Geschwind v. Flanagan

• Decision Date: 15 July 1993
• Docket Number: No. 59300-1,59300-1
• Court: Washington Supreme Court
• Parties: Timothy J. GESCHWIND, Sr., Respondent, v. Michael FLANAGAN and Jane Doe Flanagan, husband and wife, and the marital community composed thereof; and Richard Roe Flanagan and Jane Doe Flanagan, husband and wife, and the marital community composed thereof; and Michael J. Flanagan as personal representative of the Estate of Timothy J. Flanagan, Jr., deceased, d/b/a Flanagan Woodworks, Defendants, and Jane Seymour, attorney, as personal representative of the Estate of Timothy J. Flanagan, Jr., deceased, Petitioner. En Banc

Page 833

121 Wn.2d 833

854 P.2d 1061

Timothy J. GESCHWIND, Sr., Respondent, v. Michael FLANAGAN and Jane Doe Flanagan, husband and wife, and the marital community composed thereof; and Richard Roe

Flanagan and Jane Doe Flanagan, husband and wife, and the

marital community composed thereof; and Michael J. Flanagan

as personal representative of the Estate of Timothy J.

Flanagan, Jr., deceased, d/b/a Flanagan Woodworks, Defendants,

and

Jane Seymour, attorney, as personal representative of the

Estate of Timothy J. Flanagan, Jr., deceased, Petitioner.

No. 59300-1

Supreme Court of Washington,

En Banc.

July 15, 1993.

Simonarson, Visser, Zender & Thurston, Hal Thurston, Bellingham, for petitioner.

Lewis, Evens & Nielsen, Wm. H. Nielsen, La Conner, K.R. St. Clair, Mount Vernon, Lawrence L. Shafer, Langley, Maltman, Weber, Reed, North & Ahrens, Douglass A. North, Douglas W. Ahrens, Seattle, for respondent.

Timothy R. Gosselin, Tacoma, amicus curiae for petitioner.

Gary N. Bloom, Bryan P. Harnetiaux, Mary Beth Nethercutt, Spokane, amicus curiae for respondent on behalf of Washington State Trial Lawyers Ass'n.

DURHAM, Justice.

On the evening of Friday, October 26, 1984, Timothy Geschwind was a passenger in a truck driven by Timothy Flanagan. At approximately 12:55 a.m. on the morning of October 27, Flanagan drove his truck off the road, killing himself and injuring Geschwind. Both men were significantly intoxicated. In a subsequent action brought by Geschwind to recover damages for his injuries, a jury found him to be 70 percent at fault for his own injuries. Pursuant to RCW 5.40.060, which prohibits recovery by an intoxicated plaintiff if the intoxication was a proximate cause of the injuries and the plaintiff is more than 50 percent at fault, Geschwind was denied recovery, and the defendant was awarded judgment. We are asked to answer two distinct questions: (1) can a negligent passenger ever be more at fault for his or her injuries than a negligent driver? and (2) does RCW 5.40.060 prohibit recovery to an intoxicated passenger when the intoxication was a proximate cause of his or her injuries, and the passenger is found to be more than 50 percent at fault for those injuries? We answer both questions in the affirmative.

The facts of this case follow a pattern which, despite the best efforts of the citizens, courts and Legislature of this state, remains all too commonplace. On the evening in question, Geschwind and Flanagan planned to "go out and party, and ... get a little buzzed." Report of Proceedings (RP) vol. 5, at 15. With Flanagan driving, they drank a number of beers while on Whidbey Island, and then caught the 8:30 p.m. ferry to Everett. After arriving in Everett, they stopped in one tavern where they had another beer or two, then continued on to a bar, where Geschwind had at least two potent mixed drinks. They ended their drinking at a third bar, where Geschwind recalled having a beer and a shot. Although Geschwind was not monitoring Flanagan's alcohol intake, he believed that Flanagan was drinking about the same amount.

While pulling out of his parking space at the last bar, Flanagan bumped the cars in front of him and behind him. Geschwind then asked his friend if he (Geschwind) should drive, but Flanagan declined the offer. Geschwind believed Flanagan's driving was passable once Flanagan was on the main road, and Geschwind dozed off in the passenger seat. Subsequently, Flanagan drove off the road and crashed into a telephone pole. Flanagan's blood alcohol content (BAC) at the time of the accident was .38; Geschwind's BAC was .17. ¹

At trial, Geschwind admitted that both of them planned to "get buzzed." RP vol. 5, at 14-15. Geschwind defined being "buzzed" as any point before being falling-down drunk. He also testified that he considered it safe to drive with "somebody who's got a buzz on, so long as they're not falling down drunk[.]" RP vol. 5, at 16. Geschwind admitted that although he thought that Flanagan was "over-buzzed", he voluntarily chose to stay in the truck rather than get out in an area that he did not know.

The trial judge instructed the jury on the issue of contributory negligence as follows:

If you find that the plaintiff was the passenger and that he voluntarily rode in the truck after he knew, or in the exercise of ordinary care should have known, the driver's condition, and if you also find that a person using ordinary care would not have ridden in the truck, and if you further find that the driver's condition was a proximate cause of plaintiff's injury or damages, you will find plaintiff contributorily negligent.

Defendant's Clerk's Papers (DCP), at 22. The jury was also instructed as to the effect of RCW 5.40.060, which prohibits recovery if the plaintiff was intoxicated, the intoxication was a proximate cause of the injuries, and the plaintiff was more than 50 percent at fault. The jury returned an answer in a special verdict form ² which attributed 70 percent of the fault for his injuries to Geschwind himself. The jury also found that Geschwind's intoxication was a proximate cause of his injury. Pursuant to RCW 5.40.060, judgment was entered for the defendant.

On appeal, the Court of Appeals reversed and remanded for a new trial. Accepting Geschwind's argument that a passenger cannot legally be responsible for more than 50 percent of his or her injuries, the court stated that "[w]hile the jury apparently found appellant highly culpable, it should not have been permitted to find him more culpable than the intoxicated driver who had the primary responsibility for reasonably safe operation of the vehicle." Geschwind v. Flanagan, 65 Wash.App. 207, 214, 828 P.2d 603 (1992). This court accepted the petition for review. ³

Generally, the issue of contributory negligence is one for the jury. Young v. Caravan Corp., 99 Wash.2d 655, 661, 663 P.2d 834, 672 P.2d 1267 (1983). The jury found Geschwind 70 percent at fault for his own injuries. The Court of Appeals reversed on the theory that a passenger can never, as a matter of law, be liable for more than 50 percent of his or her injuries. This raises an issue of first impression.

In 1981, Washington adopted contributory fault as a method of apportioning damages as between a negligent plaintiff and a negligent defendant. Laws of 1981, ch. 27, § 8, p. 117, codified at RCW 4.22.005. "Fault" is defined as including "unreasonable assumption of risk, and unreasonable failure to avoid an injury...." ⁴ RCW 4.22.015. The determination of the percentage of total fault attributable to each party, "including the claimant or person suffering personal injury", is specifically reserved for the trier of fact. Former RCW 4.22.070.

The courts of this state have long held that a passenger may be found to be contributorily negligent by voluntarily riding in a car with a driver who he or she knows, or reasonably should know, is intoxicated. Traverso v. Pupo, 51 Wash.2d 149, 152-53, 316 P.2d 462 (1957); Morse v. Frank, 1 Wash.App. 871, 873, 466 P.2d 166 (1970). See also WPI 12.01.01 (can find plaintiff contributorily negligent if driver intoxicated, plaintiff knew, or should have known, of driver's condition, person of ordinary care would not have ridden in car, and driver's condition is a proximate cause of plaintiff's injury.) Prior to the adoption of the comparative fault statute, a plaintiff's contributory negligence acted as a complete bar to recovery, regardless of the percentage of fault. E.g., Morse, 1 Wash.App. at 873, 466 P.2d 166.

The Court of Appeals concluded that there could be no distinction between causation of the "injuries" and causation of the "accident", because "all of appellant's injuries resulted from a single accident." Geschwind, 65 Wash.App. at 213, 828 P.2d 603. This reasoning misunderstands the nature of contributory negligence. "A plaintiff's negligence relates to a failure to use due care for his own protection whereas a defendant's negligence relates to a failure to use due care for the safety of others." Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 238, 588 P.2d 1308 (1978). Accord Taylor v. Taug, 17 Wash.2d 533, 540, 136 P.2d 176 (1943); Murray v. Amrine, 28 Wash.App. 650, 656, 626 P.2d 24 (1981). See also W. Page Keeton et al., Prosser and Keeton on Torts § 65, at 451 (5th ed. 1984) ("Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection.").

We recognize that it may seem inconsistent to allow a passenger to be held more at fault for his or her injuries than a negligent driver. However, when a person has voluntarily engaged in behavior which increases the risk of injury, he or she may be held to be predominantly liable for the injuries occurring as a result thereof. Shorter v. Drury, 103 Wash.2d 645, 695 P.2d 116, cert. denied, 474 U.S. 827, 106 S.Ct. 86, 88 L.Ed.2d 70 (1985) provides an illustration of this principle. In Shorter, a woman and her husband, both Jehovah's Witnesses, signed a release absolving a doctor from responsibility for any untoward results due to the wife's refusal to accept blood transfusions for religious reasons. The doctor negligently performed the operation and the wife bled to death as a result of both her injuries and her refusal to accept a transfusion. On a jury verdict for the plaintiff husband, the jury reduced the plaintiff's wrongful death damages by 75 percent based on the husband's and wife's assumption of the risk. Shorter, 103 Wash. at 647, 695 P.2d 116. This court upheld that verdict. Shorter, at 659, 695 P.2d 116. Although that case involved express assumption of the risk, which is not subsumed by contributory negligence, Shorter, at 656, 695 P.2d 116, the principle that a plaintiff who did not directly "cause" the accident may still be held more liable for his or her injuries than the...