Holz v. Burlington Northern R. Co.

• Decision Date: 06 August 1990
• Docket Number: No. 23727-6-I,23727-6-I
• Citation: 794 P.2d 1304,58 Wn.App. 704
• Parties: Gerald HOLZ and Kathryn M. Holz, husband and wife, and Kathryn M. Holz as the Administrator of the Estate of Jody Oswald Holz, deceased, Respondents, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, Appellant, and The County of Whatcom, Defendant.
• Court: Washington Court of Appeals

Page 704

58 Wn.App. 704

794 P.2d 1304

Gerald HOLZ and Kathryn M. Holz, husband and wife, and Kathryn M. Holz as the Administrator of the Estate of Jody Oswald Holz, deceased, Respondents, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, Appellant and The County of Whatcom, Defendant.

No. 23727-6-I.

Court of Appeals of Washington Division 1.

Aug. 6, 1990.

Daniel L. Kinerk, Susan L. Pierini, Kurt W. Kroschel, Rexanne Gibson, Kurt W. Kroschel & Associates, Bellevue, for appellant.

Dean Brett, Rand F. Jack, Brett & Daugert, Bellingham, for respondents.

WEBSTER, Judge.

Burlington Northern appeals a wrongful death judgment, contending the jury should have known the decedent lacked a motorcycle endorsement, that he failed to complete a traffic safety education course, and that, at the time of his death, he violated a statute permitting only holders of a motorcycle endorsement to ride without supervision or at night.

FACTS

On the night of September 17, 1987, 16-year-old Jody Holz unwittingly drove his 750 cc motorcycle into a black railroad tank car straddling an unlit Whatcom County Road. He broke his neck and died. His parents and the administrator of his estate filed this action for wrongful death against Burlington Northern and Whatcom County. Plaintiffs' theory was that Burlington Northern was negligent in blocking the road because this was unnecessary and contrary to custom. Further, the whole accident could have been avoided at a cost of $1.99 if Burlington Northern had used a 30-minute flare.

Prior to trial, the court granted plaintiffs' motion in limine to exclude any reference to the fact that Jody Holz was not licensed to ride a motorcycle. At the time of his death, he had only a driver's instruction permit, as opposed to a motorcycle endorsement, RCW 46.20.500, ¹ or motorcyclist's instruction permit, RCW 46.20.055. ² Burlington Northern opposed the motion in limine, arguing that Jody Holz never completed a "traffic safety education course" as required of minor license applicants, RCW 46.20.100, ³ and that he rode in violation of RCW 46.20.510(3), now subsection (2), ⁴ which prohibits night riding and unsupervised riding by persons without a motorcycle endorsement.

At trial, Burlington Northern twice offered to prove that Jody Holz was not licensed to ride a motorcycle without supervision or at night; the offer did not go further. The court adhered to its prior ruling. The court also refused to permit Burlington Northern to cross-examine an 18-year-old friend of Jody Holz, Sheri Vermeer, as to whether Jody completed a driver's education course. During direct examination, when asked how she met Jody, Miss Vermeer volunteered that she met him "in Driver's Ed". Out of the presence of the jury, it was established that Miss Vermeer did not know whether Jody finished the driver's education course, although Jody's mother later confirmed that he had not.

The jury heard conflicting evidence as to whether Jody Holz was speeding, whether he was wearing a helmet, and whether the tank car was visible. The jury found Jody Holz and Whatcom County each 2.5 percent negligent, and Burlington Northern 95 percent responsible. The jury did not know that riding without supervision or at night is illegal when the rider lacks a motorcycle endorsement because Burlington Northern's proposed instruction to this effect was refused.

REQUIRED CONNECTION BETWEEN UNLICENSED STATUS AND INJURY

Burlington Northern contends the trial court erred in granting plaintiffs' motion in limine and in refusing its proposed instruction. We disagree; under the facts of this case, it was not error to exclude reference to the fact that Jody Holz lacked a motorcycle endorsement.

Burlington Northern ignores the crucial question: Would a person with a motorcycle endorsement, enabling that person to ride unsupervised and at night, have been any better off, i.e., any less likely to have suffered the same fate? Riding a motorcycle without supervision at night is not illegal; the Legislature has declared only that doing so without a motorcycle endorsement is. See RCW 46.20.055(1)(b), .510(2). To show a causal connection between this illegality and an accident, one must show that the accident was more likely to result from it than from the legal behavior of riding unsupervised at night with a motorcycle endorsement.

If a rider with a motorcycle endorsement would have suffered the same fate, evidence that Jody Holz lacked an endorsement would be irrelevant. See ER 401. Moreover, it would carry with it "the danger of unfair prejudice, confusion of the issues, or misleading the jury," ER 403, because the jury might feel his family and personal administrator were less worthy of compensation than if he were a fully licensed rider, i.e., a law-abiding citizen. Like character evidence generally, evidence of other bad or illegal acts

tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened."

Advisory Committee Note to Fed.R.Evid. 404(a), quoting California Law Revision Commission Report rejecting the use of character evidence in civil cases.

Reasonable minds often differ as to how to strike the balance between probative value and unfair prejudice, and the trial judge in general is in a better position to weigh the competing considerations. Thus, evidentiary determinations of the sort presented here are within the sound discretion of the trial court. See State v. Rice, 48 Wash.App. 7, 11-13, 737 P.2d 726 (1987) (upholding exclusion of evidence). This is particularly true when the trial court excludes evidence that a person lacked a proper license at the time of an accident because, absent evidence to the contrary, unlicensed status is irrelevant. See Annot., Lack of proper automobile registration or operator's license as evidence of operator's negligence, 29 A.L.R.2d 963 (1953, later case service, 1981, & supp. 1989).

Instead of focusing on the critical issue, Burlington Northern simply argues: Jody Holz did not have a motorcycle endorsement; thus, he was prohibited from riding unsupervised or at night; if he had not violated this restriction, he would not have died. This argument misses the point. In all cases upholding the general rule that unlicensed status is irrelevant, the same argument could be made: the accident victim was not licensed to drive; persons without a driver's license may not drive; if the accident victim had obeyed this restriction, there would have been no injury. Here, there is no evidence or argument as to how or why a person with a motorcycle endorsement (who as a minor would have had to pass a motorcycle safety education course) would have been any less likely to suffer the same fate as Jody Holz. Therefore, Burlington Northern's argument fails to prove a causal connection between the accident and the alleged negligence of riding unsupervised at night without a motorcycle endorsement.

Burlington Northern relies on White v. Peters, 52 Wash.2d 824, 828, 329 P.2d 471 (1958), for a distinction between merely lacking a license and violating the restrictions of a limited license. However, White, conforms to the general rule noted above. The plaintiff had a restricted driver's license because his right leg was amputated below the knee. The restriction required that his automobile be equipped with a hand throttle mounted on the steering wheel. White, at 827, 329 P.2d 471. The plaintiff testified "that, when he saw defendant's car sliding toward his car just prior to the collision, he had no difficulty taking his right foot from the gas throttle." White, at 828, 329 P.2d 471. Implicit in this observation by the court is that the plaintiff might have had difficulty transferring his prosthetic foot from the gas pedal to the brake pedal whereas a person with a natural right foot could have done so sooner. Although the court did not refer to any evidence that this was in fact the case, common experience confirms that the quickest way to transfer one's foot from a gas pedal to a brake pedal is to rotate one's ankle, a task the plaintiff in White was unable to accomplish. Because the evidence supported an inference that the plaintiff's violation of the restriction was a proximate cause of the accident, the jury was properly instructed that the violation was contributory negligence. White, at 828, 329 P.2d 471.

Similarly, in three out-of-state cases upon which Burlington Northern relies, the evidence supported an inference that the alleged negligence was a proximate cause of injury. In Duncan v. Hixon, 223 Va. 373, 288 S.E.2d 494, 495 (1982), the court noted that an adult driver might have avoided the collision in that case. In Dorsett v. Dion, 347 So.2d 826, 827 (Fla.App.1977), there was a lack of contact between the plaintiff's vehicle and the defendant's vehicle; this and other circumstances led the court to conclude "that the plaintiff's injury may well have resulted from her own inexperience and her inability to handle her own car." In Klanseck v. Anderson Sales and Serv., Inc., 426 Mich. 78, 393 N.W.2d 356 (1986), the court emphasized the plaintiff's minimal experience riding a 1000 cc motorcycle and defense testimony that a front tire blowout would not have caused more experienced riders to fall.

Here, there was no testimony or other evidence that a holder of a motorcycle endorsement, even if more experienced and knowledgeable than Jody Holz, ⁵ would have been less likely to collide with Burlington Northern's tank car. Speed was not a significant factor. The speed limit was 35 miles per hour, but the average speed of motorists at the place of the collision was 43 miles per hour. A witness testified that Jody Holz was travelling between 35 and 40 miles per hour. Even if...