Hendrickson v. King County

• Decision Date: 23 June 2000
• Docket Number: No. 23938-8-II.,23938-8-II.
• Citation: 2 P.3d 1006,101 Wash.App. 258
• Parties: Bryce HENDRICKSON, Richard and Wendy Hendrickson, husband and wife, Respondents, v. KING COUNTY, Appellant, Auburn School District No. 408, Defendant.
• Court: Washington Court of Appeals

2 P.3d 1006

101 Wash.App. 258

Bryce HENDRICKSON, Richard and Wendy Hendrickson, husband and wife, Respondents, v. KING COUNTY, Appellant, Auburn School District No. 408, Defendant.

No. 23938-8-II.

Court of Appeals of Washington, Division 2.

June 23, 2000.

Richard C. Robinson, Lee, Smart, Cook, Martin & Patterson, Seattle, for Appellant.

Charles Kenneth Wiggins, Kenneth Wendell Masters, Wiggins Law Ofc., Bainbridge Is., Vernon W. Harkins, Rush, Hannula, Harkins & Kyler, Tacoma, for Respondents.

SEINFELD, J.

King County appeals a judgment against it in favor of Bryce Hendrickson and his parents.¹ Hendrickson sustained a spinal cord injury after he dove into a County-owned swimming pool. The County claims the trial court improperly applied CR 32(a)(5) to exclude deposition testimony and ER 904 to exclude medical records. The County also claims it is entitled to a new trial because of instructional error, insufficient evidence of causation, and cumulative error that denied it a fair trial. Finding no reversible error, we affirm.

FACTS

In January 1995, Hendrickson, then 16 years old, was a member of the Auburn High School swim team. The Auburn School District used a King County swimming pool for swim team practices. Although County-employed lifeguards were responsible generally for swimmer safety at the pool, the School District's coaches were in charge during team practice.

The practice pool had a moveable bulkhead that divided the pool into separate sections. During practices, the team placed the divider toward the deep end to separate the diving area from the swimming area. Swim team members routinely dove off the bulkhead during practices. Neither head swim team coach James Farrell nor assistant coaches Scott McLaughlin and Dave Halford ever advised team members not to dive off the bulkhead or told them about the risk of spinal cord injuries from diving into shallow water.

On January 23, Hendrickson arrived at the pool for practice and helped team members move the bulkhead into position. The pool depth markings at the bulkhead location indicated a water depth of six feet on one side of the bulkhead and five feet on the other side. The actual depths, however, were 5 feet 2 inches and 4 feet 9¾ inches respectively.

When the bulkhead was in place, Hendrickson walked out onto it, placed his feet on the edge, and dove into the water. Although no one saw him enter the pool, Aaron Ennis, a County lifeguard, saw someone dive in headfirst out of the corner of his eye.

Immediately after the dive, Hendrickson was unable to move. A teammate, Tyler Galloway, saw Hendrickson at the bottom of the pool and was able to help him lift his head out of the water. When Hendrickson told Tyler he was unable to breathe, Tyler called for help. County lifeguards and pool manager Tracy Alexander responded. They strapped Hendrickson to a backboard and lifted him from the pool; Hendrickson could not move any part of his body.

While Hendrickson was lying strapped to the backboard, Coach Farrell arrived and asked what happened. According to Coaches Farrell and McLaughlin and pool manager Alexander, Hendrickson said he had done a shallow dive, then a flip turn. In his trial testimony, Hendrickson recalled his comment as follows:

A: Well, I said, "I don't know what happened, I must have been flipping or something." I was just looking for some answers, I had no idea what was going on.

Q: Why did you say to Coach Farrell, "I don't know what's happening, but I must have been flipping or something"?

A: Well, for some reason, it felt like my body was all curled up in like a ball. I kept asking Nathan to straighten my legs out, and he kept saying, "They are straight, man, they are not bent at all."

Q: But you had a sensation like you were curled up?

A: Yes.

Q: Hendrickson, do you have any recollection of doing a flip or some kind of a flip when you dove into the water?

A: No, I don't.

Q: No recollection of that?

A: No.

Q: But do you acknowledge that you made the statement to Coach Farrell?

A: Yeah. I was just — I was looking for some answers. I had no idea what was going on.

Report of Proceedings at 1235. Later, Hendrickson could not remember what occurred after he left the bulkhead.

When Hendrickson's mother, Wendy Hendrickson, arrived at the pool, Coach Farrell told her that her son had been injured practicing flip turns. But Hendrickson told his mother only that he had been injured by diving off the bulkhead.

Hendrickson was sent to Auburn General Hospital. An x-ray of his back indicated a fractured fifth cervical vertebra. From the position of an abrasion at Hendrickson's hairline, Dr. Stephen Olmstead, a treating physician, concluded that the injury resulted from a dive at a steep angle.

Doctors performed a surgical fusion of Hendrickson's spine, surgery that saved his life and enabled him to breathe on his own. However, according to one of Hendrickson's doctors, he will never regain use of his legs, will always need assistance with many daily tasks, and will be at risk for numerous complications.

On April 30, 1997, the Hendricksons filed this lawsuit against the County and the School District, alleging that both entities were negligent. On October 23, the Hendricksons filed a Disclosure of Possible Lay and Expert Witnesses, listing Dr. Fontaine Piper, a Missouri resident, as an expert witness. On December 5, they filed an amendment to this document, again listing Dr. Piper. In both cases, they "reserve[d] the option to call" Dr. Piper as a witness at trial.

The School District retained as expert witnesses Dr. Leon Kazarian, an Ohio resident, and John Leonard, a Florida resident and expert in the field of coaches' training and certification. The County deposed Leonard and Drs. Piper and Kazarian. Before trial, the School District settled with the Hendricksons. The Hendricksons then retained Dr. Kazarian as their own expert witness.

On August 6, 1998, the Hendricksons filed an ER 904 designation, which listed Hendrickson's medical records from Auburn General Hospital² and others from Dr. Judith Ing-Higashi.³ These documents included pages in which each doctor mentioned that Hendrickson did a flip turn. On August 10, the Hendricksons filed a Plaintiffs' Witness and Exhibit List, identifying witnesses they expected to call at trial. The list did not include either Dr. Piper or Dr. Kazarian.

On August 19, the Hendricksons and the County submitted a Joint Statement of Evidence; it included the documents listed in the ER 904 designation, along with a statement that the "[d]efendant reserves admissibility decision pending foundation and relevance determinations at trial." The Joint Statement did not list either Dr. Piper or Dr. Kazarian as witnesses whom the parties anticipated calling for trial.

Also on August 19, the County filed a general objection to the admission of the documents listed in the Hendricksons' ER 904 designation. This objection stated, in pertinent part, as follows:

Therefore, under Miller [v. Arctic Alaska Fisheries Corp., 83 Wash.App. 255, 261, 921 P.2d 585 (1996) ], defendant must reserve its right to make every objection it can anticipate. At this time, defendant can only anticipate how plaintiffs are going to use the documents listed in their ER 904 designation. Regardless of the authenticity, it is not clear if the documents will be relevant and if proper foundation will be laid by plaintiffs.

For those reasons, defendant King County is acting in good faith in order to preserve its rights to object as to the admission of plaintiff's ER 904 designation. Many of the objections may be withdrawn at time of trial depending upon whether plaintiffs' counsel can lay the proper foundation and whether the documents become relevant.

Clerk's Papers at 834.

On August 21, the County served notice pursuant to CR 32(a)(5)(A) that it intended to introduce the depositions of Leonard, Dr. Piper, and Dr. Kazarian at trial. The Hendricksons moved in limine to exclude the testimony of all three, arguing in part that Drs. Piper and Kazarian were retained as consulting, not testifying, experts and that the County had not properly identified Leonard as a testifying expert. The trial court ruled as follows:

That witness[ ] ... John Leonard ... [was] disclosed by King County in its disclosure of possible primary witnesses [and is] not excluded from testifying at trial. King County cannot read deposition testimony from out of state experts pursuant to CR 32(a)(5). This includes experts identified by both plaintiff and defendant.

That King County may not call, allude to, or otherwise refer to in testimony of plaintiffs' consulting experts, Leon Kazarian... and Fontaine Piper, Ph.D. and King County is also precluded from placing in evidence any videotape or other evidence obtained from plaintiffs' consulting experts;

Clerk's Papers at 909-10.

Trial began on September 10, 1998. At the close of the plaintiffs' case, the County moved to dismiss for failure to prove causation. The trial court denied the motion.

During its case in chief, the County sought to introduce the medical records of Drs. Ing-Higashi, Joseph, and Olmstead, specifically the notations about Hendrickson doing a flip turn. The Hendricksons objected on the ground that the County had failed to provide notice of its intention to enter these documents into evidence. The trial court excluded the records.

At the close of the evidence, the County moved for a directed verdict, again arguing that the Hendricksons had failed to prove causation. The trial court denied the motion.

By special verdict, the jury found that both the School District and the County were negligent, apportioning fault at 30 percent and 70 percent respectively. The jury found that Hendrickson was not negligent. The County then moved for judgment as a matter of law or for a new trial. The trial court denied the motion.

I. EXCLUSION OF DEPOSITION TESTIMONY

The County first argues that the trial...