Baltazar v. Paradise, 73639-6-I

• Decision Date: 14 December 2015
• Docket Number: No. 73639-6-I,73639-6-I
• Court: Washington Court of Appeals
• Parties: DEBBIE K. BALTAZAR, Appellant, v. DONALD PARADISE and "JANE DOE" PARADISE, husband and wife, Respondents.

DEBBIE K. BALTAZAR, Appellant, v. DONALD PARADISE and "JANE DOE" PARADISE, husband and wife, Respondents.

No. 73639-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

December 14, 2015

UNPUBLISHED OPINION

LEACH, J. — Debbie Baltazar appeals the trial court's judgment entered on a jury verdict in favor of defendant Dr. Donald Paradise. Baltazar challenges the trial court's jury instructions on the emergency doctrine, the act of God defense, and contributory negligence, claiming that the evidence does not support giving any of these instructions. Because we agree, we reverse and remand for a new trial.

FACTS

On August 23, 2008, Dr. Donald Paradise operated a boat occupied by his employees during a staff outing on Puget Sound. Baltazar rode in the front of the boat. During mild weather conditions, the boat hit a wave or several waves between two and three feet high. On impact, Baltazar and others in the bow of the boat flew into the air and hit the boat several times. Baltazar suffered injuries as a result. Baltazar sued Paradise, alleging that his negligent operation of the boat caused her injuries.

At trial, Paradise requested instructions on several affirmative defenses, including the emergency doctrine, the act of God defense, and Baltazar's contributory negligence. Over Baltazar's objection, the trial court gave the jury each instruction.

After the jury found for Paradise, the trial court entered judgment. Baltazar appeals.

STANDARD OF REVIEW

We review de novo a challenge to a jury instruction based on a matter of law and review for abuse of discretion a challenge based on a matter of fact.¹ A court sufficiently instructs a jury when its instructions allow each party to argue its theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.² We review a trial court's decision to give an emergency instruction for abuse of discretion because that decision involves determining if the record contains the kind of facts to which the doctrine applies.³

ANALYSIS

Before we consider Baltazar's jury instruction challenges, we address Paradise's contention that Baltazar's failure to assign error to the jury verdict prevents her from challenging the trial court's jury instructions. Paradise claims that because of this omission, Baltazar has accepted the jury's factual determination, reflected by its verdict, that Paradise was not negligent. We disagree.

Paradise cites Fowles v. Sweeney⁴ and RAP 10.3(g) to support his argument. In Fowles, the Supreme Court considered an appeal from a bench trial and treated as established facts the trial court findings of fact that the appellant had not identified by number and description as required by former RAP 43.⁵ Because this rule only applied to cases tried to the court without a jury, it provides no authority for Paradise's position.

Paradise's reliance on RAP 10.3(g) fails to account for RAP 10.3(a)(4), which provides,

Assignments of Error. A separate concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error.

RAP 10.3(g) must be read in the context of the general rule for assignments of error set forth in RAP 10.3(a)(4). RAP 10.3(a)(4) requires a separate assignmentonly for errors "made by the trial court," not an error made by a jury. RAP 10.3(g)'s provisions relate to trial court findings of fact made after a bench trial. This construction of RAP 10.3(g) is consistent with the earlier appellate procedural rules and Fowles v. Sweeney.

Additionally, RAP 10.3(g) allows review of an unchallenged finding of fact when a brief clearly discloses the associated issue in the statement of issues. Paradise makes no claim that Baltazar's brief inadequately discloses any issue. Baltazar's opening brief makes clear the nature and extent of her appeal: she appeals the trial court's jury instructions in a personal injury trial that she asserts resulted in an erroneous defense jury verdict. She argued all issues in her briefing, and she assigned error to the particular jury instructions she appealed.

Also, this court liberally construes the appellate rules to promote justice and facilitate the decision of cases on the merits.⁶ Thus, we turn to the merits of the case.

Baltazar first asserts that the trial court abused its discretion by giving an "emergency doctrine" instruction because Paradise did not produce sufficient evidence for the doctrine to apply. Paradise disagrees, claiming he providedevidence of a sudden emergency with evidence that upon seeing a three-foot wave, he chose to decelerate and warn his passengers.

The trial court gave the following emergency doctrine instruction:

INSTRUCTION NO. 16

A person who is suddenly confronted by an emergency through no negligence of his or her own and who is compelled to decide instantly how to avoid injury and who makes such a choice as a reasonably careful person placed in such a position might make, is not negligent even though it is not the wisest choice.

A court reviews jury instructions as a whole.⁷ The sudden emergency doctrine recognizes that a person placed in a position of danger does not always act as prudently as one might with time for deliberation.⁸ This doctrine applies only in limited circumstances and requires "'the availability of and a possible choice between courses of action after the peril arises. Otherwise, the doctrine blends into or merges with the theory of unavoidable accident.'"⁹ The doctrine protects from liability a defendant suddenly confronted by an emergency through no fault of his own who chooses an otherwise negligent course of action to avoid the emergency.¹⁰

A court should give an emergency doctrine instruction only when the party invoking the doctrine presents the jury with evidence that the emergency arose through no fault of that party and that the party had to choose quickly between two courses of action.¹¹ Evidence of unavoidability alone cannot support an emergency instruction.¹²

Baltazar contends that the doctrine does not apply here because Paradise was negligent in his actions leading up to the perilous situation, not in his reaction to it. She asserts that Paradise created the perilous situation by failing to maintain a proper lookout and thus failing to see the oncoming wave and properly navigate the boat. She also claims that the instantaneous nature of the event left Paradise without time to choose between two courses of action.

Paradise admitted the instantaneous nature of the incident:

[Paradise's counsel]: How have you described it before as far as how much time existed? What words would you use to describe how fast this happened?

Dr. Paradise: Well, I think that I remember that my final thought about it is it was instantaneous. That's about as much—it wasn't one thousand one, one thousand two, one thousand three. I'm saying this and it's instantaneous and I'm on the wave."

Because the claimed emergency provided Paradise with no alternative courses of action, Baltazar urges this court to follow Zook v. Baier¹³ and Brown v. Spokane County Fire Protection District No. 1,¹⁴ where courts dealt with similar facts. In Zook, the defendant struck the plaintiff as she walked through the snow to a gas station on a dark morning.¹⁵ The defendant testified that he was traveling at 20 miles per hour, saw the plaintiff when she was 35 feet from him, applied his brakes, and tried to turn away but slid into her.¹⁶ This court held that the emergency doctrine did not apply for two reasons—one relevant to our case—the driver had no available alternatives, "only an instant of time on a slippery road for a single instinctive reaction."¹⁷ And in Brown, a driver suddenly confronted with a fire engine reacted instinctively by swerving to strike the fire engine a glancing blow rather than hitting it head on.¹⁸ The Supreme Court, quoting Zook, held that the emergency doctrine did not apply under the evidence presented because the driver had no alternative to striking the fire engine.¹⁹ Similar to the drivers in those cases who only had an instant to react in a periloussituation, Paradise also had only an instant to instinctively react to the wave. He had no alternative to striking it.

Paradise contends that the trial court correctly applied the doctrine because the parties presented conflicting evidence showing the underlying event arose either from negligence or unavoidable circumstances. He relies on Kappelman v. Lutz²⁰ to support his argument. Kappelman sought damages for injuries she sustained when Lutz drove them on a motorcycle at night and struck a deer.²¹ The Supreme Court decided that an emergency existed and the doctrine applied because deer are "quick, erratic, and unpredictable; they may run to the road and then across, or suddenly freeze. The appearance of a deer on the road can happen suddenly—as it did here—and is rare enough that a driver might not reasonably anticipate its occurrence."²² Kappelman made no argument that Lutz lacked alternative courses of action. Paradise argues that he found himself in a circumstance similar to that of the defendant and the deer in Kappelman.

But, as Baltazar notes, these facts are distinguishable from those in Kappelman. Unlike a deer darting into the roadway at night, neither common experience nor the record shows a three-foot wave on Puget Sound to besimilarly quick, erratic, and unpredictable enough that a boat captain would not reasonably anticipate it. And the defendant in Kappelman had several seconds between seeing the deer 50 feet away and impact to choose a course of action,²³ while Paradise testified that hitting the wave was "instantaneous."

Like the drivers in Zook and Brown, Paradise did not have alternatives, only time for a single instinctive reaction. Under these facts, the emergency doctrine does not apply. The trial court should not have given the jury an instruction about it.

But an erroneous instruction...