olympia after visiting friends in Rochester. He entered northbound I-5 at milepost 88.5, north of the first sign but south of the second. He hit the truck about 164 feet south of the fourth (northernmost) sign. He sustained brain damage, so he lacks memory of that night.

On May 10, 1999, Martini sued the State, Lakeside, and Walsh.⁸ He alleged that the State and Lakeside were liable because they had negligently warned northbound drivers. He alleged that Walsh was liable because Stewart, its employee, had negligently operated his truck "at an extremely slow speed in the darkness without engaging the truck's four-way emergency flashers, and without otherwise warning the Plaintiff and other motorists of the hazard of the truck's slow movement."⁹

Before trial, Walsh moved for summary judgment. Martini responded that Stewart had breached his common law duty of ordinary care by not activating his four-way flashers while slowing to about three miles per hour in the fast lane of I-5. The trial court granted the motion on the ground that Stewart did not owe Martini a legal duty.

Before trial, Martini moved in limine to exclude evidence designed to show the absence of other accidents near the repaving project. The trial court denied the motion with respect to the night of August 8-9, 1997, but granted it with respect to all other times.

Before trial, Martini moved to exclude state employees from the jury. He relied on RCW 4.44.180(2),¹⁰ which implies bias on the part of anyone "in the employment for wages[] of the adverse party." The trial court denied the motion.

A first trial ended with a hung jury. A second trial was held in April 2002. During jury selection, Martini challenged for cause a state employee named Johnston.¹¹ Relying on RCW 4.44.180(2), he claimed she was impliedly biased because she was employed by the State and the State was an adverse party. The trial court denied the challenge, Martini used his peremptory challenges on other prospective jurors, and Johnston was seated as a juror in the case.

During the evidential phase of the second trial, the State and Lakeside introduced testimony from one of Lakeside's on-site supervisors that there had been no other accidents on the night of August 8-9, 1997. Defense counsel asked, "[W]ere there any other accidents on the evening of August 9, 1997, other than Mr. Martini?," and the supervisor answered, "No."¹²

At the end of evidence, the State and Lakeside sought a jury instruction on the duty of a following driver. After overruling Martini's objection, the trial court gave the requested instruction.

Martini appeals from a judgment based in part on the summary judgment for Walsh and in part on the verdict of the second jury. As to Walsh, Martini claims that the trial court erred by granting summary judgment. As to the State and Lakeside, Martini claims that the trial court erred by denying his challenge of Johnston for cause; by admitting evidence that showed a lack of other accidents; and by instructing on the duty of a following driver. We discuss Walsh first.

I.

Martini contends that the trial court erred by granting Walsh's motion for summary judgment. Given that we are reviewing a summary judgment, we take the record in the light most favorable to Martini.¹³ The record includes testimony from Stewart and a truck-driving instructor named Ward Ohl, as well as excerpts from the Washington State Commercial Driver's Guide.¹⁴

As noted above, Stewart testified that he slowed as he approached the construction project. He alternately braked and downshifted, staying about 25-30 feet behind the car in front of him. He did not put on his four-way flashers, believing they were only for emergencies. He had slowed to about three miles per hour when he was hit from the rear. He "immediately put on [his] 4-way blinkers, checked [his] mirrors again to make sure there was no traffic around, and then got out of the truck and ran to the back to see what had happened."¹⁵

Ohl testified that he teaches defensive driving for commercial trucking companies. He opined that

any time a truck slows down, and especially to a crawl on a freeway or in a traffic lane, they need to communicate to the traffic behind them, around them, with their four-way flashers that traffic is slow or stopped or there is an emergency. They call them emergency or hazard lights.

. . . .

... In my opinion any time other than normal travel, city travel—any time a truck is down below 10 to 15 miles an hour below the speed limit, they need to have their four-way flashers or their hazard lights on. I'm sure everyone has seen trucks climbing hills very slow with their four-ways on. That's to communicate to people behind them that they are traveling at a very low rate of speed.[¹⁶]

Applying his opinion here, he concluded that Stewart "needed to have his four-way flashers on as he was slowing down."¹⁷

The Washington State Commercial Driver's Guide advised truckers to use their four-way flashers when driving "very slow or are stopped."¹⁸ It stated in a section titled "COMMUNICATING:"

Slowing Down. Warn drivers behind you when you see you'll need to slow down. A few light taps on the brake pedal— enough to flash the brake lights—should warn following drivers. Use the 4-way emergency flashers for times when you are driving very slow or are stopped. Warn other drivers in any of the following situations:

•Trouble ahead. The size of your vehicle may make it hard for drivers behind you to see hazards ahead. If you see a hazard that will require slowing down, warn the drivers behind by flashing your brake lights.

. . . .

•Driving Slowly. Drivers often do not realize how fast they are catching up to a slow vehicle until they are very close. If you must drive slowly, alert following drivers by turning on your emergency flashers if it is legal. (Laws regarding the use of flashers differ from one state to another. Check the laws of the states where you will drive.)[¹⁹]

The Guide further stated in a section titled "SEEING HAZARDS:"

Hazardous Roads.

Slow down and be very careful if you see any of the following road hazards:

•Work Zones. When people are working on the road it is a hazard. There may be narrower lanes, sharp turns, or uneven surfaces. Other drivers are often

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