Fenimore v. Donald M. Drake Const. Co.
| Decision Date | 06 May 1976 |
| Docket Number | No. 43735,43735 |
| Citation | 549 P.2d 483,87 Wn.2d 85 |
| Court | Washington Supreme Court |
| Parties | William Lee FENIMORE, Appellant, v. DONALD M. DRAKE CONSTRUCTION COMPANY, Respondent. |
Schroeter, Jackson, Goldmark & Bender, John Goldmark, Seattle, for appellant.
Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Terence P. Lukens, Craig P. Campbell, Seattle, for respondent.
The appellant was injured when a reinforcing steel structure upon which he was working toppled. The structure, a cage which was designed to form a portion of the reinforcement for one of the concrete columns supporting the dome of the King County stadium, was footed in concrete. Ordinarily stable in the absence of some horizontal force, it bent to the ground under stresses placed upon it in the process of changing guy wires which were used to keep it aligned.
The appellant was entitled to workmen's compensation, since his employer, a subcontractor, was covered under the industrial insurance act. He brought this action against the general contractor (the respondent here) and the owner, alleging that negligence of the former was a proximate cause of his injuries. The respondent denied any negligence proximately causing the accident.
By the time the case was ready for trial, the appellant had dismissed the owner (King County) and had reduced his claims of negligent acts to the following: (1) failing to provide the plaintiff a safe place to work; and (2) installing an inadequate anchor bolt.
After a month of trial, the case was submitted to the jury, which returned a verdict in favor of the respondent. We accepted an appeal directly to this court in order to clarify our prior holdings and our position with respect to the use of pretrial motions to exclude evidence.
The appellant's motion was made orally on the opening day of trial. It asked the court to exclude any evidence of negligence on the part of the subcontractor which the respondent might offer, unless the evidence tended to establish (1) that the subcontractor was responsible for the selection and positioning of the anchor bolt, (2) that the bolt was as strong or stronger than the other components of the guy wire system used to steady and align the cages, or (3) that the subcontractor's acts, after installation of the bolt, were entirely unforeseeable by the respondent. The evidence which the appellant sought to exclude was not specified and the court was not given a memorandum showing that the evidence was inadmissible.
In opposing the motion, the respondent contended that it was entitled to show that the accident was caused solely by the negligence of the subcontractor. The appellant's argument to the court, on the other hand, assumed that negligence of the respondent was a contributing cause of the accident. It was therefore his theory that concurrent negligence of the subcontractor would be irrelevant, since such negligence does not excuse a defendant whose negligence was also a cause of an injury.
In denying the motion the trial court noted that the relevance of testimony not yet offered would have to be determined in the context of the trial. It advised the appellant to object as the evidence was offered, when the court would be in a better position to determine its relevance and admissibility.
Motions made by the respondent to limit the appellant's evidence were also denied.
In attacking the trial court's ruling denying his motion, the appellant contends that the jury should have been shielded from evidence that negligence of his employer caused the accident. He cites the case of Lapasinskas v. Quick, 17 Mich.App. 733, 170 N.W.2d 318 (1969), a suit to recover for injuries to a child resulting from the defendant's negligent driving. The Michigan court held that it was error to deny a motion to exclude evidence of the father's negligence in failing to properly attend his child. There was no contention in that case that negligence of the father was the Sole proximate cause of the accident. It was assumed by the court that evidence of his negligence was not relevant to any issue in the case and was introduced only to prejudice the jury.
Other cases cited by the appellant from other jurisdictions, namely McCullough v. Ward Trucking Co., 368 Mich. 108, 117 N.W.2d 167 (1962), and Sacramento and San Joaquin Drainage Dist. v. Reed, 215 Cal.App.2d 60, 29 Cal.Rptr. 847 (1963), support the general proposition that inadmissible and prejudicial evidence should be excluded upon proper motion being made, but do not illuminate the question whether evidence of the subcontractor's negligence in this case was inadmissible.
There was nothing in the record before the trial court at the time the appellant made his motion to show that negligence of the respondent was established or that such negligence caused the accident. Negligence is never presumed. Wilson v. Stone, 71 Wash.2d 799, 431 P.2d 209 (1967). While the burden was upon the appellant to show these facts, it was at the same time the respondent's right to show that the accident was produced by some other cause. In fact, if the appellant should make out a prima facie case, it would then be incumbent upon the respondent to go forward with the evidence and show that the accident resulted from some other cause. Poth v. Dexter Horton Estate, 140 Wash 272 248 P. 374 (1926); 65A C.J.S. Negligence § 208 at 471 (1966).
All facts tending to establish a theory of a party, or to qualify or disprove the testimony of his adversary, are relevant. Ladley v. Saint Paul Fire & Marine Ins. Co., 73 Wash.2d 928, 442 P.2d 983 (1968)
It may be granted that, if the appellant should convince the jury that the respondent's negligence was a proximate cause of the injuries, proof of the concurrent negligence of the third party would not relieve it of liability. Nevertheless, since it was relevant to the respondent's theory of the case, evidence of the subcontractor's negligence was admissible. The trial court was justified in denying the motion for this reason alone, without taking into account the additional fact that the motion did not specify the evidence which it was sought to have excluded.
Pretrial motions to exclude evidence are designed to simplify trials and avoid the prejudice which often occurs when a party is forced to object in front of the jury to the introduction of inadmissible evidence.
An annotation in 94 A.L.R.2d 1087 (1964) declares that the concept of securing a ruling on relevant evidence at any time other than during the trial of a case is entirely foreign to the common law. At the time this annotation was written, a majority of the courts were found to have held the view that a trial judge has no duty to entertain such a motion. Others had held that the judge had such a duty, and still others considered the matter discretionary with the trial court.
The only federal rule which would appear to authorize a court to entertain a pretrial exclusionary motion in a civil case is Fed.R. Evidence 104(c), adopted in 1975. It provides that hearings on preliminary matters may be conducted outside the presence of the jury when the interests of justice may require. No standards or guidelines are given.
A review of our cases shows that we have generally regarded the matter as one which is discretionary with the trial court. In State v. Smith, 189 Wash. 422, 65 P.2d 1075 (1937), a criminal prosecution in which the defendant had obtained a pretrial ruling excluding evidence that he deserted from the marine corps, we held that by obtaining the pretrial ruling the defendant was relieved of the necessity of objecting when the evidence was offered. A new trial was ordered because of the prosecutor's prejudicial misconduct in offering the evidence in spite of the court's ruling.
In State v. Morgan, 192 Wash. 425, 73 P.2d 745 (1937), error was assigned to the denial of the appellant's motion to require the prosecutor to advise the court in advance as to any questions which he proposed to ask or testimony which he intended to offer, relating to the appellant's previous arrests which had not resulted in convictions. This court noted that the appellant's motion was very vague and indefinite and extremely general in its nature, and held that the trial court was not required to consider the questions raised by the appellant before an offer of proof had been made. Citing State v. Smith, supra, this court said that the consideration of such a motion was discretionary with the trial court.
In Wilson v. Lund, 74 Wash.2d 945, 447 P.2d 718 (1968), the trial court had entered an order prohibiting the appellant-mother in a wrongful death action from introducing psychiatric evidence of injury to the parent-child relationship and/or loss of companionship. We said that this order was premature, because it was made without calling for an offer of proof or its equivalent, and the determination of relevancy was made upon conjecture.
Both State v. Morgan, supra, and Wilson v. Lund, supra, support the trial court's denial of the motion in this instance. As in the first of these cases, the motion was vague, indefinite and general in its nature. As in the second case, it asked the court to engage in conjecture regarding the relevancy of evidence which might later be offered.
Our most recent pronouncement upon the subject of pretrial motions to exclude evidence was made in State v. Hill, 83 Wash.2d 558, 520 P.2d 618 (1974), a criminal prosecution in which the trial court denied a defense motion to exclude evidence of prior convictions which had been reversed on appeal. This court found that, under the circumstances of that case, the threat of the introduction of such evidence discouraged the defendant from exercising his constitutional right to take the stand. Since the evidence was both inadmissible and prejudicial, we held that it was error to deny the motion.
As the appellant suggests, it appears that this case has overruled, Sub...
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