Hammel v. Rife, 10975-8-I

• Decision Date: 21 May 1984
• Docket Number: No. 10975-8-I,10975-8-I
• Citation: 37 Wn.App. 577,682 P.2d 949
• Parties: Steven H. HAMMEL, Appellant, v. Dale C. RIFE and Kathleen Rife, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 577

37 Wn.App. 577

682 P.2d 949

Steven H. HAMMEL, Appellant, v. Dale C. RIFE and Kathleen Rife, husband and wife, Respondents.

No. 10975-8-I.

Court of Appeals of Washington,

Division 1.

May 21, 1984.

Review Denied Sept. 7, 1984.

Norman & Loreen, Maryalice Norman, Seattle, for appellant.

Betts, Patterson & Mines, P.S., William P. Fite, Ingrid W. Hansen, Seattle, for respondents.

ANDERSEN, Judge.

FACTS OF CASE

This appeal follows a defense verdict in a personal injury action arising out of a motorcycle-truck collision on one of Seattle's main arterial streets.

The motorcyclist was northbound on the arterial and the truck, which had been proceeding southbound, made a left turn across three northbound lanes into a driveway and was struck by the motorcycle before the truck cleared the northbound lanes. The motorcyclist as plaintiff sued the truck driver. ¹ The jury returned a verdict for the defendant. A special verdict to the jury asked the question, "Was the defendant negligent?", and to this the jury responded, "No."

Plaintiff's motion for a new trial was denied, judgment dismissing the action was entered and the plaintiff brings this appeal.

The appeal is based on an agreed report of proceedings, approved by both counsel and the trial judge, and entered pursuant to RAP 9.4. In such a case, we will not on

appeal consider matters not included in the agreed report of proceedings. In re Estate of Shoptaw, 54 Wash.2d 602, 604, 343 P.2d 740 (1959). While that document is less than a model of clarity concerning the facts of the accident, the following facts reasonably appear therefrom.

1. The accident occurred on 15th Avenue West, a north-south arterial street in Seattle having three lanes in each direction with a center left turn lane.

2. The plaintiff motorcyclist was northbound and, before the truck driven by the defendant began its left turn, it had been southbound.

3. Between intersections, the defendant pulled into the center left turn lane preparatory to making a left turn into a driveway.

4. At the time the defendant commenced her left turn, approaching northbound traffic was stopped for a red light at the next intersection south, the Garfield Street intersection. It is not clear from the agreed report of proceedings if the plaintiff's motorcycle was stopped in such position as to be visible to the defendant, but if not it was behind a stopped vehicle that was visible to the defendant. The intersection was 240 feet south of the defendant's truck. The vehicles stopped at the traffic light to the south of the defendant's left turning truck, including the plaintiff's motorcycle, were all at least 240 feet plus the width of the Garfield Street intersection from the truck at the time it started its left turn.

5. After the defendant started to turn left, the vehicles behind the red light at the Garfield Street intersection (which was now to the defendant's right) started toward her. Apparently this was because the traffic light at the Garfield Street intersection turned green for the northbound vehicles, but in any event the vehicles that had been stopped did proceed north through the intersection toward the left turning truck.

6. At that time the plaintiff on his motorcycle pulled out to the right of the northbound traffic into the curb lane, accelerated past the automobiles and proceeded without 7. Nothing indicates or suggests other than that the arterial was straight and that the parties had the opportunity for a clear, unobstructed view of each other once the plaintiff came through the intersection.

swerving straight to the point of impact with the right rear corner of the defendant's truck which had not cleared the arterial at the time of the collision. The point of impact was in the northbound curb lane.

8. The only eyewitnesses to testify at the trial were the defendant and her passenger. The plaintiff sustained brain damage in the collision and as a consequence had no memory of it.

9. Conflicting expert testimony was presented from which the jury could determine that the defendant either was or was not speeding. ²

There are two principal issues in this case.

ISSUES

ISSUE ONE. Did the trial court err in instructing the jury on right of way?

ISSUE TWO. Did the trial court err in refusing to admit evidence of the plaintiff's prior good driving record?

DECISION

ISSUE ONE.

CONCLUSION. In this case involving a truck making a midblock left turn in front of an approaching motorcycle, the trial court in instructing on right of way erred when, under the facts presented, it instructed the jury on deception.

The following instruction on right of way involving left turning vehicles was given to the jury:

A statute provides that a driver intending to turn to the left into a driveway shall yield the right of way to any vehicle approaching from the opposite direction which is so close as to constitute an immediate hazard. This right of way, however, is not absolute but relative, and the duty to exercise ordinary care to avoid collisions rests upon both drivers. The primary duty, however, rests upon the driver turning to the left, which duty must be performed with reasonable regard to the maintenance of a fair margin of safety at all times.

If the oncoming driver wrongfully, negligently, or unlawfully operates the vehicle in such a manner that it would deceive a reasonably careful driver making the left turn, so as to cause that driver to proceed forward on the assumption that there was a fair margin of safety, and if the driver turning left is in fact so deceived, then the right of way rule would not apply in favor of the oncoming driver.

(Emphasis supplied.) Instruction 6.

This instruction basically uses the language of the recommended pattern jury instruction, WPI 70.02.01. Neither party contends that it does not accurately state the law. Both parties proposed that the first paragraph of the instruction be given. The defendant alone proposed that the second paragraph (above emphasized) also be given, and the plaintiff excepted thereto. It is this second paragraph which states the deception doctrine. As to that, the "Note on Use" of the instruction by the Washington Supreme Court Committee on Jury Instructions observes that the paragraph on deception should be used "only if the evidence in the case warrants it." 6 Wash.Prac. 292 (1980). In the case before us, the evidence did not warrant it. ³

At the outset, it must be kept in mind that the deception doctrine developed in order to cushion the harsh effects of the negligence per se doctrine as applied to collisions resulting from left turns at or between intersections. As such, the doctrine is applicable only where the favored driver has by some wrongful driving conduct deceived a reasonably prudent disfavored driver into believing that he or she can make a left turn with a fair margin of safety. Chapman v. Claxton, 6 Wash.App. 852, 856, 497 P.2d 192 (1972). The doctrine is limited to those situations where the favored driver's deception is "tantamount to an entrapment, a deception of such marked character as to lure a reasonably prudent driver to the illusion that he has a fair margin of safety in proceeding", Mondor v. Rhoades, 63 Wash.2d 159, 167, 385 P.2d 722 (1963). See Chapman, 6 Wash.App. at 857, 497 P.2d 192.

In Oliver v. Harvey, 31 Wash.App. 279, 283-84, 640 P.2d 1087, review denied, 97 Wash.2d 1020 (1982), we recently summarized the factual situations in which the deception doctrine may be applied:

The "deception doctrine" has been applied in two distinct situations. First, it applies when

the disfavored driver sees the favored vehicle and is deceived by the actions of the driver of that vehicle.... One cannot be deceived by that which he does not see.... And, if one sees the favored vehicle only an instant before the collision, there is, again, no deception in the legal sense.

(Citations omitted. Italics ours.) Tobias v. Rainwater, 71 Wash.2d 845, 853, 431 P.2d 156 (1967). The doctrine does not apply "in cases where the disfavored driver did not look ..., or where he looked but did not see what was obviously there to be seen." Bockstruck v. Jones, 60 Wash.2d 679, 682, 374 P.2d 996 (1962).

Second, a disfavored driver may be deceived by a clear stretch of road. Bockstruck, at 682 . This aspect of the deception doctrine applies when

the disfavored driver, consistent with the primary duty of caution resting upon him, and consistent with the physical surroundings, carefully looked from a point of appreciable observation and could not see a negligently operated favored vehicle because of a physical obstruction upon or about the roadway. Entrapment of the disfavored driver is thus predicated upon two circumstances: (a) The favored driver's negligent operation, and (b) the concealment thereof from prudent view by an obstruction.

(Italics ours.) Ward v. Zeugner, 64 Wash.2d 570, 573, 392 P.2d 811 (1964).

Examining the facts of the case at bench in light of the situations posited in Oliver, we can perceive of no way that the "deception doctrine" could apply in this case.

It is true that the defendant saw the plaintiff before the collision, although under the parties' stipulation it is not precisely clear just how far away he was when she first observed him. If she saw him "only an instant before the collision, there is, again, no deception in the legal sense." Tobias v. Rainwater, 71 Wash.2d 845, 853, 431 P.2d 156 (1967), as quoted in Oliver. Even assuming that the defendant driver saw the plaintiff as soon as he passed the vehicles proceeding into the Garfield Street intersection or just thereafter, and that the plaintiff was speeding, "excessive speed alone on the part of the favored driver is not sufficient, in and of itself, to justify the submission to the jury of the issue of deception." Tobias, 71 Wash.2d at 853, 431 P.2d 156.

Nor can the "clear stretch of road" aspect of the deception doctrine, see Oliver, be...