Helmbreck v. McPhee

• Decision Date: 14 September 2020
• Docket Number: No. 79933-9-I,79933-9-I
• Citation: 15 Wash.App.2d 41,476 P.3d 589
• Court: Washington Court of Appeals
• Parties: Justin HELMBRECK, Appellant, v. Paula MCPHEE and John Doe McPhee, wife and husband and the marital community composed thereof; Laura Elliott and John Doe Elliott, wife and husband and the marital community composed thereof; and the City of Des Moines, Washington, a municipal corporation, Respondents.

15 Wash.App.2d 41

476 P.3d 589

Justin HELMBRECK, Appellant,

v.Paula MCPHEE and John Doe McPhee, wife and husband and the marital community composed thereof; Laura Elliott and John Doe Elliott, wife and husband and the marital community composed thereof; and the City of Des Moines, Washington, a municipal corporation, Respondents.

No. 79933-9-I

Court of Appeals of Washington, Division 1.

FILED September 14, 2020

Ordered Published Date November 18, 2020

Brian Paul Russell, Attorney at Law, 17820 1st Ave. S Ste. 102, Burien, WA, 98148-1794, for Appellant.

George Allen Mix, Colton Arias, Jackie Leanne Jensen, Mix Sanders Thompson, PLLC, 1420 5th Ave. Ste. 2200, Seattle, Eden Esther Goldman, Richard Scott Fallon, Fallon McKinley PLLC, 155 Ne 100th St. Ste. 401, Seattle, WA, 98125-8010WA, 98101-1346, Adam Rosenberg, Williams Kastner & Gibbs PLLC, 601 Union St. Ste. 4100, Seattle, WA, 98101-1368, Robert William Novasky, Forsberg & Umlauf, P.S., 1102 Broadway Ste. 510, Tacoma, WA, 98402-3534, for Respondents.

PUBLISHED OPINION

Appelwick, J. ¶ 1 Helmbreck sued Elliott, McPhee, and the City for negligence based on injuries he suffered in a motor vehicle accident in Des Moines. He appeals summary judgment dismissal of his claim against the City and multiple rulings from the trial court on his remaining claims. He argues that the trial court erred in granting the City's motion for summary judgment. He contends that there was evidence indicating the City had constructive notice that the vegetation on McPhee's property constituted a dangerous condition. Alternatively, he argues such evidence was not required. Further, he asserts that the court erred at trial in limiting his cross-examination of McPhee. He also contends that it erred in instructing the jury on his failure to mitigate damages and a property owner's duty not to create conditions that make an adjacent roadway unsafe for travel. Last, he argues that the court should have granted his motions for a mistrial based on errors during voir dire and opening arguments. We affirm.

FACTS

¶ 2 On June 7, 2015 at approximately 1:00 p.m., Justin Helmbreck was driving eastbound on South 212th Street in Des Moines, approaching the intersection of South 212th Street and 1st Place South. Laura Elliott was driving northbound on 1st Place South, approaching the same intersection.

The intersection was not controlled by any traffic lights, stop signs, or yield signs. Helmbreck understood he had a duty to yield to the traffic coming northbound on 1st Place South.

¶ 3 As he approached the intersection, Helmbreck slowed his vehicle and looked north and south for oncoming cars. When he looked to the south, his right, he claimed he could not see down the street due to a hedge. As a result, he drove his vehicle past the hedge and looked to his right again. At that point, he saw Elliott's vehicle and the two collided.

¶ 4 Paula McPhee owns the residence at the southwest corner of South 212th Street and 1st Place South. The foliage that Helmbreck claimed prevented him from seeing down the street is in her yard. According to R. Brandon Carver, the public works director for the city of Des Moines (City), the City had never received a complaint about visibility or road conditions at South 212th Street and 1st Place South prior to Helmbreck's and McPhee's accident. The Des Moines Municipal Code (DMMC) requires property owners of corner lots and reverse corner lots to maintain a triangular area at the corner of their property next to the street in which "no tree, fence, shrub, or other physical obstruction higher than 42 inches above the established grade" is permitted. DMMC 18.190.170. The City had also never received a complaint about a potential violation of this provision before the accident.

¶ 5 In May 2018, Helmbreck sued McPhee, Elliott, and the City for negligence. He alleged that McPhee was "negligent in ... failing to take reasonable precautions to protect drivers using the adjacent streets from foreseeable harm caused by their failure to remove any landscaping and vegetation that interferes with the sight and views of drivers using the adjacent roadways." He further alleged that Elliott "negligently operated her vehicle when her vehicle" struck his. And, he alleged that the City "was negligent in failing to design, construct and maintain safe roadways at the intersection where the collision occurred."

Due to these negligent acts, he claimed that he "sustained serious injuries, disability, emotional distress and pain, loss of enjoyment of life, and other damages." He argued in part that his injuries from the collision required him to have back surgery in December 2016.

¶ 6 In November 2018, the City filed a motion for summary judgment asking the trial court to dismiss all of Helmbreck's claims against it. It argued in part that it had no notice of any visibility hazard. Without (1) evidence of prior actual notice of any hazard or (2) evidence that City employees should have seen the vegetation at issue, it asserted that it could not be held liable for negligence. Helmbreck opposed the motion, implying that the City had constructive notice because the vegetation on McPhee's property existed from 2008 to June 2015. The court granted the City's motion. Helmbreck then filed a motion for reconsideration, which the court denied. It explained in part,

The undisputed evidence at the motion for summary judgment was that the vegetation at the McPhee residence changed over time, depending on how quickly the shrubs grew and how often or extensively they were trimmed. There is simply no evidence beyond speculation and conjecture that the City had notice of the allegedly dangerous condition and a reasonable opportunity to correct it before the Helmbreck/McPhee accident.

¶ 7 The case proceeded to trial on Helmbreck's claims against McPhee and Elliott. After voir dire questioning, Helmbreck moved for a mistrial. He argued that the jury became biased against him after the trial court prevented him from asking jurors about the preponderance of the evidence standard. The court denied his motion. Helmbreck moved for another mistrial after opening arguments. He asserted that by "bringing up partying" in their opening arguments, McPhee and Elliott violated the trial court's order on his motion in limine excluding evidence of alcohol consumption. The court denied his motion, but clarified that there should be no use of the word "party" going forward.

¶ 8 Later at trial, McPhee testified that a photo of the vegetation on her property represented what the vegetation looks like in June. During cross-examination, Helmbreck asked her when the photo was taken. She responded that she did not know the year, but that it was taken during the summer months. Helmbreck then asked her if the City came out and "cut the vegetation along South 212th Street" on her property. McPhee objected. She argued that it would be prejudicial to allow evidence of what the City did in response to the accident, and that the response was "a subsequent remedial measure." Helmbreck countered that the photo showed the vines on McPhee's property "after they were trimmed by the City" in 2018, and that she opened the door to his question by introducing the photo. The trial court ruled that Helmbreck could ask McPhee about any changes to the vegetation, but could not ask about any remedial action by the City.

¶ 9 At the close of evidence, Helmbreck objected to several jury instructions. He had proposed an instruction on a property owner's "additional duty to inspect for dangerous conditions." The trial court declined to give that instruction. Over his objection, it instructed the jury that a property owner has a duty only to "exercise ordinary care in connection with the use of the property so as not to make, or create conditions that make, the adjacent way unsafe for ordinary travel or to cause injury to persons using the public road." Helmbreck also argued that there was insufficient evidence to support an instruction on his failure to mitigate damages. The court issued a mitigation instruction over his objection.

¶ 10 A jury found that Helmbreck suffered $29,000.00 in damages. It further found that he was 85 percent at fault for his injuries, Elliott was 15 percent at fault, and McPhee was not at fault. Because Helmbreck declined a $20,000.00 offer of judgment Elliott made before trial, the court awarded Elliott $5,539.07 in costs against Helmbreck. This amount exceeded Helmbreck's trial award against her by $1,189.07. Thus, the court entered a $1,189.07 judgment for Elliott. The court also found that McPhee was entitled to judgment with prejudice and costs against Helmbreck. It ordered that judgment be entered for her in the amount of $2,301.28.¹

¶ 11 Helmbreck appeals.

DISCUSSION

¶ 12 Helmbreck makes four main arguments. First, he argues that the trial court erred in granting the City's motion for summary judgment. Second, he argues that the court erred in limiting his cross-examination of McPhee. Third, he argues that the court erred in instructing the jury on his failure to mitigate damages and a property owner's duty not to create conditions that make an adjacent roadway unsafe for travel. Fourth, he argues that the court should have granted his motions for a mistrial based on errors during voir dire and opening arguments.

I. Summary Judgment Motion

¶ 13 Helmbreck argues first that the trial court erred in granting the City's motion for summary judgment. He asserts that there was evidence indicating the City had constructive notice that the vegetation on McPhee's property constituted a dangerous condition. Alternatively, he argues that such notice was not required because the City had a duty to anticipate a dangerous condition on its street.

¶ 14 We review summary judgment orders de novo. Hadley v. Maxwell, 144 Wash.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate only where there are no genuine issues of material fact and the moving...