Knappett v. King Cnty. Metro Transit

• Decision Date: 21 February 2012
• Docket Number: No. 65801-8-I,65801-8-I
• Citation: Knappett v. King Cnty. Metro Transit, No. 65801-8-I (Wash. App. Feb 21, 2012)
• Court: Washington Court of Appeals
• Parties: KEITH KNAPPETT and JUDY KNAPPETT, husband and wife, Respondents, v. KING COUNTY METRO TRANSIT, Appellant.

KEITH KNAPPETT and JUDY KNAPPETT, husband and wife, Respondents,

v.KING COUNTY METRO TRANSIT, Appellant.

No. 65801-8-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: February 21, 2012

UNPUBLISHED OPINION

Dwyer, C.J. — Keith Knappett sued King County (Metro) to recover damages for injuries that he sustained after slipping while exiting a county-operated bus on a rainy day.¹ At trial, Knappett introduced evidence that yellow nosing strips, located at the edges of the stairs of Metro buses, become dangerously slippery when wet. At the conclusion of Knappett's case in chief, Metro moved for judgment as a matter of law based upon the lack of direct evidence that Knappett had stepped on a yellow nosing strip or that the strip was wet at the time of the incident. The trial court denied the motion, and the jury found that Metro's negligence was the sole cause of Knappett's injuries.

Following the verdict, a juror testified by declaration that he had tested the slipperiness of a yellow nosing strip while exiting a Metro bus on the last day of trial. Although Metro knew that the court had provided bus passes to jurors for use during jury service, Metro moved for a new trial based on juror misconduct. The trial court denied the motion.

Metro appeals from both rulings. Finding no error, we affirm.

I

On the morning of October 24, 2006, Keith Knappett was commuting from Bothell on a bus operated by Metro. It was raining heavily that day and the floor of the bus was covered with small puddles. Knappett was the last passenger to exit the bus at his stop in downtown Seattle. Knappett began to descend the stairs of the bus's rear exit, holding onto the hand rail as he did so. As he moved his right foot to the second step, Knappett slipped and fell. The fall carried him out of the bus and onto the pavement below. The bus pulled away, and Knappett called 911. Medical personnel arrived at the scene shortly thereafter. Knappett sustained a severe ankle injury as a result of the fall.

Knappett later commenced an action for personal injury damages against Metro. At the jury trial that followed, Knappett testified regarding his recollections of the incident. He introduced expert testimony indicating that the material covering the nosing of the stairs on Metro buses becomes dangerously slippery when wet. The expert explained that the term "nosing" refers to the firsttwo to three inches from the edge of each step. The expert further testified regarding the dynamics of descending stairs and the importance of a slip-resistant surface on the nosing of the stairs. Following the conclusion of Knappett's case in chief, Metro moved for judgment as a matter of law pursuant to Civil Rule 50. Metro's motion was based upon the absence of evidence demonstrating a violation of a transit industry standard of care and the absence of any testimony indicating that the rear steps were wet or that Knappett actually contacted a yellow nosing strip while exiting the bus. The trial court denied Metro's motion.

Metro called three witnesses. Sergey Buryy, the driver who was operating the bus that Knappett was riding on the day of the incident, testified that he did not observe Knappett fall. Michael Tanberg, the ambulance attendant who initially treated Knappett, testified that Knappett had reported tripping but not hitting the ground. Anthony Miceli, one of the firefighters who responded to Knappett's 911 call, testified that Knappett had told him "that he slipped on the wet sidewalk and twisted his left ankle." Report of Proceedings (RP) (May 20, 2010) at 28. In closing argument to the jury, Metro argued that the testimony of these witnesses indicated that Knappett had not sustained his injuries while exiting the bus.

The jury found that Metro's negligence was the sole cause of Knappett's injuries and awarded substantial money damages. After the verdict was read,the jurors met with counsel for both parties outside the courtroom. One juror stated that, when exiting a Metro bus on the last day of trial, he noticed that the yellow nosing on the bus stair was wet and slick. Thereafter, the juror testified by declaration that he had "scuffed" his shoe across the yellow strip, and that a second juror had described engaging in similar conduct. However, there was no evidence that either juror's observations were discussed during deliberations. Metro brought a motion for new trial pursuant to Civil Rule 59 based on juror misconduct. The trial court denied this motion.

II

Metro first contends that the trial court erred by denying its motion for judgment as a matter of law because there was no direct evidence that Knappett stepped onto the yellow nosing strip or that the strip was actually wet at the time of Knappett's fall.² Because there was ample evidence adduced at trial to submit these questions to the jury, we disagree.

We review a motion for judgment as a matter of law de novo, applying the same legal standard as the trial court. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 187, 23 P.3d 440 (2001); Jacob's Meadow Owners Ass'n v. Plateau 44 II, LLC, 139 Wn. App. 743, 765 n.11, 162 P.3d 1153 (2007). Such a motion admits the truth of the opponent's evidence and all inferences that can be reasonablydrawn therefrom and requires the evidence to be interpreted most strongly against the moving party and in the light most favorable to the opponent. Davis v. Early Constr. Co., 63 Wn.2d 252, 254-55, 386 P.2d 958 (1963). The nonmoving party "'is entitled to have his case submitted to the jury on the basis of the evidence which is most favorable to his contention.'" Schwab v. Dep't of Labor & Indus., 69 Wn.2d 111, 116, 417 P.2d 613 (1966) (quoting Mutti v. Boeing Aircraft Co., 25 Wn.2d 871, 877, 172 P.2d 249 (1946)). Indeed, a motion for judgment as a matter of law "'can be granted only when it can be said, as a matter of law, that there is no competent and substantial evidence upon which the verdict can rest.'" Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001) (quoting State v. Hall, 74 Wn.2d 726, 727, 446 P.2d 323 (1968)).

Circumstantial evidence, of course, may be used to support a verdict. Arnold v. Sanstol, 43 Wn.2d 94, 99, 260 P.2d 327 (1953). Circumstantial evidence is sufficient if the evidence '"affords room for [persons] of reasonable minds to conclude that there is a greater probability that the thing in question . . . happened in such a way as to fix liability upon the person charged therewith than it is that it happened in a way for which a person charged would not be liable."' Callahan v. Keystone Fireworks Mfg. Co., 72 Wn.2d 823, 829, 435 P.2d 626 (1967) (quoting Gardner v. Seymour, 27 Wn.2d 802, 808-09, 180 P.2d 564 (1947)). "[A] verdict does not rest on speculation or conjecture when foundedupon reasonable inferences drawn from circumstantial facts." Douglas v. Freeman, 117 Wn.2d 242, 254-55, 814 P.2d 1160 (1991). Accordingly, in this case, we must determine whether there was sufficient evidence—either direct or circumstantial—from which a reasonable jury could determine that the yellow nosing strip was wet and that Knappett actually stepped upon it prior to his fall. We have no difficulty concluding, as the trial court did, that the evidence was sufficient to submit these questions to the jury.

At trial, Knappett testified that he had just begun to descend the stairs of the bus's rear exit when he fell. Knappett told the jury that he recalled lifting his right foot prior to "flying through the air" and landing on the pavement. RP (May 24, 2010) at 117. It was uncontested that a two-inch yellow strip of material—known as "Nora" flooring—extended along the edge of each step in the rear stairwell of the bus that Knappett was riding. Accordingly, there was direct evidence that Knappett was in the area of the yellow nosing strip just prior to his fall.

As Metro correctly points out, Knappett did not testify regarding the specific area of the step that his foot touched prior to slipping. However, Dr. Gary Sloan, an expert in ergonomics and industrial engineering, explained the dynamics of descending stairs to the jury. Dr. Sloan testified that "[w]hen we descend a flight of stairs, what we do is basically take our lead foot [and] move it over the nosing of the step below." RP (May 20, 2010) at 103. Dr. Sloan toldthe jury that it is "typically the case" that the ball of the foot "comes down on the edge of the step." RP (May 20, 2010) at 106. Dr. Sloan explained that where the surface of a step's nosing lacks adequate resistance to prevent movement of the ball of the foot, a person may "slip, oftentimes fall backwards, and be injured on the steps." RP (May 20, 2010) at 106. Given this testimony, a reasonable jury—knowing that Knappett was descending the rear stairs of the bus and that a person typically contacts the edge of the steps while doing so—could reasonably infer that Knappett had contacted the yellow nosing strip while exiting the bus.

Moreover, the nature of Knappett's injuries was inconsistent with Metro's own theory of the case at trial. Metro argued to the jury that the testimony of the medical personnel, as well as Knappett's own varying accounts of the incident, indicated that Knappett had slipped on the sidewalk and not while descending the stairs of the bus. However, the orthopedic surgeon who treated Knappett, Dr. Alexis Falicov, testified that Knappett's injury was of a type "typically not encountered with normal walking-type injuries." Clerk's Papers (CP) at 249. He identified the injury as a "pilon fracture," an injury that occurs when the talus bone of the ankle is driven upwards into the tibial plafond, shattering the weight-bearing portion of the ankle joint. CP at 249. Dr. Falicov told the jury that, because a pilon fracture "requires a relatively high amount of force to shatter that bone," CP at 249, such an injury is generally inconsistent with "slipping on wet pavement." CP at 251. Instead,...