Fite v. Mudd

• Decision Date: 09 November 2021
• Docket Number: No. 54325-7-II,54325-7-II
• Citation: 498 P.3d 538
• Parties: Austin K. FITE, individually, Respondent, v. Lee R. MUDD and "Jane Doe" Mudd, individually and husband and wife, and the marital community comprised thereof; and City of Puyallup, a Municipal Corporation under the laws of the State of Washington, Appellant.
• Court: Washington Court of Appeals

498 P.3d 538

Austin K. FITE, individually, Respondent,

v.Lee R. MUDD and "Jane Doe" Mudd, individually and husband and wife, and the marital community comprised thereof; and City of Puyallup, a Municipal Corporation under the laws of the State of Washington, Appellant.

No. 54325-7-II

Court of Appeals of Washington, Division 2.

Filed November 9, 2021

Philip Albert Talmadge, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, Andrew George Cooley, Keating Bucklin & McCormack, Inc. P.S., 801 2nd Ave. Ste. 1210, Seattle, WA, 98104-3175, Brian Augenthaler, Keating Bucklin & McCormack Inc., 801 2nd Ave. Ste. 1210, Seattle, WA, 98104-1518, Gary Manca, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw, Third Floor, Suite C, Seattle, WA, 98126, for Appellant.

Benjamin Franklin Barcus, Paul Alexander Lindenmuth, Ben F. Barcus & Associates PLLC, 4303 Ruston Way, Tacoma, WA, 98402-5313, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, for Respondent.

Jean P. Homan, Tacoma City Attorneys Office, 747 Market St. #1120, Tacoma, WA, 98402-3701, for Amicus Curiae City of Tacoma.

Christine M. Palmer, Kitsap County Prosecutor's Office, 614 Division St., Port Orchard, WA, 98366-4614, for Amicus Curiae City of Sumner.

J Ryan Call, City of Federal Way, 33325 8th Ave S., Federal Way, WA, 98003-6325, for Amicus Curiae City of Federal Way.

PUBLISHED OPINION

Veljacic, J.

¶ 1 Lee Mudd struck Austin Fite with his truck while Fite was riding his skateboard through a crosswalk. A jury awarded Fite $6.5 million in damages and found Mudd 33 percent at fault and the City of Puyallup (Puyallup) 67 percent at fault. The jury assigned no liability to Fite. Puyallup argues on appeal that the trial court erred in striking its intoxication affirmative defense on summary judgment, and in separately excluding evidence of intoxication.

¶ 2 Puyallup also argues that the court erred by submitting an instruction to the jury that favored Fite's theory of the case by instructing the jury, with instruction 28, to consider the "totality of the circumstances" in determining whether the crosswalk was safe, and by stating that a crosswalk may be unsafe even when there is no violation of statutes, regulations, or guidelines.

¶ 3 Puyallup further argues that the trial court erred in granting summary judgment regarding Fite's duty of care, erred in admitting two police reports, erred in denying Puyallup the opportunity to impeach a witness, and erred in excluding evidence of Fite's speed and events of the accident.

¶ 4 The trial court erred by granting Fite's motion for summary judgment prohibiting Puyallup from presenting the intoxication affirmative defense under RCW 5.40.060 because the evidence considered by the court at summary judgment created genuine issues of material fact preventing summary judgment. It also erred by submitting jury instruction 28 because the instruction included "totality of the circumstances" language but failed to explain what circumstances the jury should consider except for a sentence that improperly emphasized Fite's theory of the case. Lastly, the trial court erred in admitting hearsay police reports under the business records exception and by denying Puyallup the opportunity to impeach the only eyewitness to Fite's behavior immediately preceding the accident. Accordingly, we reverse and remand for a new trial.

FACTS

¶ 5 Mudd struck Fite while Fite traveled on a skateboard through a crosswalk. Fite was taken to the hospital and treated for his injuries. The hospital performed a screening urinalysis on Fite. Such test was not conducted to determine Fite's intoxication at the time of the accident but rather to assist in his medical treatment. The screening revealed Fite's urine contained tetrahydrocannabinol (THC). The screening used was not for the purpose of determining blood-THC concentration, and therefore lacked that information. Fite sued Mudd and Puyallup.

¶ 6 An eyewitness, Kelly Boutte, provided an initial sworn statement, stating that "[a]t no time did I see [Fite] stop. At no time did I see him look left. At no time did I see him look right." Clerk's Papers (CP) at 1153. She later amended her statement to read, "I do not recall if he looked r[igh]t or left one way or another." CP at 1294.

¶ 7 Fite moved for partial summary judgment. In Puyallup's response to Fite's motion for summary judgment, it argued Fite's intoxication was evidence of his comparative fault. Puyallup relied on the urine drug screening

and a later statement Fite made to his doctor that he was "high on [c]annabis while riding his skateboard" on the day of the accident. CP at 908. Fite replied that Puyallup's intoxication defense was factually unsupported and that Fite was fault free. The court granted Fite's motion for summary judgment dismissing the intoxication affirmative defense.

¶ 8 While Fite's comment to his doctor was part of the evidence provided by Puyallup in its response to Fite's motion, the court did not address the comment. In its summary judgment order, the court ruled that Puyallup was barred from presenting an intoxication defense under RCW 5.40.060. However, the court denied Fite's motion to establish that he had no comparative fault, and clarified Fite's legal duty, ruling "Fite was not specifically required to look right and look left before entering the crosswalk, only to look for approaching vehicles." CP at 1303.

¶ 9 Puyallup moved for reconsideration on its intoxication defense based in part on new expert witness testimony, which it submitted for the first time on reconsideration. The court again concluded that Puyallup had not provided evidence establishing when Fite had ingested marijuana or that Fite was experiencing any symptoms of THC intoxication at the time of the accident as required by RCW 5.40.060.

¶ 10 Fite later requested, and the court granted, a motion in limine to exclude all evidence of Fite's drug and alcohol use (that apparently included his statement to his doctor).

Puyallup also filed a motion in limine seeking to exclude two police reports—exhibits 48A and 48B—detailing two other accidents that had occurred in the crosswalk at issue. The court granted Puyallup's motion.

¶ 11 However, during Fite's cross-examination of a traffic detective with experience investigating pedestrian accidents, he asked whether the detective had studied the excluded police reports, asking "Have you ever had occasion to study all of the accident reports in the intersection of 5th and 31st that we've got here?" 14 Report of Proceedings (RP) (Nov. 20, 2019) at 2630. Fite questioned the detective further, asking:

Q. You don't know whether or not there'd been pedestrian accidents and how many there have been?

A. I can say that there have not been many and the reason I can say that is because I'm consulted very often on any kind of pedestrian accident because of my expertise.

Q. The true answer is, you don't know; is that right?

A. I cannot give you a number, absolutely.

Q. But you know there have been some?

A. I know there's been one. I don't know of the other ones.

Q. And you know that there have been some pedestrian accidents in that particular crosswalk, don't you?

A. I know of this one, sir.

Q. This one in this case?

A. This case.

Q. You don't know about any others?

A. None that come to mind, no.

RP (Nov. 20, 2019) at 2630-31. To counter this testimony, Fite offered exhibits 48A and 48B as business records. The court admitted the exhibits as business records over Puyallup's hearsay objection.

¶ 12 Exhibit 48A contained an investigation into a collision between two cars while stopped at a crosswalk. The report includes a determination of fault based on the officer's interviews with the drivers involved in the accident and a witness. No pedestrians were injured in the accident. Exhibit 48B described witness testimony that a bicyclist entered a roadway without looking, swerved in front of a car, and was hit. Fite relied on the incongruities between the traffic officer's testimony and the police reports in his closing arguments. He claimed that Puyallup attempted to hide the other accidents and that the traffic officer had tried to mislead the jury.

¶ 13 At trial, Puyallup requested the opportunity to impeach the eyewitness, Boutte, with her prior statement. The trial court prohibited Puyallup from impeaching Boutte, ruling that Boutte's prior statement conflicted with its summary judgment order that Fite did not have a duty to look left or right. Boutte testified at trial, stating "I did not see [Fite] stop before crossing the road." 11 RP at 1874.

¶ 14 During conferencing on the jury instructions, Fite requested an instruction that included that the jury should consider the "totality of the circumstances" when determining whether the crosswalk was safe. 17 RP at 3185. That language came from Xiao Ping Chen v. City of Seattle , 153 Wash. App. 890, 899-900, 223 P.3d 1230 (2009). Puyallup objected to that language and asserted that WPI 140.01¹ alone was the correct jury instruction. Instead, the court crafted instruction 28, which read:

Whether a roadway or crosswalk is reasonably safe for ordinary travel must be determined based on the "totality of the circumstances." A roadway or crosswalk can be unsafe for ordinary travel even when there is no violation of statutes, regulations or guidelines concerning roadways and crosswalks.

CP at 3190.

¶ 15 The jury awarded Fite approximately $6.5 million in damages and found Mudd was 33 percent at fault and Puyallup was 67 percent at fault for the accident. Puyallup appeals the liability verdict but not the damage award.²

ANALYSIS

I. INTOXICATION DEFENSE UNDER RCW 5.40.060

¶ 16 Puyallup argues that the trial court erred when it prohibited Puyallup from presenting a defense under RCW 5.40.060 by excluding evidence of Fite's intoxication. Fite argues that Puyallup failed to produce evidence that would satisfy RCW 5.40.060. We conclude that the...