Cornejo v. State

• Decision Date: 15 February 1990
• Docket Number: No. 9012-4-III,9012-4-III
• Citation: 788 P.2d 554,57 Wn.App. 314
• Parties: Carlos C. CORNEJO, individually and as Personal Representative of the Estate of Elisa (Alice) Cornejo, Appellant, v. The STATE of Washington, Respondent.
• Court: Washington Court of Appeals

Page 314

57 Wn.App. 314

788 P.2d 554

Carlos C. CORNEJO, individually and as Personal Representative of the Estate of Elisa (Alice) Cornejo, Appellant, v. The STATE of Washington, Respondent.

No. 9012-4-III.

Court of Appeals of Washington Division 3, Panel Four.

Feb. 15, 1990.

As Amend on Denial of Reconsideration April 2, 1990.

James Rogers, Rogers & Darvas, Andrea Darvas, James Rogers & Associates, Seattle, Walter Dauber, Dauber & Bartheld, Yakima, for appellant.

John J. Kirschner, Asst. Atty. Gen., Seattle, for respondent.

THOMPSON, Judge.

Carlos C. Cornejo, individually and as personal representative of the estate of his late wife, Elisa (Alice) Cornejo, appeals a judgment entered on a jury verdict finding Mrs. Cornejo 90 percent negligent in her own death. Mr. Cornejo contends the jury was instructed improperly and the court erroneously permitted testimony on annuities as a way of replacing future economic losses. We affirm the damage award, but reverse and remand for a new trial on the issue of the parties' comparative liability.

Mrs. Cornejo fell to her death from the Ahtanum Creek Bridge. The bridge, an overpass structure ¹ on Highway 97 just south of Union Gap, Washington, actually consists of two parallel spans, one for the two northbound lanes and another for the single southbound lane. On the left and right sides of each span are 31-inch-high concrete "New Jersey" barriers. An open gap of approximately 5 feet separates the parallel bridges. At the point where Mrs. Cornejo died, the bridges are approximately 40 feet above the ground.

Mrs. Cornejo was returning home from work on January 19, 1985, driving north on Highway 97. Ahead of her was a car driven by Loretta Rhinevault. At approximately 5:30 p.m., as their cars entered onto the bridge, it was dark, and freezing rain had begun to fall. A "solid sheet of ice" covered the road. Ms. Rhinevault's car spun around and came to rest on the right side of the road, facing the oncoming traffic. Mrs. Cornejo's car also spun out and came to a stop about 20 feet from the Rhinevault car, roughly perpendicular to the direction of traffic, facing the median barrier and across portions of both northbound lanes.

Both drivers got out of their cars and spoke briefly. Ms. Rhinevault saw headlights from other vehicles approaching from the south. Both drivers turned away, and Ms. Rhinevault assumed Mrs. Cornejo was returning to her car. No one saw Mrs. Cornejo alive again.

A third car, driven by Ernesto Gonzalez, then collided with Mrs. Cornejo's car. A semi-truck, driven by Lawrence Trapp, jackknifed across both northbound lanes some distance to the south.

State Patrol officers found Mrs. Cornejo's body under the bridges several hours later. The investigating officer concluded Mrs. Cornejo was not struck by a vehicle, and formulated three possible explanations for her death: (1) she attempted to jump to the other bridge to avoid the oncoming traffic; (2) she straddled the barrier, lost control and fell; or (3) she jumped over the barrier, believing the area between the bridges was covered. A plaintiff's expert testified at trial, based on the location of the body under the bridges, that Mrs. Cornejo simply vaulted over the barrier, "with no premonition that there was a hazard [t]here ...".

At trial, Mr. Cornejo presented substantial evidence of the State's negligence, which is summarized briefly here:

Several witnesses testified they had come close to falling through the opening between the bridges, assuming, as Mrs. Cornejo apparently did, that the space between the barriers was part of a continuous bridge deck. Truck driver Trapp, on the evening of Mrs. Cornejo's accident, avoided a similar fall when he saw a light below. A Union Gap police officer and several firefighters, all of whom were familiar with the bridge, almost fell through the gap in the course of their duties on other occasions.

The mayor of Union Gap, John Hodkinson, wrote a letter to the State Department of Transportation in 1982, after the incident involving the firefighters. The mayor asked the department to install steel netting between the bridges. The department's district administrator said in a reply letter that he shared the mayor's concern, and noted a similar problem with parallel bridges in Kennewick. The administrator wrote that a screen had been placed over the gap in Kennewick "after several people had fallen through".

Transportation engineer Edward Martin Stevens testified there was a high potential for accidents on the bridge and the State had created an "extra hazardous condition" by failing to provide a means of preventing potential accident victims or rescuers from falling through the gap.

Lewis B. Horn, a structural engineer specializing in bridge design, testified it would have been feasible to design the bridge without the open gap, or alternatively to provide additional safety barriers or covering materials to prevent accidental falls. Mr. Horn testified the cost of installing a steel net over the gap would have been about $21,700.

A significant issue at trial was whether the gap between the bridges was visible, either by passing drivers or at nighttime by persons walking near the median barriers. The State's theory was that the opening was clearly visible to drivers, and because Mrs. Cornejo crossed the bridges regularly as she drove to and from work she should have noticed the gap. A State Patrol officer and two other witnesses testified they knew of the opening because they had seen it as they drove by. Counsel for the State also argued to the jury that Mrs. Cornejo should have seen the gap the night she fell, apparently on the basis that the truck driver, Mr. Trapp, saw a light under the bridges and thus knew the median was uncovered.

Mr. Cornejo responds by referring to evidence outlined above, indicating the gap was so deceptive that several people almost lost their lives as Mrs. Cornejo did. Several witnesses, including a former Union Gap police officer and truck driver Trapp, testified they were unaware of the open gap, even though they drove over the bridges regularly. Counsel for Mr. Cornejo argued to the jury that the light Mr. Trapp saw must have been from a car on the road below because nobody else saw it, and there were no permanent lights under the bridge.

The jury found the State's negligence proximately caused Mrs. Cornejo's death. It set damages at $343,667.47, but found 90 percent contributory negligence. ² From the net damages of $34,366.75, the court deducted amounts received from settlements with other parties, for a total judgment against the State of $2,365.75.

Jury Instructions

The principal issue is whether the court erred in instructing the jury on the "duty of seeing". Instruction 8 stated:

Every person has a duty to see what would be seen by a person exercising ordinary care.

See WPI 12.06. Mr. Cornejo contends Mrs. Cornejo had no duty to see the hazard that caused her death. He cites several cases that hold a person has no absolute responsibility to take note of her surroundings to discover an unanticipated danger. See Blasick v. Yakima, 45 Wash.2d 309, 313, 274 P.2d 122 (1954); Hines v. Neuner, 42 Wash.2d 116, 125-26, 253 P.2d 945 (1953); Baltzelle v. Doces Sixth Ave., Inc., 5 Wash.App. 771, 776, 490 P.2d 1331 (1971). However, these cases do not support the contention Mrs. Cornejo had no duty to notice the danger in this case. The cases merely indicate knowledge of a dangerous condition may be imputed to a person if it was reasonable for her to notice it under the circumstances. Blasick, 45 Wash.2d at 314, 274 P.2d 122; Hines, 42 Wash.2d at 125-26, 253 P.2d 945; Baltzelle, 5 Wash.App. at 776, 490 P.2d 1331. The question is one for the jury. Hines, 42 Wash.2d at 127, 253 P.2d 945; see Skaggs v. General Elec. Co., 52 Wash.2d 787, 791, 328 P.2d 871 (1958); Blasick, 45 Wash.2d at 314, 274 P.2d 122; Baltzelle, 5 Wash.App. at 776, 490 P.2d 133.

The court's instruction in this case merely told the jury Mrs. Cornejo should be held to the standard of a person exercising ordinary care, and was a correct statement of the law. Davis v. Bader, 57 Wash.2d 871, 874, 360 P.2d 352 (1961); Chase v. Continental Trading Corp., 5 Wash.App. 41, 43, 485 P.2d 463, review denied, 79 Wash.2d 1009 (1971); Mendenhall v. Siegel, 1 Wash.App. 263, 269, 462 P.2d 245 (1969), review denied, 77 Wash.2d 962 (1970).

Nevertheless, Mr. Cornejo contends that because Mrs. Cornejo did not have a positive duty to see the hazard, the instruction should not have been given. He relies on Day v. Goodwin, 3 Wash.App. 940, 478 P.2d 774 (1970), review denied, 79 Wash.2d 1001 (1971), in which the court found error in giving the "duty of seeing" instruction where only the defendant had a statutory duty to look for the hazard. Day, 3 Wash.App. at 945, 478 P.2d 774. Here, neither party had such a positive duty, but Mr. Cornejo argues the instruction should not have been given because it unfairly emphasized the State's theory of the case. We agree.

When the instructions as a whole so repetitiously cover a point of law or the application of a rule as to grossly overweigh their total effect on one side and thereby generate an extreme emphasis in favor of one party to the explicit detriment of the other party, it is, we think, error--even though each instruction considered separately might be essentially correct. Thus, if the instructions on a given point or proposition are so repetitious and overlapping as to make them emphatically favorable to one party, the other party has been deprived of a fair trial.

Samuelson v. Freeman, 75 Wash.2d 894, 897, 454 P.2d 406 (1969); see Brown v. Dahl, 41 Wash.App. 565, 579, 705 P.2d 781 (1985).

The "duty of seeing" instruction is a specific application of the general instruction that defines negligence as "the failure to exercise ordinary care". See WPI 10.01. For this reason, the comment to the pattern instruction notes it is ...