Hernandez v. Fedorchenko
| Decision Date | 19 July 2010 |
| Docket Number | 62770-8-I |
| Court | Washington Court of Appeals |
| Parties | STEVEN HERNANDEZ and CLEONA HERNANDEZ, husband and wife, Respondent/Cross-Appellants, v. TIMOFEY FEDORCHENKO and JANE DOE FEDORCHENKO, husband and wife, and the marital community thereof, Appellant/Cross-Respondents. |
UNPUBLISHED OPINION
Timofey Fedorchenko and his wife appeal from the judgment entered on a jury's verdict finding him liable in tort to Steven and Cleona Hernandez, who, in turn, cross-appeal. Finding no error, we affirm.
In 2000, Timofey Fedorchenko was driving east on a main thoroughfare in Kirkland. At a large intersection, eastbound traffic was provided two through-traffic lanes and one dedicated left turn lane. Fedorchenko approached the intersection in the left through-traffic lane. By the time he realized that he desired to make a left turn at the intersection, he could no longer enter the dedicated left turn lane.
Although the traffic lights for the through-traffic lanes were green Fedorchenko stopped his vehicle in the left through-lane. In response, the car directly behind Fedorchenko stopped without incident, as did the second car behind Fedorchenko, which was driven by Steven Hernandez. However, soon after the Hernandez vehicle stopped, it was struck from behind by a vehicle driven by Wendy Warmenhoven.
Warmenhoven had been driving her vehicle in the right through-traffic lane. She had become impatient because, although the traffic light was green, her lane of traffic had stopped.[1] After the Hernandez vehicle passed her she looked behind her to make sure that the left through-lane was clear. She then moved over into the left through-traffic lane, whereupon she struck the rear of the Hernandez vehicle.
Steven Hernandez had a history of back injury. After a 1993 traffic collision, Hernandez underwent spinal surgery to repair a herniated disc. Hernandez eventually recovered most of the function that he had lost as a result of the 1993 collision. After the 2000 collision with Warmenhoven, however, Hernandez again suffered back pain. In 2001, Hernandez underwent a second surgery.
Hernandez and his wife[2] sued Warmenhoven and Fedorchenko and his wife. Subsequently, Hernandez and Warmenhoven entered into a settlement agreement, and she was dismissed from the action in 2005. Litigation continued between Hernandez and Fedorchenko.
On September 4, 2008, the trial court ordered Fedorchenko to produce either of two proposed defense expert medical witnesses for deposition within eight days of the entry of the order. The trial court's order explicitly provided that "[t]he defendant bears the risk that the elected doctor will not agree to testify or for any reason is not allowed to testify." Fedorchenko did not comply with this order. Although Fedorchenko had elected which expert medical witness he proposed to call, he did not produce the expert for deposition as ordered. As a result of Fedorchenko's failure to comply with the discovery order the trial court excluded the expert witness, leaving Fedorchenko with no defense expert medical witness at trial.
Dr Bradley Billington was the excluded witness. Dr. Billington had been retained four years earlier by Warmenhoven's attorney, prior to Warmenhoven's dismissal from the lawsuit, to conduct a CR 35 physical examination of Hernandez. Dr. Billington performed the examination and wrote a report opining that the injuries necessitating Hernandez's second surgery were not caused by the collision. Fedorchenko's attorney had added Dr. Billington to his witness list on the last day allowed for disclosure of such witnesses.
Prior to the discovery cutoff date, Hernandez requested to depose Dr. Billington. However, Fedorchenko did not respond to this request. The trial court then became involved in the discovery process. The record suggests that Fedorchenko's counsel never formally retained or even directly contacted Dr. Billington prior to the trial court's exclusion of him as an expert witness.
Hernandez moved for partial summary judgment, contending, as a matter of law, that Fedorchenko was negligent, that Fedorchenko's negligence was the proximate cause of the collision, and that Warmenhoven was not negligent, thus precluding Fedorchenko from asserting the affirmative defense of third-party fault. The trial court granted partial summary judgment on the issue of Fedorchenko's negligence but denied the motion on the issues of causation and Warmenhoven's negligence.
Also prior to trial, Hernandez moved to exclude Warmenhoven's testimony regarding the force of the impact and the resulting damage to the vehicles. Warmenhoven had testified in her deposition that she had "bumped" into Hernandez's vehicle and that there had been no damage to her vehicle resulting from the collision. The trial court granted the motion.
Fedorchenko did not testify at trial, but portions of his deposition were read into evidence. Hernandez, however, did testify, along with his wife, mother, father-in-law, childhood friend, and former work supervisor. Several of Hernandez's treating physicians and physiatrists also testified. Hernandez's surgeon testified that "[t]he auto accident was a cause of the need to do the [2001] surgery." An expert in accident reconstruction opined that Warmenhoven "would not have been able to avoid that collision, " unless she had never moved into the adjoining lane of traffic. Warmenhoven also testified, admitting that she had decided to change lanes because she was impatient due to her lane being completely stopped and that when she had looked over to change lanes, she "must not have looked very well."
At the close of the evidence, Hernandez moved for a directed verdict on the issue of Fedorchenko's affirmative defense that Warmenhoven was at fault. The trial court denied the motion. Fedorchenko lodged an objection to the proposed jury instructions based on the trial court's refusal to instruct the jury regarding Warmenhoven's statutory duty when changing lanes. The trial court concluded that Fedorchenko's proposed instruction was unnecessary because other instructions allowed him to make the same arguments.
The jury was provided a special verdict form containing six questions. The first question, regarding whether Fedorchenko was negligent, stated that, [3] Fedorchenko did not object to this verdict form. The jury found that Fedorchenko's negligence was a proximate cause of Hernandez's injuries, that Warmenhoven was negligent, and that her negligence was an additional proximate cause of Hernandez's injuries. The jury apportioned liability as follows: 75 percent to Fedorchenko and 25 percent to Warmenhoven. The jury found that Hernandez proved $500, 000 in damages and that his wife proved $50, 000 in damages.
Fedorchenko moved for a new trial, raising the same arguments that he now raises on appeal. This motion was denied. The trial court entered judgment consistent with the jury's verdict.
Fedorchenko appeals and Hernandez cross-appeals.
Fedorchenko first contends that the trial court erred in granting partial summary judgment that Fedorchenko was negligent.[4] We disagree.
We review de novo a grant of partial summary judgment. Federal Way Sch. Dist. No. 210 v. State, 167 Wn.2d 514, 523, 219 P.3d 941 (2009). We view the facts and any reasonable inferences from those facts in the light most favorable to the nonmoving party. Federal Way Sch Dist., 167 Wn.2d at 523.
An individual is negligent where he or she owes a duty of care to another and he or she breaches that duty. Squires v. McLaughlin, 44 Wn.2d 43, 48, 265 P.2d 265 (1953). Whether a duty exists is a question of law. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). In contrast, the issue of whether an individual breaches his or her duty of ordinary care is "'generally not susceptible to summary judgment'" and the trier of fact should make such a determination. Xiao Ping Chen v. City of Seattle, 153 Wn.App. 890, 909, 223 P.3d 1230 (2009) (quoting Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005)). However, where reasonable minds could reach but one conclusion, summary judgment is proper. Keystone Land & Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 178 n.10, 94 P.3d 945 (2004).
A driver owes a duty of care to other nearby drivers, including a duty to exercise ordinary care to avoid placing others in danger. Martini v. State, 121 Wn.App. 150, 160, 89 P.3d 250 (2004). Every person using a public street or highway is entitled to assume that other persons thereon will use ordinary care and obey the rules of the road. Poston v. Mathers, 77 Wn.2d 329, 334, 462 P.2d 222 (1969). In addition to these common law duties, a driver turning left at an intersection has a statutory duty to turn left from the extreme left-hand lane lawfully available for such a turn: "The driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of the vehicle." RCW 46.61.290(2). The violation of an applicable statute may be evidence of negligence. RCW 5.40.050.
Because Fedorchenko intended to turn left, he had a statutory duty to turn left from the dedicated left turn lane. Because he was in a lane of traffic other than the extreme left lane lawfully available to him when he attempted to turn left, he violated his statutory duty. Further, Fedorchenko testified in his deposition that he knew he was not supposed to make a left turn from the through-traffic lane, that he knew he was in a through-traffic...
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