Cook v. Tarbert Logging, Inc., 32000–6–III.

• Court: Court of Appeals of Washington
• Citation: 190 Wash.App. 448,360 P.3d 855
• Docket Number: No. 32000–6–III.,32000–6–III.
• Parties: Raymond COOK and Arlene Cook, husband and wife and the marital community comprised thereof, Appellants, v. TARBERT LOGGING, INC., a Washington corporation, and Shane Bean and Jane Doe Bean, husband and wife and the marital community comprised thereof, and Stevens County, a local governmental entity, Respondents.
• Decision Date: 01 October 2015

190 Wash.App. 448
360 P.3d 855

Raymond COOK and Arlene Cook, husband and wife and the marital community comprised thereof, Appellants,
v.
TARBERT LOGGING, INC., a Washington corporation, and Shane Bean and Jane Doe Bean, husband and wife and the marital community comprised thereof, and Stevens County, a local governmental entity, Respondents.

No. 32000–6–III.

Court of Appeals of Washington, Division 3.

Oct. 1, 2015.

360 P.3d 857

F. Dayle Andersen Jr., Andersen Law Office, Spokane, WA, for Appellants.

Stephanie Bloomfield, Gordon Thomas Honeywell, Tacoma, WA, Michael Early Mcfarland Jr., Attorney at Law, Spokane, WA, for Respondents.

Opinion

SIDDOWAY, C.J.

190 Wash.App. 450

¶ 1 The jury trial of Raymond and Arlene Cook's claims arising out of a collision between a

190 Wash.App. 451

pickup truck driven by Mr. Cook and a logging truck driven by an employee of Tarbert Logging Inc. resulted in a defense verdict in favor of Tarbert, its driver, and Stevens County. The Cooks appeal, arguing that the trial court abused its discretion in making erroneous spoliation-based rulings that excluded the testimony of their expert on the key issue of the drivers' speeds at the time of impact, allowed defense experts to testify to the drivers' speeds using the Cooks' expert's photographs and measurements, and allowed the defense to invite a negative inference from the fact that the Cooks engaged an expert whom they did not call to testify.

¶ 2 The trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not. For that reason, and because only intentional spoliation logically supports an adverse inference, the

360 P.3d 858

trial court erred when it ruled in limine that it would admit evidence and allow defense argument in support of such an inference. The trial court also abused its discretion in ruling in limine that the defense could present evidence to support argument of what was tantamount to a missing witness inference from the Cooks' failure to call their expert witness on speed to testify at trial.

¶ 3 The error is reversible except as to Stevens County, which was sued for its negligent plowing of the road. Since the jury's special verdict found that the county was not negligent, any error in the evidence and argument on speed—which bore, in the county's case, only on comparative fault—was harmless as to the county.

¶ 4 We affirm the judgment in favor of Stevens County, reverse the judgment in favor of Tarbert and its driver, and remand for a new trial.

FACTS AND PROCEDURAL BACKGROUND

¶ 5 For the judges on this panel and many participants in the trial below, this case brought to our attention for the first time the existence of event data recorders in modem

190 Wash.App. 452

cars and trucks that not only continually monitor data about a vehicle's operation but also can retain data about its operation in the seconds before a crash. In this case, the event data recorder was an airbag control monitor (ACM) in Raymond Cook's 2006 GMC Sierra pickup truck.

¶ 6 As explained by the experts who testified at trial, the airbag icon that lights up on the dashboard during a vehicle's operation indicates that the ACM is working, streaming data about the key aspects of the vehicle's operation that inform whether to trigger the explosion that will deploy airbags. Among operating information continually being streamed through an ACM are the vehicle's speed, the engine's speed, the percent throttle, the brake switch circuit status, and the driver's seat belt status. An ACM is programmed with an algorithm that determines within milliseconds whether the operating information collectively signals a crash, in which case airbags will be deployed. After deployment, the ACM retains information that was streaming through it for up to five seconds “before algorithm enable.” Clerk's Papers (CP) at 14. If the vehicle is one for which software and hardware for reading retained data is available to the public, then according to experts in the trial below, the data is “very useful” in determining precrash speed. Report of Proceedings (RP) (Aug. 27, 2013) at 1207.¹

¶ 7 In this case, Mr. Cook's pickup truck collided with a Tarbert logging truck being driven by Shane Bean on a primitive road²in Stevens County one morning in February 2009. It is undisputed that the accident occurred on a particularly narrow stretch of the road on a blind curve, and

190 Wash.App. 453

that packed snow and ice on the road was very slippery that morning.

¶ 8 Mr. Cook was badly injured in the accident, and his pickup truck was totaled. He retained a lawyer to explore the possibility of legal action. By March 17, 2009, American Forest Casualty Insurance Company, which insured Tarbert, had received a letter from Mr. Cook's lawyer F. Dayle Andersen providing notice of a claim. A claims administrator for the insurer acknowledged the claim on March 18 and stated that a liability investigation was underway.

¶ 9 At the time, the GMC truck—which was registered in the name of Mr. Cook's sister, Gina Cook, and was owned by her limited liability company—was being stored in a shed belonging to Mr. Cook's son, Joshua.³Mr. Andersen told Joshua to maintain the vehicle as it was and to keep it indoors until further notice. On March 25, 2009, Mr.

360 P.3d 859

Cook and Mr. Andersen traveled to the shed with Dr. Richard Gill, a mechanical engineer and human factors specialist retained on Mr. Cook's behalf by Mr. Andersen, to inspect the truck. Dr. Gill took crush measurements and photographs.

¶ 10 Dr. Gill did not remove the ACM from the truck or download any data from it. When later deposed, he testified that he was familiar with event data recorders such as the ACM and with “the improvements that have been made over time with them[,] ... the variability in terms of the types of data that's recorded[, and] ... the limitations of them,” but that he was not qualified to download their data. CP at 284. He testified that he had become more familiar with them between 2009 and the 2012 date of his deposition, but that he had worked on cases even before March 2009 in which one of the experts had downloaded data from an event data recorder. He testified that while he was not

190 Wash.App. 454

qualified to download such data, he “certainly considered it both pro and con” when the data had been downloaded by someone else. Id.

¶ 11 In February 2010, Mr. Andersen served Stevens County with the statutorily required presuit notice that the Cooks asserted a tort claim against the county for negligent plowing of the road. SeeRCW 4.96.020. The Cooks contended that the county had failed to plow a swath through the snow and ice that was as wide as the roadway, leaving the plowed roadbed too narrow for the traffic for which the road was designed.

¶ 12 The county did not acknowledge liability in response to the statutory notice, and in December 2010 Mr. Cook filed his complaint for negligence against Tarbert, Mr. Bean, and Stevens County.⁴

¶ 13 Stevens County initially defended with a motion for summary judgment, evidently based on the “primitive” status of the road on which the accident occurred. After that motion was denied, the county asked the Cooks for the opportunity to examine the GMC pickup truck, through electronic mail sent by the county's lawyer in February 2012.

¶ 14 By the time of the county's request, the pickup truck had been “parted out” and sold. In a deposition later taken of Joshua, he testified that he could not recall precisely when he sought permission from Mr. Andersen to get rid of the truck. He provided two inconsistent answers that were never clarified. Based on those inconsistent answers, his parting out and selling of the truck took place either during a one-year period that began in the winter of 2009–10 or during a one-year period that began in August or September 2010.

¶ 15 Dr. Gill prepared a written report in September 2012 that included his opinion that Mr. Cook was traveling

190 Wash.App. 455

at a slower and safer speed than Mr. Bean at the time of the accident. Accusing the Cooks of spoliation, Stevens County filed a motion asking the trial court to preclude Dr. Gill from offering opinion testimony about Mr. Cook's speed before and at the time of the collision and to instruct the jury that the parting out of the pickup mandated an inference that the evidence, had it been preserved, would have been unfavorable to the Cooks' position. Tarbert joined in Stevens County's motion.

¶ 16 In support of the spoliation motion, Stevens County and Tarbert contended that Mr. Cook's lawyer gave Joshua permission to part out the truck and sell it for no good reason, aware that the defendants would probably want to examine it. They also contended that Dr. Gill's awareness of the ACM as a source of valuable information on speed should be imputed to the Cooks and their lawyer.

¶ 17 The Cooks argued that they retained the...