Alston v. Blythe

Decision Date19 September 1997
Docket NumberNo. 20120-8-II,20120-8-II
Citation943 P.2d 692,88 Wn.App. 26
CourtWashington Court of Appeals
PartiesGloray ALSTON, Appellant, v. Michael Joseph BLYTHE and Polly Blythe, husband and wife; Steven L. McVay and Carol McVay, husband and wife; Ed Kaelin and "Jane Doe" Kaelin, d/b/a Kaelin Trucking, Respondents.

James Francois Leggett, Leggett & KramKeating, Tacoma, for Appellant.

Bertil F. Johnson, Tacoma, Andrew George Cooley, Bucklin & McCormack, Seattle, for Respondents.

MORGAN, Judge.

The dispositive issue in this auto-pedestrian case is whether the trial court erred by giving an assumption-of-risk instruction. Holding that it did, we reverse and remand for new trial.

Portland Avenue is an arterial street in Tacoma. Near its intersection with East 29th Street, it has two northbound lanes, two southbound lanes, and a left-turn lane in the center.

On September 20, 1991, Alston started across Portland Avenue on foot. 1 She was walking from east to west, at or near East 29th Street. It is agreed she was not in a marked crosswalk, but the parties contest whether she was in an unmarked crosswalk.

Steven McVay was driving south on Portland Avenue in the inside (easterly) southbound lane. He was operating a tractor with a flatbed trailer. Seeing Alston as she crossed the northbound lanes, he stopped so she could continue across the southbound lanes. Alston alleges he waved her across the southbound lanes, but he denies the allegation. In any event, Alston crossed in front of his truck and stepped into the outside (westerly) southbound lane. At that moment, Michael Blythe was driving his vehicle south in that lane, and his vehicle struck and injured Alston.

Alston was receiving public assistance at the time of the accident. The Department of Social and Health Services (DSHS) paid a portion of her medical fees, on condition that her physician not attempt to collect the remainder of his fees from her. 2 DSHS did not prohibit the physician from collecting the remainder of his fees out of the proceeds of this lawsuit, if any.3

Alston sued Blythe, McVay, and McVay's employer, Kaelin Trucking, alleging negligence. At the ensuing jury trial, the trial court ruled, over Alston's objection, that the defendants could impeach Alston's physician by showing that he would receive the remainder of his fees only if Alston prevailed in the action. At the close of the evidence, Alston objected to many of the trial court's instructions, but not to its instruction on contributory negligence. Ultimately, the jury decided that neither McVay nor Blythe had been negligent, and Alston filed this appeal.

Initially, we discuss whether the trial court erred in giving an assumption-of-risk instruction. Then, even though that issue is dispositive, we discuss several additional issues likely to recur on retrial. 4

I

Alston contends the trial court erred by giving Instruction 13, which stated:

It is a defense to an action for personal injury that the plaintiff impliedly assumed a specific risk of harm.

A person impliedly assumes the risk of harm, if that person knows of a specific risk associated with a course of conduct, understands its nature, and voluntarily chooses to accept the risk by engaging in that conduct. 5

Alston objected to this instruction on the ground that it was not supported by the evidence, and on the further ground that it could be misinterpreted to mean that assumption of risk was a complete bar to recovery. She reiterates the same objections on appeal.

Two of the elements of negligence are duty and breach. 6 Thus, a plaintiff claiming negligence must show that the defendant owed a duty of reasonable care to the plaintiff, and that the defendant failed to exercise such care. 7

Two of the elements of contributory negligence are duty and breach. 8 Thus, a defendant claiming contributory negligence must show that the plaintiff owed a duty to exercise reasonable care for the plaintiff's own safety, and that the plaintiff failed to exercise such care. 9

The doctrine of assumption of risk has four facets. They are (1) express assumption of risk; (2) implied primary assumption of risk; (3) implied reasonable assumption of risk; and (4) implied unreasonable assumption of risk. 10

The third and fourth facets, implied reasonable and implied unreasonable assumption of risk, are nothing more than alternative names for contributory negligence. As the Supreme Court has said, they "involve the plaintiff's voluntary choice to encounter a risk created by the defendant's negligence," and they "retain no independent significance from contributory negligence after the adoption of comparative negligence." 11 In sum, they bear on the plaintiff's duty to exercise ordinary care for his or her own safety.

The first and second facets, express assumption of risk and implied primary assumption of risk, bear not on the plaintiff's duty to exercise ordinary care for his or her own safety, but rather on the defendant's duty to exercise ordinary care for the safety of others. Both facets raise the same question: Did the plaintiff consent, before the accident or injury, to the negation of a duty that the defendant would otherwise have owed to the plaintiff? 12 If the plaintiff did so consent, "the defendant does not have the duty, there can be no breach and hence no negligence." 13 Thus, when either facet applies, it bars any recovery based on the duty that was negated. 14

Although the first and second facets involve the same idea--the plaintiff's consent to negate a duty the defendant would otherwise have owed to the plaintiff--they differ with respect to the way in which the plaintiff manifests consent. 15 With express assumption of risk, the plaintiff states in so many words that he or she consents to relieve the defendant of a duty the defendant would otherwise have. With implied primary assumption of risk, the plaintiff engages in other kinds of conduct, from which consent is then implied. 16 Consent is an issue of fact for the jury, except when the evidence is such that reasonable minds could not differ. 17

Because the plaintiff's consent lies at the heart of both express and implied primary assumption of risk, "[i]t is important to carefully define the scope " of that consent. 18 This is done by identifying the duties the defendant would have had in the absence of the doctrine of assumption of risk, and then segregating those duties into (a) those (if any) which the plaintiff consented to negate, and (b) those (if any) which the defendant retained. 19 Like consent itself, the scope of consent is an issue of fact for the jury, unless the evidence is such that reasonable minds could not differ. 20

These principles mean, among other things, that a trial court may instruct on both contributory negligence and assumption of risk if the evidence produced at trial is sufficient to support two distinct findings: (a) that the plaintiff consented to relieve the defendant of one or more duties that the defendant would otherwise have owed to the plaintiff, and (b) that the plaintiff failed to exercise ordinary care for his or her own safety. 21 In most situations, however, the evidence will support only the second of these findings, and "an instruction on contributory negligence is all that is necessary or appropriate." 22

The record in this case contains no evidence that Alston expressly or impliedly consented to relieve either McVay or Blythe of the duty of ordinary care that he owed to her as a matter of law. She merely tried to cross the street in a way that may or may not have involved contributory negligence, depending on whose testimony the jury chooses to believe. The evidence supported an instruction on contributory negligence, but not an instruction on assumption of risk, and Instruction 13 was erroneous.

The defendants argue that Instruction 13 was harmless, but we do not agree. Instruction 13 stated that the defendants had a "defense" (and, by implication, Alston could not recover) if Alston knew of a specific risk associated with crossing the street, understood that risk, and voluntarily chose to cross anyway. Given that the evidence showed nothing more than arguable contributory negligence, this contravened Washington's comparative negligence scheme, and it may well have been the reason the jury rendered a defense verdict. There is a reasonable likelihood that Instruction 13 skewed the verdict, and a new trial is required.23

II

Alston next contends that the trial court erred by refusing to give an instruction embodying the so-called volunteer doctrine. She proposed three alternative instructions, the simplest of which stated: "A person, having no duty to act, who nevertheless cho[o]ses to act, must do so without negligence." 24

A party is entitled to jury instructions that allow him or her to argue his or her theory of the case, provided of course that he or she has produced evidence sufficient to support that theory of the case. 25 Alston's theory against McVay and Kaelin Trucking was that McVay had undertaken a duty by waving her across the street, that he therefore was obligated to exercise reasonable care, and that he failed to do so when he did not warn her of Blythe's presence.

In general, a person "who undertakes, albeit gratuitously, to render aid to or warn a person in danger is required by our law to exercise reasonable care in his efforts, however commendable." 26 If such a person "fails to exercise such care and consequently increases the risk of harm to those he is trying to assist, he is liable for any physical damages he causes." 27

Panitz v. Orenge 28 applies these principles in a context similar to this one. There, the plaintiff was a passenger on a bus. The bus stopped at the right side of a two-lane, one-way road so the plaintiff could disembark. Once off the bus, the plaintiff crossed back in front of it, stepped into the road, and was struck by a passing car. At trial, she...

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