Chhuth v. George
| Decision Date | 29 April 1986 |
| Docket Number | No. 1,No. 6339-9-III,R,1,6339-9-III |
| Citation | 43 Wn.App. 640,719 P.2d 562 |
| Court | Washington Court of Appeals |
| Parties | , 32 Ed. Law Rep. 1107 Saranak CHHUTH and Tysaing Chhuth, husband and wife; Saranak Chhuth, as Administrator of the Estate of Saintyro Saranak Chhuth, Appellants, v. Sondra Michelle GEORGE; Pasco School Districtespondents and Cross-Appellants. Ronald George and Jane Doe George, and their marital community, Defendants. |
John E. Morse, Douglas J. Bratt, Morse & Bratt, Vancouver, for appellants.
David A. Thorner, Donald E. Templeton, Thorner, Kennedy, Gano & Rowley, P.S., Yakima, John W. Lohrmann, Lohrmann & Parker, Walla Walla, for respondents.
On September 25, 1981, Saintyro Chhuth age 7, was fatally injured when he was struck by an automobile driven by Sondra George while he was crossing a street on his way home from school. Saintyro and a group of school friends were attempting to cross to the south side of "A", a 2-way, 4-lane Pasco street, approximately midway between the intersections of 8th and 9th Avenues. Saintyro was struck by Ms. George's westbound vehicle traveling in the inside (south) lane. Another westbound vehicle driven by Albert Northrup in the outside north lane slowed and stopped upon seeing Saintyro. Ms. George, driving in the inside westbound lane, approximately 30 feet behind the Northrup car, could not see Saintyro because her vision was obscured by the Northrup car on her right. Saintyro's mother and father, Saranak and Tysaing Chhuth, brought survival and wrongful death actions against Pasco School District 1 (District) and Ms. George, the driver of the vehicle which struck the child. The District and Ms. George cross-claimed against each other and later counterclaimed against the Chhuths for contribution.
Prior to trial, the Chhuths moved to dismiss the counterclaims against them, contending they were protected by the doctrine of parental immunity. The motion was denied, trial was held, and the jury by special verdict found (1) Ms. George and Mrs. Chhuth were not negligent; (2) the District and Mr. Chhuth were negligent, but their negligence was not a proximate cause of Saintyro's injury and death; and (3) Saintyro was negligent and his negligence was the proximate cause of his death; 100 percent of the liability was apportioned to the child.
The trial court denied the Chhuths' motion for judgment notwithstanding the verdict or new trial against Ms. George and entered judgment on the special verdict January 23, 1984, dismissing the complaint against her. On March 23, 1984, the trial court ordered a new trial to apportion damages among the District, Mr. Chhuth, and Saintyro Chhuth. Noting that the jury found each of the three negligent, the court then ruled as a matter of law that the District's and Mr. Chhuth's negligence was a proximate cause of Saintyro's death. The Chhuths appeal the denial of a new trial and judgment n.o.v. against Ms. George and the denial of their motion to dismiss the claims against them for contribution. The District cross-appeals the granting of a new trial, contending the court erred when it ruled as a matter of law that its negligence was a proximate cause of injuries to Saintyro. In the event of a retrial, the District seeks to include Ms. George as a defendant. Ms. George cross-appeals the dismissal of her counterclaims if the issue of her negligence is relitigated. We affirm in part and reverse in part.
The first issue is whether the trial court erred in instructing the jury concerning Ms. George's duties (1) not to drive at a speed greater than is reasonable and prudent under the existing conditions, RCW 46.61.400(1); and (2) to anticipate the presence of children upon the public highway. The Chhuths assign error to the court's failure to give the following proposed instructions relating to Ms. George's standard of care:
Proposed Instruction 26:
A statute provides that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event, speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
Proposed Instruction 45, subsection 1(c):
1. Plaintiffs claim that defendant Sondra George was negligent in one or more of the following respects:
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(c) She drove her vehicle too fast for the existing conditions, those being the presence of children in the area.
The Chhuths argue Ms. George's awareness of children crossing the street at the same location on this and other occasions constituted the "conditions" and "actual and potential hazards" described in proposed instruction 26, see RCW 46.61.400(1), WPI 70.05, which imposed a statutory duty to reduce her speed below the posted 30 m.p.h.
In Kiemele v. Bryan, 3 Wash.App. 449, 476 P.2d 141 (1970), the court refused to give the speed instruction in a case involving a 9-year-old pedestrian struck on a narrow, 2-lane road as he returned home from school. The driver testified he first saw the child standing on the shoulder of the roadway with his back toward the road. The driver maintained a speed of 25 m.p.h. until he came abreast of the child, whereupon the child suddenly moved into the path of the automobile. Under those facts, the reviewing court held failure to submit the requested speed instruction prejudicially denied the plaintiff the opportunity to argue his theory the driver was negligent as a matter of law in failing to reduce speed. Kiemele, at 453, 476 P.2d 141.
A speed instruction is properly refused, however, where (1) excessive speed is not a proximate cause of the accident, or (2) a conclusion of unreasonable speed would be the product of impermissible speculation and conjecture. Grobe v. Valley Garbage Serv., Inc., 87 Wash.2d 217, 219, 551 P.2d 748 (1976); Windle v. Huson, 32 Wash.App. 230, 234, 646 P.2d 790 (1982). In Kiemele, the driver actually saw the boy and had adequate notice of the potential or actual hazard ahead. Here Ms. George saw some children who had already crossed the road, but she did not see Saintyro until the moment before impact when he darted out from in front of the Northrup car 2 feet in front of her. Here, as in Grobe, given the few seconds of available reaction time, speed was not a factor. Since Ms. George did not actually see Saintyro in time to reduce her speed to avoid contact with him, the facts did not support giving proposed instructions 26 and 45, subsection 1(c). The instructions given allowed plaintiffs to argue their theory of negligence based on Ms. George's failure to reduce speed upon seeing the Northrup car stopped and seeing other children in the vicinity.
The Chhuths next contend the trial court's failure to give their proposed instruction 31 coupled with the actual submission of instructions 21, 24, and 25 1 unduly emphasized the defense theory of Saintyro's contributory negligence.
Proposed instruction 31 provided:
The driver of a vehicle of any kind is bound to anticipate the presence of children upon the public highway and to exercise reasonable diligence to avoid injuring them and in so doing, he is not justified in assuming that a young child will manifest the judgment and prudence of an experienced man, but must govern his own conduct with some reasonable degree of respect for that fact.
Instruction 21 provided:
A statute provides:
That a pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.
This right of way, however, is not absolute but relative, and the duty to exercise ordinary care to avoid collisions rests upon both pedestrians and drivers. The primary duty, however, rests upon the party not having the right of way.
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Notwithstanding the foregoing, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall exercise proper precaution upon observing any child or any obviously confused or incapacitated person upon a roadway.
Instruction 24 provided:
Every person using a public street or roadway has the right to assume that other persons thereon will use ordinary care and will obey the rules of the road, and has a right to proceed on such assumption until he or she knows, or in the exercise of ordinary care should know, to the contrary.
Instruction 25 provided:
It is the duty of every person using a public street or roadway whether a pedestrian or a driver of a vehicle to exercise ordinary care to avoid placing himself or herself or others in danger and to exercise ordinary care to avoid a collision.
Proposed instruction 31 was taken from Johnson v. Barnes, 55 Wash.2d 785, 350 P.2d 471 (1960). Although Johnson did set forth a duty to anticipate the presence of children where children are in plain view along the roadway, Johnson, at 787-88, 350 P.2d 471, the case also distinguished itself from instances where children "darted" from behind some obstruction and could not have been seen in time to avoid the accident. Johnson, at 789, 350 P.2d 471. The court was therefore correct in rejecting the instruction here. Moreover, the court gave other instructions specifically referring to the standard of care of a child. 2 Taken as a whole, the instructions did not improperly overemphasize the defense or place a higher standard of care upon Saintyro.
The next issue is whether the trial court improperly allowed a claim of contribution against Saintyro's father for failure to properly supervise and instruct. Pursuant to RCW 4.22.040(1), 3 a new trial was granted to apportion Saranak Chhuth's comparative fault based on the court's...
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