Brown v. Spokane County Fire Protection Dist. No. 1

• Decision Date: 04 August 1983
• Docket Number: No. 48689-1,48689-1
• Citation: 100 Wn.2d 188,668 P.2d 571
• Court: Washington Supreme Court
• Parties: Thomas BROWN, Personal Representative of the Estate of Susan Marie Holmes, Petitioner, v. SPOKANE COUNTY FIRE PROTECTION DISTRICT NO. 1, Respondent, and SPOKANE COUNTY FIRE PROTECTION DISTRICT NO. 1, Respondent, v. Victor HOLMES, Petitioner.

Page 188

100 Wn.2d 188

668 P.2d 571

Thomas BROWN, Personal Representative of the Estate of Susan

Marie Holmes, Petitioner, v. SPOKANE COUNTY FIRE PROTECTION DISTRICT NO. 1, Respondent, and SPOKANE COUNTY FIRE PROTECTION DISTRICT NO. 1, Respondent, v. Victor HOLMES, Petitioner.

No. 48689-1.

Supreme Court of Washington En Banc.

Aug. 4, 1983.

Bryan Harnetiaux, Malott, Southwell & O'Rourke, Dan O'Rourke, Spokane, for petitioner.

Hemovick & Nappi, Joseph Nappi, Spokane, for respondent.

WILLIAM H. WILLIAMS, Chief Justice.

This case is a consolidation of two actions brought by petitioners Victor Holmes and the estate of Susan Marie Holmes against the respondent Spokane County Fire Protection District No. 1 (district), seeking damages for wrongful death and personal injuries arising out of a traffic accident in the Spokane Valley. Following an extensive 3-week trial, the jury returned a verdict in favor of respondent on petitioners' wrongful death and personal injury claims and awarded the district $24,402.87 on its counterclaim for property damage done to its fire engine. The trial court entered judgment on the jury's verdict. The Court of Appeals, Division Three, affirmed the trial court judgment in all respects. We likewise affirm.

On April 18, 1976, Victor and Susan Holmes, traveling in a modified 1930 Model A Ford driven by Mr. Holmes, collided with a fire engine operated by a district fireman, Mr. Barry Bucher. At the time of the collision, fireman Bucher was accompanied in the cab by Lieutenant Daniel Bruna. The collision, which occurred at a busy intersection in the Spokane Valley, resulted in the death of Susan Holmes and caused serious injuries to Victor Holmes.

This action was commenced against the district by Thomas Brown, as personal representative of the estate of Susan Holmes, and by Victor Holmes on his own behalf. Petitioners alleged a violation of the district's statutory duty of care under RCW 46.61.035 and RCW 46.61.210. ¹ The district disputed any liability and contended Mr. Holmes had been negligent in failing to yield the right of way, using excessive speed, and/or in failing to hear and see the fire engine as it approached the intersection. In addition, the district filed a counterclaim against Victor Holmes for property damage done to the fire engine in the collision.

At trial, a number of factual issues were disputed including the speed of the Holmes vehicle, the speed of the fire engine, and the color of the traffic light for each vehicle. Each side presented evidence on these factual issues, including the testimony of various expert witnesses who formulated opinions about the manner in which the impact occurred. At the conclusion of the evidence, petitioners moved for a directed verdict and partial summary judgment on the issues of liability and the color of the traffic light for the fire engine. The trial court denied these motions. The jury found no negligence on the part of the district, but did find negligence on the part of Mr. Holmes. Consequently, the jury denied recovery to petitioners, but awarded the district $24,402.87 in property damages against Mr. Holmes.

In an unpublished opinion, the Court of Appeals, Division Three, affirmed the trial court. Although the court did find error in the admission into evidence of the district's alarm room tape recording, it found the error to be nonprejudicial to the outcome of the case. Brown v. Spokane Cy. Fire Protection Dist. No. 1, 31 Wash.App. 1038 (1982).

Initially, petitioners contend the trial court erred in giving jury instruction No. 13, which reads:

Every person using a public street or highway with ordinary care has the right to assume that other persons thereon will use ordinary care and will obey the rules of the road, and he has a right to proceed on such assumption until he knows, or in the exercise of ordinary care should know, to the contrary.

(Italics ours.) Clerk's Papers, at 74. Except for the words "with ordinary care", this is the "right to assume" instruction of WPI 70.06, 6 Wash.Prac. 309 (2d ed. 1980). Petitioners argue that this instruction erroneously removed from the emergency vehicle driver the duty to anticipate how his emergency vehicle might affect normal driving patterns. They insist that this is tantamount to giving the emergency vehicle driver the right to conclusively presume that, when the required siren signal and flashing lights are operated, other highway users will yield. Such was the rule under Lakoduk v. Cruger, 48 Wash.2d 642, 296 P.2d 690 (1956), but that standard was superseded by the "duty to drive with due regard for the safety of all persons" standard of RCW 46.61.035. We previously have interpreted that statute to impose a traditional "negligence" standard of care on emergency vehicle drivers. Mason v. Bitton, 85 Wash.2d 321, 325-26, 534 P.2d 1360 (1975). Petitioners contend the above instruction essentially resurrects the Lakoduk rule.

We disagree with petitioners' argument. As the Court of Appeals pointed out, jury instruction No. 13 refers to "every person" and therefore applies to the district as well as Mr. Holmes. Thus, both parties were required to use ordinary care at the time of the accident. The ordinary care standard is then reemphasized in the same instruction by the clause "or in the exercise of ordinary care should know ..." Clerk's Papers, at 74. Further, this duty was reiterated in jury instruction No. 11, which provides that: "One is charged with the duty of seeing that which he would have seen had he been exercising ordinary care." Clerk's Papers, at 72.

We recognize that the standards of care charged to the driver of an emergency vehicle and to the driver of an ordinary vehicle, while similar, are not precisely the same. The privileges granted to the driver of an emergency vehicle under RCW 46.61.035, such as the privilege to proceed past stop signals and the privilege to exceed maximum speed limits, are not available to the driver of an ordinary vehicle. Notwithstanding these provisions, the statute requires the driver of an emergency vehicle to drive with "due regard for the safety of all persons," and further provides that the privileges granted therein do not "protect the driver from the consequences of his reckless disregard for the safety of others." RCW 46.61.035(4). Despite the reference to "reckless" conduct, we believe the Legislature intended to charge the driver of an emergency vehicle with the duty of exercising due regard for the safety of all persons under the existing facts and circumstances. The facts and circumstances of each case include the privileges granted by RCW 46.61.035. Thus, the test of due regard as applied to emergency vehicle drivers is whether, given the statutory privileges of RCW 46.61.035, he acted as a reasonably careful driver.

Under RCW 46.61.210(1), the driver of an ordinary vehicle must yield the right of way to an authorized emergency vehicle making use of audible and visual signals by immediately driving to a position parallel and as close as possible to the right edge of the road, clear of any intersection, and remaining there until the emergency vehicle has passed. Although the emergency vehicle driver cannot be permitted to act on the blind assumption that other drivers will comply with RCW 46.61.210(1), he has the right to assume other drivers will yield the right of way as required by law until it is otherwise apparent. RCW 46.61.035(4) and RCW 46.61.210(2) make it clear that at no point, including the circumstances where another driver fails to yield the right of way, is an emergency vehicle driver relieved of the duty to drive with due regard for the safety of all persons. See also Boyle v. Emerson, 17 Wash.App. 101, 108, 561 P.2d 1110 (1977); Shawnee Township Fire Dist. No. 1 v. Morgan, 221 Kan. 271, 278-79, 559 P.2d 1141 (1977). The trial court's jury instruction No. 9, patterned after RCW 46.61.035, accurately sets forth the applicable law in this area:

Defendant's vehicle was an authorized emergency vehicle. When such an authorized emergency vehicle is responding to an emergency call, and if the siren is being sounded when and to the extent reasonably necessary to warn pedestrians and other drivers of its approach and if the special lights on the vehicle are in operation the driver of the emergency vehicle may exercise the following privileges:

(a) He may park or stand, irrespective of the provisions of the law applicable to motorists generally;

(b) He may proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(c) He may exceed the maximum speed limits so long as he does not endanger life or property;

(d) He may disregard regulations governing direction of movement or turning in specified directions.

These exemptions granted to an authorized emergency vehicle do not relieve its driver from the duty to drive with due regard for the safety of all persons under all of the circumstances, including the circumstances of the emergency.

In determining whether the driver of the emergency vehicle complied with the "duty to drive with due regard for the safety of all persons" you are instructed that the standard of care in this regard is governed by the instructions defining "negligence" and "ordinary care".

Except for the privileges enumerated and the conditions here set forth when those privileges may be exercised, the driver of an authorized emergency vehicle is subject to the laws applicable to other drivers.

(Italics ours.) Clerk's Papers, at 70.

It is a well established rule that jury instructions must be considered in their entirety. Braxton v. Rotec Indus., Inc., 30 Wash.App. 221, 224, 633 P.2d 897 (1981). Instructions are sufficient if they (1) permit each party to argue his theory of the case, (2) are not misleading, and (3) when read as a whole, properly inform the trier of fact of the applicable law. State v. Theroff, 95...