Bartlett v. Hantover, 43031
| Decision Date | 03 October 1974 |
| Docket Number | No. 43031,43031 |
| Parties | James BARTLETT, Respondent, v. Bruce HANTOVER and Jane Doe Hantover and the marital community composed thereof, d/b/a Pacific Sands Motel, Petitioners. . En Banc |
| Court | Washington Supreme Court |
Skeel, McKelvy, Henke, Evenson & Betts, Frederick V. Betts, Seattle, for petitioners.
Jack M. Sawyer, Seattle, for respondent.
The Court of Appeals, Division I, affirmed a jury award aganst a defendant motel owner in favor of his plaintiff employee for gunshot wounds inflicted by a third person upon the plaintiff while he was at work.
There are three issues raised on appeal to this court. The first is whether the trial court erred in permitting evidence of subsequent installation of bulletproof glass in the manager's desk area when there was no issue of fact as to either dominion, control or feasibility of the alterations. The second is the propriety of the instruction on the subject of lost earnings and lost earning capacity. The last is the defendant employer's liability for injuries to his employee caused by the intentional criminal acts of a third person. The case is remanded for new trial inasmuch as the trial court erred in its ruling on the first issue. The instruction on damages should be modified on retrial. We find no error in the ruling on the defendant's liability. 1
* * * On June 22, 1969, at about 10:30 p.m., the plaintiff, who worked as manager of the motel, was in the living quarters behind the office. When he heard the outside door open, he went into the office and stood behind the counter. Two men had entered and one was standing on the left and one to the right of the plaintiff approximately 6 feet away. The plaintiff asked each man separately if he could help him. One responded by saying they would like a room but immediately thereafter, the plaintiff was knocked to the floor by a bullet in the head. He was shot again in the left shoulder as he tried to get up. There was never any mention of holdup or robbery, nor any demand for money; the plaintiff was 'just point blank shot without asking, . . .'
Previously on March 19, 1969, the plaintiff had been the victim of an armed robbery in the same office. At that time he offered no resistance, no shots were fired and no one was injured. Between the two ocurrences, the plaintiff suggested to the owners that they join an intermittent patrol system and also suggested the placing of a sign in the office to the effect that there was 24-hour surveillance. The owner replied by stating that in neither case would such precautions do any good. A few weeks after the shooting, the owners purchased and installed bulletproof glass and metal plating which made the portion of the motel office behind the counter bulletproof.
The trial court admitted testimony concerning the installation of boiler plate and bulletproof glass to protect the office area behind the counter. * * *
We have heretofore allowed evidence of safety measures after an accident as admissible when the issue of practicability or feasibility is made an issue by either the plaintiff or defendant. Brown v. Quick Mix Co.,75 Wash.2d 833, 454 P.2d 205 (1969). In Brown, one defendant admitted that installation of a guard on an auger, (which was done after the accident), was feasible before the injury occurred. His codefendant vigorously contended that the guard was not practical. We stressed that if the issue of feasibility is in the case, it is relevant regardless of whether the issue is part of the plaintiff's case and his burden of proof, or injected by the defendant as a defense.
The facts of this case, however, fail to bring it within the exception we noted in Brown. The defendant stipulated at a pretrial conference, his dominion and control over the motel and the feasibility of better protecting his employee from a third party's crime by installation of bulletproof glass. The evidence was, therefore, not relevant to matters before the jury for consideration. Relevancy 'means the logical relation between proposed evidence and the fact to be established.' Keisel v. Bredick, 192 Wash. 665, 669, 74 P.2d 473, 475 (1937). All facts are admissible in evidence which afford reasonable inferences or throw any light upon the contested matter.
In this case the evidence of subsequent alterations was not admitted to throw any light upon the contested matter inasmuch as at the pretrial conference the defendant motel owner stipulated that he would admit in testimony upon direct examination, dominion and control over the motel facility and feasibility of better protecting the injured plaintiff from intentional criminal acts of a third person by use of a bulletproof cage in the manager's office. If either of these two questions had been an issue in the case, or a 'contested matter' as stated in Keisel, then evidence of the defendant's subsequent alterations offered to prove them would have been admissible under our rationale in Brown. It takes, however, two parties to make a factual allegation a contested matter in a case. An admission by both sides of what is sought to be established removes it as an issue in the case and it is not a contested matter. The evidence which either directly or by inference tends to prove what the other party admitted, is not relevant and should be excluded. This is recognized in C. McCormick, Evidence § 275 (E. Cleary 2d ed. 1972). There the author recognizes that the general rule is to exclude evidence of remedial safety measures such as repairs, changes and construction, or installation of new safety devices when offered as admissions of negligence or fault. He observes, however, at pages 667--68, that
The ingenuity of counsel in suggesting other purposes has made substantial inroads upon the general rule of exclusion. Thus evidence of subsequent repairs or changes has been admitted as evidence of . . . the possibility or feasibility of preventive measures, when properly in issue; . . .
The author cautions that
before admitting the evidence for any of these other purposes, the court should be satisfied that the issue on which it is offered is of substantial importance and is actually, and not merely formally in dispute, that the plaintiff cannot establish the fact to be inferred conveniently by other proof, and consequently that the need for the evidence outweights the danger of its misuse.
(Footnotes omitted.)
The evidence of actual subsequent alterations which the trial court admitted into evidence had the prejudicial effect of showing by inference that the defendant himself must have believed his prior inaction was negligent because he subsequently altered the...
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