Henderson v. Tyrrell

• Decision Date: 15 February 1996
• Docket Number: No. 14211-6-III,14211-6-III
• Citation: 910 P.2d 522,80 Wn.App. 592
• Court: Washington Court of Appeals
• Parties: Dolores L. HENDERSON, a single woman; Daren K. Henderson, a single man; and Dwight K. Henderson, a single man, Appellants, v. Steven D. TYRRELL, a single person, Respondent.

Page 592

80 Wn.App. 592

910 P.2d 522

Dolores L. HENDERSON, a single woman; Daren K. Henderson, a single man; and Dwight K. Henderson, a single man, Appellants, v. Steven D. TYRRELL, a single person, Respondent.

No. 14211-6-III.

Court of Appeals of Washington,

Division 3,

Panel Two.

Feb. 15, 1996.

As Amended on Denial of Rehearing March 14, 1996.

William R. Hickman, Marilee C. Erickson, Reed, McClure, Seattle, for appellants.

Richard C. Eymann, Feltman, Gebhardt, Eymann & Jones, Spokane, for respondent.

THOMPSON, Judge.

Dolores, Daren, and Dwight Henderson appeal rulings made by the court during a trial resulting in a jury finding that Daren Henderson--not Steven Tyrrell--was the driver in a single-car accident. The Hendersons contend they were denied a fair trial by Mr. Tyrrell's destruction of the wrecked car and loss of other evidence. They also contend the trial court erred by admitting hearsay and unsworn testimony.

In addition, Daren Henderson appeals a jury award of $3,694,068 to Mr. Tyrrell. He contends the award was the result of the trial court's failure to permit the jury to allocate fault to a potentially responsible third party, the improper admission of evidence regarding Mr. Tyrrell's brother, and the court's instruction on intervening cause. Daren Henderson also contends the court erred in failing to reduce the amount of the damage award.

We affirm.

Mr. Tyrrell and the Henderson siblings were riding in Mr. Tyrrell's 1972 Camaro on the evening of July 5, 1988, when the car crashed near Medical Lake on Hallet Road. The car was traveling about 75 miles per hour; it rolled and landed upright in a rocky field 190 to 195 feet off the road. Mr. Tyrrell, whom passers-by found lying on the ground 20 to 35 feet from the wrecked car, was seriously injured and remained in a coma for several days; the Hendersons' injuries were less serious.

The high-performance car was the "love of [Mr. Tyrrell's] life." In the past, he had refused to allow others to drive it. However, the parties disagreed over who was driving the car at the time of the accident.

Mr. Tyrrell testified he drove his car that evening to visit his friend, Dwight Henderson. Dwight lived with his mother, Diane Henderson; his twin sister, Dolores Henderson; and his older brother, Daren Henderson. Mr. Tyrrell lived nearby with his mother, Pamela Stratton. Mr. Tyrrell and the Henderson siblings got into Mr. Tyrrell's car to drive to the town of Medical Lake to rent videotapes. Mr. Tyrrell said he stopped briefly to go into his residence, and when he returned to the car Daren Henderson was sitting in the driver's seat. Daren refused to move, and Mr. Tyrrell finally agreed to let him drive. Mr. Tyrrell testified he got into the front passenger seat, and Dolores and Dwight Henderson were in the back seat.

Mr. Tyrrell testified Daren drove slowly on the unpaved road, but when the car reached the pavement, he "laid the throttle down." The car started fishtailing, and Mr. Tyrrell yelled at Daren to slow down. Mr. Tyrrell's last clear memory was of the car leaving the roadway; he testified he vaguely remembered later feeling "pain in my chest, as if somebody was putting their arms around my chest and pulling me, or lifting me or doing something of that nature."

Mr. Tyrrell presented expert testimony supporting his claim that Daren Henderson was driving the car, and that he, Steven Tyrrell, was pulled from the right front passenger seat after the accident. Dr. William Brady concluded the person in the right front passenger seat would have received the most serious injuries in the accident, and the likelihood of any passenger being thrown from the car during the accident was "close to nil."

Among Mr. Tyrrell's injuries were two collapsed lungs a condition commonly caused by a blunt abdominal trauma, such as striking a steering wheel. However, Dr. Brady and another medical expert testified Mr. Tyrrell did not receive a significant blunt abdominal trauma during the accident. Based on his comparison of x-rays taken when Mr. Tyrrell arrived at the hospital with x-rays taken an hour later, Dr. Brady concluded the lungs collapsed after emergency medical personnel created a small tear in Mr. Tyrrell's airway during intubation. He testified the result was an "accepted risk" of emergency treatment, and Mr. Tyrrell was treated appropriately. Dr. Brady testified the emergency personnel "did exactly the right thing. They did a swell job. And they got a perfect result."

The Henderson siblings testified Mr. Tyrrell was driving the car; Dolores was in the front passenger seat; and Daren and Dwight were in the back seat. They said the car did not make any stops after leaving the Henderson residence. After the accident, they said, Dolores was partially hanging from the right front window, and Daren was lying across Dwight's lap, partially hanging from the left front window. They said Mr. Tyrrell was thrown from the car, and they found him several feet away. Dwight received relatively minor injuries; Dolores received cuts and bruises, and injuries to her knees; Daren had a broken scapula and rib, complained of pain in his lower back, and had a swollen right hand and tender spots on his chest and knees.

The Hendersons presented expert testimony indicating Mr. Tyrrell was driving the car. Ralph E. Duncan, an accident reconstruction engineer, concluded Mr. Tyrrell was driving, Dolores Henderson was in the front passenger seat, and Dwight and Daren Henderson were in the back seat. His opinion was based in part on Mr. Tyrrell's chest injury. Dr. Donald Hutchings, a clinical neuropsychologist who treated Mr. Tyrrell for his traumatic brain injury, testified Mr. Tyrrell suffered from retrograde amnesia after the accident. He stated that, although after the accident Mr. Tyrrell consistently said he was not the car's driver, his memory of the events should not be necessarily considered accurate or valid. Dr. Hutchings testified: "I wouldn't want any truly important decisions to be based ... solely on his self-report of what took place."

The Hendersons sued Mr. Tyrrell in May 1990, alleging Mr. Tyrrell was the driver. Mr. Tyrrell answered and counterclaimed, alleging Daren Henderson was the driver. The parties agreed to bifurcate the trial as to liability and damages and to first determine the identity of the driver. On July 2, 1993, a jury concluded Daren Henderson was the driver.

Almost a year later, the parties presented evidence to a different jury on the question of damages. ¹ Medical evidence showed Mr. Tyrrell suffered broken bones in both legs, his left foot, his pelvis, his right arm, and his collarbone. His shattered left kneecap was removed. Dr. James Conaty, an orthopedic surgeon who treated Mr. Tyrrell through January 1990, testified Mr. Tyrrell's bones were as strong as they had been before the accident, though he might suffer a slight loss of use of his knee because of the missing kneecap.

Dr. Vivian Moise, a physiatrist who began treating Mr. Tyrrell nine days after the accident, concluded Mr. Tyrrell suffered a basilar skull fracture. No other doctor diagnosed such a skull fracture, but at trial all medical experts agreed Mr. Tyrrell suffered a closed head injury or brain injury. Dr. Catherine Mateer, a clinical neuropsychologist who evaluated Mr. Tyrrell before trial, concluded he had suffered a "very severe traumatic brain injury." However, Dr. Lloyd Cripe, a clinical neuropsychologist who evaluated Mr. Tyrrell for the defense, concluded the brain injury resulted in only "mild impairment."

The doctors' most immediate problem with Mr. Tyrrell in emergency was his collapsed lungs. In the damages trial, Dr. Brady repeated his opinion that intubation was the likely cause of the collapsed lungs. ² Based on the hospital's records, he concluded Mr. Tyrrell was intubated before arriving at the hospital, but the tube was removed at the hospital and another tube was inserted. Dr. Brady was unable to explain why this would have been done, and had no opinion as to the standard of care in this situation. However, concluding it was "absolutely vital that an airway be established and maintained to keep Steve alive," Dr. Brady found no basis for concluding there was any negligence in Mr. Tyrrell's care or treatment.

The medical experts appeared to agree the collapsed lungs could have contributed to Mr. Tyrrell's brain impairment. Dr. John Garcia, a surgeon who treated Mr. Tyrrell at the emergency room and was his primary physician for 12 days, testified there was some "difficulty with oxygenation." Based on a positive neurological test performed when Mr. Tyrrell arrived at the hospital, Dr. Moise concluded the later collapse of the lungs and the resulting hypoxia, or low blood oxygen levels, caused or contributed to Mr. Tyrrell's brain injury. Dr. Brady agreed hypoxia can cause brain injury, and did not disagree with the hypoxia diagnosis in Mr. Tyrrell's case.

Mr. Tyrrell remained in a coma or a near-comatose state for several days after the accident. When Dr. Moise first saw Mr. Tyrrell, he was unresponsive. She initiated neuropsychological therapy to get his brain to "turn on," as well as physical, occupational, and speech therapy. Mr. Tyrrell was in rehabilitation for months, learning to walk, talk, and dress himself. When Mr. Tyrrell was discharged from the hospital on November 18, 1988, his physical skills were near normal, although he had limited flexibility of his right elbow.

But Mr. Tyrrell was not back to normal with his mental or cognitive functioning. Dr. Moise testified:

[H]e was still showing problems with his attention. Ability to really focus his mind on something. And not distract himself. His reaction times, and speed of mentally processing information and responding were slow compared to the normal range. At that time he still had a poor awareness of his brain deficits. This is very common, after a brain injury. The part of...