Adkins v. Aluminum Co. of America

• Decision Date: 03 March 1988
• Docket Number: No. 53309-1,53309-1
• Citation: 750 P.2d 1257,110 Wn.2d 128
• Court: Washington Supreme Court
• Parties: Jerry ADKINS and Teresa Adkins, husband and wife, Appellants, v. ALUMINUM COMPANY OF AMERICA, a foreign corporation, Respondent.

Page 128

110 Wn.2d 128

750 P.2d 1257

Jerry ADKINS and Teresa Adkins, husband and wife, Appellants, v. ALUMINUM COMPANY OF AMERICA, a foreign corporation, Respondent.

No. 53309-1.

Supreme Court of Washington En Banc.

March 3, 1988.

Landerholm, Memovich, Lansverk, Whitesides, Wilkinson, Klossner & Perry, Inc., P.S., Duane Lansverk, Vancouver, for appellants

Bullivant, Houser, Bailey, Hanna, Pendergrass, Hoffman, O'Connell & Goyak, R. Daniel Lindahl, Portland, for respondent.

ANDERSEN, Justice.

FACTS OF CASE

This is a personal injury suit brought by Jerry Adkins ¹ against the Aluminum Company of America (ALCOA) for injuries he sustained while working as a roofer on a building owned by ALCOA. Following the liability phase of a bifurcated first trial, the jury returned a verdict finding ALCOA 80 percent negligent and Mr. Adkins 20 percent negligent. The trial court, however, granted ALCOA's motion for a mistrial made after the liability verdict was returned; ALCOA's motion was based upon the jury's use of a law dictionary during deliberations. Following retrial, the second jury returned a verdict in favor of ALCOA on the liability issue. Judgment was entered accordingly. Mr. Adkins appealed, raising a number of issues. We accepted In 1980, ALCOA contracted with Wagner Roofing to do maintenance work on some of its buildings in Vancouver, Washington. Mr. Adkins, an employee of Wagner Roofing, worked on one of the roofs. On August 7, 1980, Mr. Adkins was on the roof to finish caulking the flashing on the inside of a precast concrete parapet around the roof. He placed several tubes of caulk under the weather cap of an exhaust vent, across the opening, in order to warm the caulk. One tube fell into the vent. He removed the weather cap from the vent, simply by lifting it off, and looked inside. He could see the tube lying in an elbow of the duct, about 2 feet down. He reached down into the duct to retrieve the tube of caulk. He was injured when his hand was caught in a moving fan which the tube of caulk had missed.

                the Court of Appeals certification of the case to this court. 2  We reverse on the basis of improper jury argument and remand for a new trial
                

Mr. Adkins brought this action against ALCOA. The parties and the court agreed to bifurcate the trial, with the same jury hearing both the liability and damages phases. At the conclusion of the 6-day liability phase, the jury began deliberations. During the evening deliberations, one juror asked the bailiff for a dictionary. Unfortunately, the bailiff supplied the jury with a 1933 Black's Law Dictionary. Later, the bailiff told the judge what she had done. After the jurors returned their verdict finding ALCOA 80 percent negligent and Adkins 20 percent negligent, the judge questioned the jurors about their use of the dictionary. The jurors stated that they had looked up the definitions of the terms "negligence" and "proximate cause".

ALCOA moved for a mistrial, which the court granted on the basis that it could not reasonably say that the jury was not influenced by the dictionary. Adkins did not then appeal the court's oral ruling. In a separate action, he sued Clark County and the State of Washington for damages claimed to be caused by the mistrial. Ultimately, this court held that the bailiff's conduct was protected by judicial Upon retrial of the present action, Adkins' theories of ALCOA's liability were that ALCOA was negligent as owner of the building, and that ALCOA violated a duty to provide him with a safe workplace. Among other things, he sought to establish that ALCOA was negligent per se for not complying with certain regulations, promulgated under the Washington Industrial Safety and Health Act of 1973 (WISHA), ⁴ pertaining to machine guarding and warning signs. The court ruled that as a matter of law the regulations did not apply and declined to allow testimony about these regulations or about similar Occupational Safety and Health Act (OSHA) ⁵ regulations. The trial court did, however, allow testimony on the advisory American National Standards Institute (ANSI) ⁶ codes relating to machine guarding and warning signs.

immunity, and affirmed the trial court's dismissal of that action on summary judgment. ³

During the retrial, the trial court granted ALCOA's request for a jury view of the vent. Adkins objected to the view, but withdrew his objection before the jury viewed the premises.

On the fifth day of the retrial, a Tuesday, the trial judge told counsel that on the previous Saturday he had attended a dinner party given by ALCOA's political action committee, WAPAC. The judge believed that the dinner party was to be given by ALCOA's workers' union, but learned that evening that WAPAC instead is an organization of ALCOA management and stockholders. Two of ALCOA's witnesses in this case also attended the party. As the judge advised counsel, he did not talk to either witness other than to say "hello" and that he was not going to be able to talk to them During final argument, ALCOA's counsel made statements which Adkins objected to as asking the jurors to place themselves in ALCOA's position. Following the objection, which was made out of the jury's presence, counsel requested the court to instruct the jury that it was an improper argument and that the jury should not consider it. The court overruled the objection and denied the request. Subsequently, Adkins made a post trial motion for a new trial based upon the allegedly improper argument.

                further.   He explained that he only stayed because he thought leaving would be discourteous.   After explaining the matter, the judge invited the parties to make any motions they desired to make based on the incident.   Adkins' counsel advised that Adkins had instructed him that he did not want to move for a mistrial.   No motions were made
                

The trial court submitted to the jury the question of Adkins' status as an invitee or a trespasser at the time he put his hand into the vent. Adkins excepted to jury instructions respecting his status, and argued that the court should have ruled as a matter of law that he was not a trespasser.

The jury returned a verdict in favor of ALCOA on liability. Adkins appeals from the judgment entered on the jury verdict raising several issues. ALCOA also raises an issue pursuant to RAP 2.4(a).

Six principal issues are presented for our review.

ISSUES

ISSUE ONE. Is the trial court's oral ruling granting the mistrial (due to the first jury's use of the law dictionary) reviewable upon this appeal from the judgment entered on the second jury's verdict?

ISSUE TWO. Did the trial court err by granting ALCOA's motion for a mistrial based upon the jury's use of a law dictionary during deliberations?

ISSUE THREE. During final argument, did ALCOA's counsel improperly urge the jurors to place themselves in ALCOA's position and to consider what they would then want and, if so, is reversal required?

ISSUE FOUR. Did the trial court err when it ruled that certain machine guarding and warning sign regulations do not apply to this case?

ISSUE FIVE. Did the trial court properly submit to the jury the question of Mr. Adkins' status as an invitee or trespasser at the time he put his hand into the vent where the fan was?

ISSUE SIX. (ALCOA's assignment of error.) Did the trial court err by ruling that ALCOA owed Mr. Adkins a nondelegable general duty to provide a safe workplace pursuant to RCW 49.17.060?

DECISION

ISSUE ONE.

CONCLUSION. Pursuant to RAP 2.4(b), the trial court's ruling on the motion for a mistrial is reviewable at this time.

RAP 2.4(b) provides:

The appellate court will review a trial court order or ruling not designated in the notice, including an appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review.

As noted in the comment at the time RAP 2.4(b) was adopted in 1976, a trap for the unwary existed under prior rules in that a failure to appeal an appealable order could prevent its review upon appeal from a final judgment. ⁷ It is not always clear, however, what is an appealable order. RAP 2.4(b) solved the problem by including prior appealable orders within the scope of review. ⁸

The requirements of RAP 2.4(b) are satisfied here. The second trial would not have occurred absent the trial court's decision granting the motion for a mistrial; thus the decision prejudicially affected the final decision which was designated in the notice of appeal. Obviously the trial ALCOA maintains, however, that the trial court's action falls within the scope of RAP 2.2(a)(9), providing that a grant or denial of a motion for a new trial is appealable as a matter of right, and RAP 5.2(e), providing that a notice of appeal of an order on a post trial motion for a new trial must be filed within 30 days after entry of the order. ALCOA maintains that Adkins failed to timely file an appeal from the decision granting the mistrial. This argument is not persuasive.

court's action granting the mistrial occurred before the Court of Appeals accepted review.

First, RAP 2.2(a)(9) and RAP 5.2(e) expressly apply to motions for a new trial. The trial court's decision here at issue was a decision on a motion for a mistrial following only the liability phase of a bifurcated trial. Second, under RAP 2.2(a)(9) a denial of a motion for a new trial is appealable as a matter of right. To apply the rule by analogy to motions for mistrial would result in the untenable premise that a denial of a motion for mistrial would be appealable as a matter of right. We conclude that neither RAP 2.2(a)(9) nor RAP 5.2(e) applies here, even by analogy, to override the express provision of RAP 2.4(b). Were we to do otherwise, our decision would be inconsistent with the purpose of RAP 2.4(b) to avoid the problem of precluding review of an order which is not readily identifiable...