Evans v. Spokane County
| Decision Date | 05 November 2020 |
| Docket Number | 36495-0-III |
| Parties | CARLTON EVANS and MARGARET EVANS, husband and wife, Appellants, v. SPOKANE COUNTY, a local governmental entity doing business in Spokane County, Washington, Respondent. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Carlton and Margaret Evans sued Spokane County for damages for severe injuries suffered by Mr. Evans when a tall ponderosa pine in the county right-of-way snapped and crashed through his car's windshield. The trial court dismissed one of the Evanses' theories of liability on summary judgment and a jury trial of their remaining claim resulted in a defense verdict. The Evanses challenge the order granting partial summary judgment, three jury instructions, and rulings excluding or limiting the testimony of three of their experts. The County responds with four of its own challenges to instructional decisions made by the trial court, should we reverse and remand for a new trial.
We affirm the partial summary judgment, but a nonpattern jury instruction proposed by the County based on language from Laguna v. State, 146 Wn.App. 260, 265, 192 P.3d 374 (2008), misstated the law, was not harmless, and requires us to reverse and remand for a new trial. We address several harmless errors so they can be avoided in a retrial.
On July 23, 2014, the Spokane area experienced a heavy windstorm. As Carlton Evans drove home that afternoon to Chattaroy traveling on East Big Meadows Road, an 80- to 90-foot-tall ponderosa pine tree snapped 11 feet above the ground and crashed through the windshield of his car. The tree impaled Mr. Evans through his pelvis and severed his left hand, which eventually required amputation of his arm. The tree was located 11 or 12 feet off the side of the road, within Spokane County's 30-foot right-of-way.
After the County denied notices of claim filed by Mr. Evans and his wife, they filed suit in February 2017. Among the Evanses' theories of liability were that the County breached duties it owed as a municipality, as owner of the land on which the tree was located, and as possessor of the right-of-way, by negligently failing to maintain a "clear zone" free of trees and other natural and artificial obstacles along the right-of-way, by negligently failing to mitigate dangerous conditions along the right-of-way, and by negligently failing to adopt inspection and mitigation policies.[1] The Evanses contended that the County knew or should have known that the pine tree was dangerous either because the County created the danger or the danger was apparent.
The County admitted that Mr. Evans suffered catastrophic injuries from the tree's fall, that it owned the road, that the tree was within the right-of-way, and that it owed a common law duty to maintain its roadways in a condition reasonably safe for travel. It denied breaching those duties and denied the existence of some of the specific duties relied on by the Evanses. It also raised affirmative defenses of legislative and discretionary immunity and that the wind was a supervening cause of the tree breaking and falling on Mr Evans's car.
The conduct of discovery was contentious and resulted in two trial continuances. A late disclosure by the Evanses resulted in the trial court's exclusion of their weather expert Tim Wright.
Following the completion of discovery the County moved for summary judgment, asking the trial court to dismiss all of the Evanses' claims on multiple grounds. The trial court granted summary judgment only in part. It ruled that the County's road standards, which imposed a qualified duty to create a clear zone in certain circumstances, did not apply to Big Meadows Road. Alternatively, it ruled that the qualified nature of the duty-that a clear zone be created where its creation is practical and feasible-meant that legislative and discretionary immunity would apply.
In pretrial motions in limine, the County asked the trial court to exclude evidence from three of the Evanses' experts Mark Webber, an arborist; Joellen Gill, a risk management expert; and James Valenta, a civil engineer who specializes in transportation safety and the maintenance of roadways and other transportation facilities. The trial court denied the motion as to Mr. Webber, and he later testified that the pine tree whose fall injured Mr. Evans was structurally deficient due to disease; that the County caused the disease by misapplying herbicides; that the County should have seen that the tree was diseased; and that had the tree been healthy it would not have fallen from the wind speeds experienced on the day of the accident.
Mr. Valenta, the civil engineer with a working background in highway safety and as upper-level management for two municipal transportation departments in the Midwest, was expected by the Evanses to testify to best practices and standards of care for municipal transportation departments. The County argued that he should be excluded because all of his testimony went to the clear zone theory, which was out of the case by virtue of the summary judgment ruling. The Evanses argued that Mr. Valenta would offer testimony on issues that remained: that the County's budget was sufficient to fund inspection and mitigation that would have resulted in removal of the subject hazardous tree. The trial court ruled that Mr. Valenta could offer only opinions unrelated to the clear zone and the Evanses would have to establish a foundation for that unrelated testimony at trial.
Mr. Valenta eventually testified as a rebuttal witness. The Evanses were unsuccessful in efforts to elicit his testimony that the County had a budget surplus that could have been spent on training, roadway inspection and danger mitigation, and that several other Washington counties had vegetation management plans for road maintenance that included provisions for inspecting for dangerous trees. This was due largely to the trial court's rulings on objections to a lack of foundation and to subject matter areas being foreclosed by legislative or discretionary immunity.
Ms. Gill was the Evanses' expert on risk management. In voir dire conducted after the County challenged the relevance and helpfulness of her opinion, she testified that she intended to testify generally that the County's lack of a tree risk management program was neither reasonable nor safe. At the same time, however, she admitted that she had no knowledge or training about hazardous trees.
In ruling on the admissibility of Ms. Gill's testimony, the court accepted her as an expert on risk management, noting she had previously been admitted as an expert in the court on other matters. The trial court found that Ms. Gill had no foundational knowledge from which to express an opinion that tree risk management plans were a best practice or that having such a plan was required by ordinary care, however. At most, if presented with a safety plan, she could bring her knowledge and experience to bear in identifying its weaknesses and strengths. But the County had no tree risk management plan, a fact testified to by several County witnesses. The trial court excluded Ms. Gill as a witness, finding her proposed testimony unhelpful to the jury.
The parties offered a number of modified versions of pattern instructions from former Washington Practice: Washington Pattern Jury Instructions: C/v//(6thed. 2012) (WPI). Both parties also offered nonpattern instructions. When given the opportunity to voice objections and exceptions at an instruction conference taking place on the last day of trial, both parties raised a number of objections and exceptions to the trial court's final proposed instructions. The trial court ultimately gave 26 instructions, one of which, instruction 18, was inserted following the conference (although with a forewarning that an instruction described, but not provided, would be inserted).
The special verdict form provided to jurors asked separately whether the County was negligent, whether its negligence was a proximate cause of injury to the Evanses, and what the jury found to be the amount of the Evanses' damages. By a vote of 10 to 2, the jury found the County was not negligent. It therefore never reached the question about proximate cause.
The Evanses appeal. In responding, the County raises challenges to some of the trial court's instructional rulings that it asks us to address in the event of a reversal.
RCW 36.75.020 requires counties to build and maintain their roads according to standards adopted by the county's legislative authority. Spokane County adopted its most recent roads standards by ordinance in 2010.
Among the standards adopted in 2010 are standards for clear zones. "Clear zone" is defined to mean "the unobstructed area provided beyond the edge of the traveled way for the recovery of errant vehicles." Clerk's Papers (CP) at 1045 (capitalization omitted). In other words a clear zone is that portion of the right-of-way intentionally cleared of all obstructions (manmade and natural) to permit a vehicle to safely recover steering and control and not crash into such objects if the vehicle leaves the roadway.
One of the Evanses' theories of liability was that County standards required a clear zone on Big Meadows Road, and the allegedly defective pine tree was located within the area of the required clear zone. They contended that if the County had created the required clear zone the tree would have been removed before...
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