Gerlach v. Cove Apartments, LLC

• Decision Date: 27 August 2020
• Docket Number: NO. 97325-3,97325-3
• Citation: 196 Wash.2d 111,471 P.3d 181
• Court: Washington Supreme Court
• Parties: Kimberly J. GERLACH, individually, Petitioner, v. The COVE APARTMENTS, LLC, a Washington corporation; and Weidner Property Management, LLC, a Washington corporation, Respondents, and Weidner Apartment Homes, a Washington business entity, d/b/a The Cove Apartments, and Weidner Asset Management LLC, a Washington corporation, Defendants.

196 Wash.2d 111

471 P.3d 181

Kimberly J. GERLACH, individually, Petitioner,

v. The COVE APARTMENTS, LLC, a Washington corporation; and Weidner Property Management, LLC, a Washington corporation, Respondents,andWeidner Apartment Homes, a Washington business entity, d/b/a The Cove Apartments, and Weidner Asset Management LLC, a Washington corporation, Defendants.

NO. 97325-3

Supreme Court of Washington.

Argued February 20, 2020

Filed: August 27, 2020

Benjamin Franklin Barcus, 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, Simon Henri Forgette, Attorney at Law, 406 Market St. Ste. A, Kirkland, WA, 98033-6135, for Petitioner.

Pauline Victoria Smetka, Aimee Muul, Helsell Fetterman LLP, 1001 4th Ave. Ste. 4200, Seattle, WA, 98154-1154, Philip Albert Talmadge, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, for Respondents.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., 801 2nd Ave. Ste. 1210, Seattle, WA, 98104-3175, for Amicus Curiae Washington Cities Insurance Authority.

Christopher Thomas Benis, Hecker, Wakefield & Feilberg, PS, 321 1st Ave. W., Seattle, WA, 98119-4103, for Amicus Curiae Rental Housing Association of America.

Patrick G. McMahon, Attorney at Law, Po Box 2965, Wenatchee, WA, 98807-2965, for Amicus Curiae Washington Counties Risk Pool.

Sidney Charlotte Tribe, Scott Roberts Weaver, Carney Badley Spellman, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, for Amicus Curiae Washington Multi-Family Housing Association.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302, for Amicus Curiae Washington State Association for Justice Foundation.

STEPHENS, C.J.

¶ 1 After a night of drinking with friends, Kimberly Gerlach fell from the second-story balcony of her boyfriend's unit at the Cove Apartments when the decayed balcony railing gave way. Gerlach sued, arguing Cove's failure to repair the railing caused her fall and violated Cove's duties to tenants and their guests. A jury agreed and found Cove was 93 percent at fault for Gerlach's injuries. The Court of Appeals overturned this verdict and remanded for a new trial, reasoning the trial court erred by excluding evidence of Gerlach's blood alcohol concentration (BAC) and by not dismissing Gerlach's statutory claim under the Residential Landlord-Tenant Act of 1973 (RLTA), ch. 59.18 RCW.

¶ 2 We reverse the Court of Appeals. The trial court did not abuse its discretion by excluding BAC evidence that was only minimally relevant to Cove's affirmative defense and risked prejudicing the jury against Gerlach. While we agree that the trial court should not have allowed Gerlach's RLTA claim, this error alone does not justify a new trial because the jury's verdict remains valid as to Gerlach's common law claim. Accordingly, we reinstate the verdict in favor of Gerlach.

FACTS

¶ 3 One evening in October 2012, Gerlach went to a birthday party with her boyfriend, Nathan Miller, and their friends, Brodie and Colin Liddell.¹ After the party, the four friends went out to a bar. When the bar closed for the night, Gerlach and Brodie made their way back to Miller's unit at the Cove Apartments while Miller and Colin went to a convenience store. As Gerlach headed up toward Miller's second-story apartment, Brodie stayed outside to smoke.

¶ 4 A short time later, Brodie heard a sharp snap and turned to see Gerlach plummeting headfirst from the balcony of Miller's apartment onto the concrete steps below. The decayed balcony railing fell beside her. Brodie called 911 and checked Gerlach's vital signs. Miller and Colin arrived while paramedics were en route.

¶ 5 The parties dispute how Gerlach fell. Gerlach argued at trial that she was standing on the balcony and leaning on the railing when it gave way, while Cove argues Gerlach likely fell while trying to climb over the railing onto the balcony. But no one actually saw Gerlach fall, and Gerlach herself has no recollection of that evening.

¶ 6 Either way, Gerlach was unconscious and unresponsive when paramedics arrived.

King County Medic One rushed her to Harborview Medical Center, where Gerlach was admitted with a traumatic brain injury, skull fractures, and cerebral hemorrhaging that required surgery. Harborview also conducted a blood test less than an hour after Gerlach fell, which showed her BAC was approximately 0.219.

PROCEDURAL HISTORY

¶ 7 Gerlach sued Cove Apartments for negligently causing her injuries, arguing Cove's failure to repair the decayed railing violated its common law duties to tenants and their guests, its duties as a landlord under the RLTA, and its duties under its lease agreement with Gerlach's boyfriend. Cove moved for summary judgment on the second and third claims, arguing Gerlach could not prevail because she was not Cove's tenant. The trial court agreed and granted summary judgment for Cove on Gerlach's claim under the lease, but ruled Gerlach could recover under the RLTA despite not being a tenant. Gerlach's RLTA and common law claims went to trial.

¶ 8 At trial, Cove claimed the "complete defense to an action for damages for personal injury" available under RCW 5.40.060 when "the person injured ... was [ (1) ] under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury ... and [ (2) ] that such condition was a proximate cause of the injury ... and [ (3) ] the trier of fact finds such person to have been more than fifty percent at fault." RCW 5.40.060(1). To support this defense, Cove sought to offer into evidence the results of the blood test taken by Harborview showing Gerlach's BAC was approximately 0.219, as well as expert testimony relating to those results.²

¶ 9 Gerlach moved to exclude the blood test results and related testimony under Evidentiary Rule (ER) 403, arguing the probative value of that evidence was substantially outweighed by the danger of unfair prejudice. The trial court was initially inclined to admit that evidence but decided to exclude it after Gerlach admitted the fact of her intoxication.³ The trial court also excluded the testimony of Dr. Thomas Wickizer, a health economist who would have challenged Gerlach's claimed medical expenses, because his testimony would not have helped the jury to determine whether those expenses were reasonable.

¶ 10 The jury found both Cove and Gerlach negligently contributed to Gerlach's injuries, with Cove bearing 93 percent of the fault and Gerlach bearing 7 percent. Without objection from either party, the jury used a verdict form that did not distinguish between negligence premised on Cove's common law duties and negligence premised on Cove's duties under the RLTA. Cove appealed, assigning error to the trial court's denial of summary judgment on Gerlach's RLTA claims, its exclusion of the BAC evidence and related testimony, nearly a dozen jury instructions or proposed instructions, and other issues.

¶ 11 The Court of Appeals reversed and remanded for a new trial. Relevant to our review, the Court of Appeals held the trial court abused its discretion by excluding the BAC evidence and related expert testimony and this error was prejudicial to Cove's ability to present its defense. Gerlach v. Cove Apts., LLC , 8 Wash. App. 2d 813, 817, 446 P.3d 624 (2019). The Court of Appeals also concluded the trial court erred by denying Cove's motion for summary judgment on Gerlach's RLTA claims and by instructing the jury that Cove owed Gerlach a duty under the RLTA, because "Washington has adopted § 17.6 [of the Restatement (Second) of Property: Landlord and Tenant (Am. Law Inst. 1977) ] only in cases where a landlord's negligence is alleged by a tenant." Id. at 832-33, 446 P.3d 624. Without further analysis, the Court of Appeals declined to extend Washington's adoption of § 17.6 to tenants’ guests.

¶ 12 Gerlach petitioned this court for review, which we granted.⁴ Gerlach v. Cove Apts., 193 Wash.2d 1037, 449 P.3d 657 (2019).

ANALYSIS

¶ 13 This case centers on two decisions made by the trial court: one about whether to admit evidence and one about the meaning of the RLTA. We review the evidentiary decision for abuse of discretion, deferring to the trial court's judgment unless we are "convinced that ‘no reasonable person would take the view adopted by the trial court.’ " Gilmore v. Jefferson County Pub. Transp. Benefit Area , 190 Wash.2d 483, 495, 415 P.3d 212 (2018) (internal quotation marks omitted) (reinstating verdict overturned by Court of Appeals because trial court had excluded expert testimony (quoting State v. Salgado-Mendoza , 189 Wash.2d 420, 427, 403 P.3d 45 (2017) )). In contrast, we give no deference to the trial court's interpretation of the RLTA. See Dep't of Ecology v. Campbell & Gwinn, L.L.C. , 146 Wash.2d 1, 9, 43 P.3d 4 (2002) ("The meaning of a statute is a question of law reviewed de novo." (citing State v. Breazeale , 144 Wash.2d 829, 837, 31 P.3d 1155 (2001), overruled in part on other grounds by State v. Barber , 170 Wash.2d 854, 248 P.3d 494 (2011) )).

I. The Trial Court Did Not Abuse Its Discretion by Excluding the Results of Gerlach's Hospital Blood Draw and Related Expert Testimony

¶ 14 Cove argues the trial court abused its discretion by excluding from evidence the BAC results of Gerlach's blood work at Harborview and related expert testimony, which Cove claims would have shown Gerlach's intoxication made her more than 50 percent at fault for her injuries. The Court of Appeals agreed. Gerlach counters that the trial court acted within its discretion under ER 403 because that evidence would have been far more unfairly prejudicial to Gerlach than probative of Cove's affirmative defense. Because the trial court's decision was within the bounds of its considerable discretion, we...