Erdman v. Lower Yakima Valley, Washington Lodge No. 2112 of B.P.O.E.
| Decision Date | 18 July 1985 |
| Docket Number | No. 6272-III-4,6272-III-4 |
| Parties | Karan "Skip" ERDMAN, and Anicia Erdman, his wife; and Anicia Erdman as Guardian ad Litem on Behalf of their children Robert ERDMAN and Nicole Erdman, Respondents, v. LOWER YAKIMA VALLEY, WASHINGTON LODGE NO. 2112 of B.P.O.E., a Washington corporation; Appellant, Loxi Allen, M.D., Physician's Anesthesia Associates, Inc., P.S., a Washington corporation; M.N. Dhruva, M.D.; Sisters of Providence Hospital, a Washington corporation d/b/a St. Elizabeth's Medical Center; Ohio Medical Products, Inc., a foreign corporation; and Airco, Inc., a foreign corporation, Defendants. |
| Court | Washington Court of Appeals |
John S. Moore, Velikanje, Moore & Shore, Yakima, Samuel C. Rutherford, Rutherford & Wallace, Omak, for appellant.
Phillip Offenbacker, Daniel F. Sullivan, Sullivan & Associates, Seattle, for respondents.
Bryan Harnetiaux, Robert Whaley, Winston & Cashatt, Spokane, for amicus curiae.
This lawsuit arises out of the slip and fall by Karan "Skip" Erdman at an annual Christmas party at the Sunnyside, Washington lodge of the defendant, the Lower Yakima Valley Lodge No. 2112 of the B.P.O.E. (hereinafter club). The club appeals a $3.2 million jury verdict for the Erdmans, claiming errors concerning instructional rulings and the method the court used to credit the pretrial settlement dollar amount. The Erdmans challenge the judgment dismissing the children's parental consortium claims and a post-trial ruling which eliminated $1.2 million in future medical expenses. We affirm in part, but reverse that portion of the judgment setting aside future medical expenses.
On December 20, 1979, Mr. Erdman arrived at the club about 5 p.m. to assist in preparations for the party being hosted by the officers. He was a member and exalted ruler of the club. The exalted ruler, while the highest officer, was not responsible for the care and management of the facility. Rather, he served a ceremonial function, presiding over club sessions and participating in various social events. The club board of trustees, of which the exalted ruler was an ex-officio, non-voting member, exclusively controlled the management of the club. The board rarely consulted the exalted ruler and hired a manager whose duties included the day-to-day maintenance, repair and operation of the club facilities.
During the party Mr. Erdman went to the kitchen where two other members were preparing "Tom and Jerry" batter and operating the dishwasher, which was cleaning the drinking cups. Mr. Erdman was handed a tray of cups and, when turning, slipped and fell to the floor. As a result, he sustained a herniated disc in his cervical spine, which eventually required neck surgery (an anterior cervical fusion.) 1 Surgery was performed without apparent complication on December 23, 1980, at St. Elizabeth's Medical Center in Yakima. But Mr. Erdman became comatose while in the post-operation recovery room. Tests later established he sustained hypoxic brain damage, resulting from a deprivation of oxygen to the brain.
Undisputed expert testimony documented the devastating effects of the hypoxia. Although a University of Minnesota graduate and funeral home operator, Mr. Erdman now is "very impaired and unemployable," with little chance for future improvement. He has difficulty concentrating and suffers from impaired motor activity, including speaking and general physical activity. One test evaluating brain impairment scored Mr. Erdman three standard deviations below the mean, indicating 99 people out of 100 would better perform various analytical and physical activities. These impairments have directly affected his family relationships: his husband-wife relationship is now similar to that of mother-child; his father-child relationships are more those of child-child. This injury is the basis for their lawsuit.
Mr. Erdman and his witnesses testified that before his fall, soapy fluid had accumulated on the tile floor in the kitchen area near the dishwasher. This accumulation on the tile caused slippery conditions which had existed for an extended time. A journeyman plumber employed by the club during a proposed kitchen renovation in fall 1979, noticed that a dishwasher drain pipe and water supply line leaked with each dishwasher cycle. One waitress reported that in her 2 years of employment there she fell no less than 12 times and notified all five managers about the slippery conditions. Many others testified to the unreasonably slippery conditions, which were confirmed by expert testimony: the kitchen floor had a friction co-efficient of .050, the equivalent of thawing ice, and only one-tenth of normal friction.
Mr. and Mrs. Erdman and their two children commenced separate negligence actions against the club, the surgeon, anesthesiologist, hospital and the anesthetic manufacturer in August 1981. Prior to trial, plaintiffs settled with the medical/hospital defendants pursuant to a reasonableness hearing for a total value of $815,000. The club made no objection and the court approved the settlement. The judge also dismissed the parental consortium claims of the Erdman children, concluding no claim existed at law.
Following trial in October 1983, the jury rendered Mr. Erdman a special verdict for $3,163,834, including $1,118,834 for future medically related care and treatment. Mr. Erdman was found 25 percent comparatively negligent, and Mrs. Anicia Erdman was awarded $40,000 for her separate consortium claim.
After trial, the court granted the club's motion to set aside the award for future medical expenses because Mr. Erdman had failed to "produce substantial evidence" of the specific costs and necessity of his future medical care. The court deducted the future medically related expenses from the total verdict, and next deducted 25 percent for Mr. Erdman's comparative negligence. The court then credited the pretrial settlement amount. As this settlement required that Mr. Erdman's claim and Mrs. Erdman's consortium claim be reduced by the settlement amount, the court allocated the $815,000 between the claimants: $709,000 allocated to Mr. Erdman, $96,000 to Mrs. Erdman and $5,000 to each of the children's claims. The court made the following computations with respect to Mr. Erdman's verdict:
VERDICT $3,163,834
Less award for future medical
expenses -1,118,834
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$2,045,000
Less 25 percent comparative
negligence - 511,250
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$1,533,750
Less settlement - 709,000
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NET JUDGMENT $ 824,750
Judgment for $824,750 was entered December 15, 1983.
THE CLUB'S APPEAL
On appeal, the club alleges the court: (1) improperly denied its motions for summary judgment and judgment notwithstanding the verdict (N.O.V.); (2) made several instructional errors; and (3) incorrectly credited the pretrial settlement.
Initially, we consider whether the court erred in refusing to grant the motion for summary judgment. Summary judgment is available only where there is "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." CR 56(c) The moving party must demonstrate that no genuine dispute exists as to any material fact and all reasonable inferences must be resolved against him. All evidence is considered in a light most favorable to the non-moving party. Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 349, 588 P.2d 1346 (1979); Mission Ins. Co. v. Guarantee Ins. Co., 37 Wash.App. 695, 700, 683 P.2d 215 (1984). The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Lamon, 91 Wash.2d at 349, 588 P.2d 1346; CR 56(c).
The club's sole contention in its motion was that Mr. Erdman achieved "vice-principal" status by virtue of his club leadership position and was therefore precluded from recovery from the club. Where a servant has exclusive control of the instrumentality by which the injury is caused, the agent is precluded from claiming against the master/principal. Bennett v. Messick, 76 Wash.2d 474, 476, 457 P.2d 609 (1969). However, as the record discloses, this issue raised questions as to what Mr. Erdman's legal status was when he was injured, and whether the club had the right to control Mr. Erdman's physical activities when the injury occurred. Since these questions of material fact could not be resolved by summary judgment, we conclude the court properly denied the club's motion.
We next consider the club's alleged instructional errors. The club first assigns error to jury instruction 12:
The defendant Elks Club owed a duty to the plaintiff Karan "Skip" Erdman to exercise ordinary care for his safety. This includes the exercise of ordinary care to maintain in a reasonably safe condition those portions of the premises which the plaintiff Skip Erdman was expressly or impliedly invited to use or might reasonably be expected to use under the circumstances in question.
The club presents no argument in opposition to the court's conclusion that Mr. Erdman was an invitee. 2 Rather, the club claims the court erred in failing to give its proposed "joint enterprise" instruction. 3 Restatement (Second) of Torts § 491 (1965), summarizes the club's theory:
(1) Any one of several persons engaged in a joint enterprise, such as to make each member of the group responsible for physical harm to other persons caused by the negligence of any member, is barred from recovery against such other persons by the negligence of any member of the group.
(2) Any person engaged in such a joint enterprise is not barred from recovery against the member of the group who is...
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