Botka v. Estate of Hoerr
| Decision Date | 23 April 2001 |
| Docket Number | No. 46555-4-I.,46555-4-I. |
| Citation | 21 P.3d 723,105 Wash.App. 974 |
| Court | Washington Court of Appeals |
| Parties | Susan Neely BOTKA and Marcus Neely, wife and husband, Appellants, v. ESTATE OF Raymond C. HOERR, Deceased, Respondent. |
Peter Stephen Lewicki, William A. Olson, George Stafford Martin, Seattle, for Respondent.
Karol Whealdon-Andrews, Tacoma, for Appellants.
Susan Botka, a hospice nurse, brought this negligence claim against the estate of Raymond Hoerr for injuries sustained when she fell down an elevator shaft at the Hoerr residence. The defendant estate argued that Botka was a trespasser and that the deadman's statute barred her from testifying to her conversations with the decedent. Botka argued that she had permission to enter in the manner that she did, and that the estate waived the protection of the deadman's statute. The trial court held that Botka was a trespasser as a matter of law, found that the defendant did not waive the deadman's statute, and granted summary judgment to defendant. Botka appeals. We hold that there are material issues of fact regarding Botka's legal status, and that the estate has waived the deadman's statute. We therefore reverse and remand the case for trial.
Susan Botka was assigned to provide hospice care to Raymond Hoerr, who was terminally ill from cancer. Botka visited Hoerr at his home once or twice a week to provide hospice services. She customarily scheduled all hospice visits in advance by phone call at the beginning of the week. Hoerr was also being cared for by his two daughters and his son-in-law on a rotating basis.
Hoerr lived in a three story home, and stayed on the third level. The second floor contained bedrooms and a bathroom, as well as a laundry room. The ground floor was a mother-in-law apartment leased to a third party. The home had a set of exterior stairs leading from the ground floor to the third floor, as well as interior stairs leading from the second to the third floor.
Botka testified that when she visited Hoerr, she would simply knock and announce herself before entering the home rather than waiting for someone to come to the door. In accordance with hospice custom, this practice was intended to reduce disruptions for bedridden patients and busy caregivers. Hoerr's daughter Nancy Walsworth confirmed in her deposition that Botka did not wait for someone to come to the door before entering, and that most of the hospice workers would typically enter the Hoerr residence in the same manner. However, in her declaration in support of the estate's summary judgment motion, Walsworth contradicted herself and stated that hospice workers had no right to enter the home without being invited in. Walsworth also declared that Botka had no authority to enter unannounced into any part of the home.
On previous visits, Botka had reached Hoerr's living area by ascending the exterior stairs to the third floor, as she had been told to do. However, after several visits, Botka expressed concern about using the exterior stairs to the third floor due to a fear of heights. Hoerr suggested that Walsworth show Botka out of the house by leading her down the interior staircase to the second floor entrance. Walsworth did so. It was Botka's understanding that Hoerr and Walsworth had given her permission to knock and announce herself at the second floor entrance, then proceed to the third floor via the interior stairs.
On the day of the accident, Botka went to the Hoerr residence to deliver medical supplies. Botka testified that she had called Hoerr to tell him that she was coming. She went up the exterior stairs to the second floor entrance, knocked on the door, announced herself and proceeded to enter. The entry doors to the laundry room were off the exterior second floor deck. She thought that the laundry room entrance was the same second floor door she had taken out of the house on her prior visit, so she went in, looking for the interior stairway to the third floor. The room was dim. She saw two doors, and opened the door directly in front of her. It was dark, and Botka assumed it was a hallway. She felt along the side walls for a light switch, but did not find one. She then stepped forward, still feeling for a light switch, and fell approximately eight feet to the bottom of an elevator shaft. The door to the elevator shaft was an ordinary interior door, with no sign indicating that it was an elevator, and no switches on the wall that might suggest an elevator. Botka sustained serious injuries.
Walsworth was at the home with her father on the day of the accident. She heard a loud noise, searched the home, and discovered Botka at the bottom of the elevator shaft. Walsworth said that she did not know Botka was coming that day, and was not aware that Botka had entered the home. Hoerr died a few weeks after Botka's accident, and Walsworth became the personal representative of Hoerr's estate.
Botka filed a personal injury claim against the estate of Raymond Hoerr. The estate moved for summary judgment, arguing that Botka was a trespasser on the day of her fall because she entered the home and specifically the laundry room without the knowledge or permission of the occupants. Botka opposed the motion, arguing that she had permission from both Walsworth and Hoerr to enter the home on the second floor, that she had called Hoerr in advance to let him know she was coming, and that as a hospice worker she routinely entered without waiting for someone to answer the door. She relied on excerpts from Walsworth's deposition as well as her own declaration. Botka also argued that even if she was a trespasser, the unmarked elevator shaft was willful and wanton conduct warranting liability to trespassers.
In its reply, the estate invoked the deadman's statute1 in moving to strike Botka's testimony as to her conversations with Hoerr. The estate also argued that there is no evidence in the record, even including the challenged testimony, that Botka had permission to proceed unescorted into the home. Therefore, it argued, Botka's status as a trespasser was determinable as a matter of law.
The trial court granted the estate's motion to strike based on the deadman's statute, and granted summary judgment to the estate. The trial court denied Botka's verbal request for a continuance at the hearing for failure to comply with CR 56(f). Botka moved for reconsideration, arguing that the estate had waived the protection of the deadman's statute, and again requested a continuance for further discovery. The trial court denied Botka's motion for reconsideration. This appeal followed.
On appeal from summary judgment, the standard of review is de novo and the appellate court performs the same inquiry as the trial court.2 All facts and reasonable inferences are considered in the light most favorable to the nonmoving party.3
Botka contends that Walsworth waived the protection of the deadman's statute by implicitly denying the existence of conversations between Botka and Hoerr that go to the heart of Botka's case. In her declaration, Walsworth stated that:
Anyone coming to see my father had to walk up the exterior stairwell to the third floor ... [i]t was Ms. Botka's normal practice to call before she came out to the home. On that day, she did not call and I was not aware that she was coming. I did not give her permission to enter the laundry room. There was no reason for her to be in the laundry room. I did not invite her into the home on that day because I was not even aware that she was there. She should have announced her arrival at the third floor as she had done before. I would have then escorted her to my father. She had no authority to enter unannounced into any part of the home especially the laundry room where she had no reason to be in the first place.
Botka contends that (1) Walsworth cannot swear that Botka "did not call" on the day of the accident without implying that Botka never spoke to her father, because Walsworth and Hoerr were the only people in the home at that time; and (2) Walsworth cannot say that Botka "had no authority" to enter on the second floor without implying that Hoerr did not give Botka permission to do so. Therefore, the estate waived the protection of the deadman's statute and opened the door to Botka's rebuttal testimony regarding her conversations with Hoerr. We agree.
The deadman's statute may be waived by an adverse party by (a) failure to object, (b) cross-examination which is not within the scope of direct examination, or (c) testimony favorable to the estate about transactions or communications with the decedent.4 The deadman's statute precludes not only positive assertions that a transaction or conversation with the decedent took place, but also testimony of a "negative" character denying interactions with the decedent.5 Such negative testimony by an adverse party in the context of a summary judgment motion constitutes a waiver of the deadman's statute and opens the door to rebuttal from the interested party.6 In Bentzen v. Demmons, we concluded that the defendant's statements that his deceased aunt never told him of the existence of an oral agreement between his aunt and the plaintiff effectively implied that the agreement never existed, thereby waiving the deadman's statute and opening the door for rebuttal.7
We hold that Walsworth's declaration waived the deadman's statute. By stating that Botka "had to walk up the exterior stairwell to the third floor," "had no authority to enter unannounced into any part of the home," that "there was no reason for her to be in the laundry room," and "she should have announced her arrival at the third floor," Walsworth necessarily implied that Hoerr did not give Botka authority to act as she did. This opens the door for Botka to rebut Walsworth's statements with testimony regarding Botka's conversations with Hoerr. Similarly, Walsworth's statement that Botka "did not call" also waived the...
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