Gould v. N. Kitsap Bus. Park Mgmt., LLC
| Decision Date | 19 January 2016 |
| Docket Number | No. 46358-0-II,46358-0-II |
| Parties | SUZETTE GOULD and JAMES GOULD, wife and husband, Respondents, v. NORTH KITSAP BUSINESS PARK MANAGEMENT, LLC, a Washington corporation, Appellant, NORTH KITSAP BUSINESS PARK, INC., a Washington corporation, Defendant. |
| Court | Washington Court of Appeals |
JOHANSON, C.J. — North Kitsap Business Park Management, LLC (North Kitsap) appeals from a judgment in James and Suzette Gould's favor for injuries Suzette1 sustained when she tripped over an object as she walked toward Paul and Suzanne Marshall's business. We hold that (1) North Kitsap waived its right to a jury trial, (2) the trial court did not abuse its discretion by considering Suzette's expert's testimony, (3) the trial court properly ordered North Kitsap to paysanctions for disclosing an expert late, and (4) substantial evidence supports each of the challenged findings of fact and the trial court's conclusions are supported by applicable law. We affirm.
In December 2009, Suzette's employer, Frontier Bank, instructed Suzette to visit two businesses owned by the Marshalls to spread Christmas cheer by visiting her clients and distributing Christmas cards. The Marshalls had outstanding commercial loans through Suzette's bank related to their businesses, DSC Industrial Supply and Road Rider Supply, which were both located at North Kitsap in adjacent suites. Suzette had been to DSC briefly once before and did not know the Marshalls socially, so in her view the visit would help to build their professional relationship.
Suzette arrived about midday and parked in front of DSC. She entered the business and spoke with Suzanne. While there, Suzette took a brief tour of the store and made a purchase. When Suzette asked about Suzanne's husband Paul, Suzanne said that Paul was working at Road Rider in the suite next door and invited her to go say hello.
Suzette left DSC, walked around a landscaping partition, saw Road Rider's awning and signage, and proceeded in a "beeline" for the front door. Report of Proceedings (RP) (Mar. 11, 2014) at 182. But before she reached the entry of Road Rider, Suzette "wound up on the ground," hitting her head on the door as she fell. RP (Mar. 11, 2014) at 182. Suzette had seen no obstruction in her pathway.
Suzette, embarrassed and uncertain what had happened, tried to pick herself up, but could not because she felt excruciating pain. She yelled for help and Paul came to her aid. Suzette hadtripped over a concrete "wheel stop" that had been installed directly in front of the door to Road Rider. Clerk's Papers (CP) at 590. Suzette suffered a broken arm and a dislocated elbow in the fall.
In April 2011, Suzette filed a lawsuit seeking damages against North Kitsap, alleging that North Kitsap was negligent because its wheel stop was not painted and did not contrast with the surrounding pavement outside Road Rider's main entry door.
The case was originally noted for a trial setting on February 10, 2012, but was delayed several times, ultimately setting the trial for October 7, 2013. On March 29, 2013, North Kitsap filed a motion requesting a jury trial. At the ensuing hearing, North Kitsap conceded that it had missed the deadline to request a jury trial, but urged the court to exercise its discretion to grant the motion notwithstanding North Kitsap's oversight. The trial court denied the motion, ruling that North Kitsap had not complied with the applicable court rule and concluded that mere oversight was not enough to compel the court to exercise its discretion otherwise.
Also before trial, each party moved in limine to exclude the expert testimony of the other. Suzette argued that Mark Uchimura's testimony should be excluded because North Kitsap failed to disclose him as their expert contrary to CR 26(e). In response, North Kitsap argued that it had disclosed its expert by the report it attached to its summary judgment motion combined with its agreement to continue the hearing date for the summary judgment motion upon Suzette's request. The trial court ruled that North Kitsap had failed to disclose its expert in the manner required by CR 26(e), and it imposed a financial sanction.
Meanwhile, North Kitsap moved to exclude the testimony of Stan Mitchell, Suzette's expert, arguing that Mitchell lacked the necessary credentials. As to that request, the trial court instructed North Kitsap to renew its objections contemporaneously with Mitchell's testimony.
The Marshalls, the Goulds, and their respective experts testified at trial. Of paramount importance was Mitchell's expert testimony. Mitchell, a professional architect, had an extensive amount of experience with construction management and planning, prepurchase home inspections, and consulting for property owners. Mitchell's business had also been engaged in at least some amount of forensic consulting work for 35 years at the time of trial. According to Mitchell, approximately 70 percent of his forensic consulting involved issues of pedestrian safety.
As a member of his profession, Mitchell maintains a working knowledge of building codes and standards. Mitchell's previous inspection work had included parking lot inspections. When asked about visual perception factors involved in architectural design, Mitchell stressed the importance of visibility in designs of structures intended for pedestrian use because pedestrians need to be able to see walking surfaces and transitions.
Mitchell conducted a site visit at the location of the incident and generated a report of his findings. The weather, the configuration of the two buildings, and what would be included in a pedestrian's "cone of vision" were all variables that Mitchell considered as he attempted to recreate Suzette's path. RP (Mar. 10, 2014) at 16. Mitchell described the wheel stop as approximately five feet out from the entry door, roughly five-and-a-half inches high, and a concrete gray color that blended in with the weathered asphalt.
Mitchell then explained how the conditions and the parking lot configuration would affect a pedestrian's ability to perceive the wheel stop from the path that Suzette would have taken. In Mitchell's view, it would have been very difficult to perceive the wheel stop because it was not painted an offset color, the parking lot sloped slightly, and the top edge of the wheel stop was below the building's siding, making it less visually prominent. According to Mitchell, the sun and shadows were also contributing factors on the day of the incident. Considering these features, Mitchell opined, over North Kitsap's foundation and relevance objection, that someone unfamiliar with the property, behaving normally, would not have perceived the wheel stop under the conditions as they were.
It was also Mitchell's opinion that Suzette would have been less likely to expect to encounter a wheel stop in front of Road Rider because she had just exited the adjacent suite, which had no such wheel stop in front of its door. Mitchell also discussed the applicable Kitsap County Code (KCC) provisions and determined that use of a wheel stop in such a position was not compliant with the code because the code calls for curbs or "bumper rail[s]." RP (Mar. 10, 2014) at 35. The question of compliance with the KCC was a highly-contested issue.
Suzette's husband James also testified. James was employed as a Federal Express courier and had delivered packages to the North Kitsap Business Park regularly for years at the time of the incident. Shortly after Suzette's surgery, James had a delivery for Suzanne. James testified that during a brief conversation with Suzanne that included questions about Suzette's recovery, James asked Suzanne whether they had ever considered moving or painting "the block." RP (Mar. 10, 2014) at 135. According to James, Suzanne responded that they had considered doing so because either she or Paul had tripped over "the block" too. RP (Mar. 10, 2014) at 135.
But the Marshalls denied ever having tripped over the wheel stop and Suzanne denied saying this to James. Furthermore, the Marshalls recalled speaking with Suzette moments after her fall. According to the Marshalls, Suzette said that she had not been paying attention when she fell and that she felt foolish because she was "looking up." RP (Mar. 12, 2014) at 272, 360. Suzette testified consistently with the background facts set forth above.
The trial court ruled in Suzette's favor. The court memorialized its ruling in detailed findings of fact and conclusions of law, the following of which relate to this appeal:
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