Lascheid v. City of Kennewick
| Decision Date | 22 March 2007 |
| Docket Number | No. 24464-4-III.,No. 24613-2-III.,No. 24800-3-III.,24464-4-III.,24613-2-III.,24800-3-III. |
| Court | Washington Court of Appeals |
| Parties | Jeff LASCHEID, Respondent and Cross-Appellant, v. CITY OF KENNEWICK, Appellant. Jeff Lascheid, Respondent, v. City of Kennewick, Appellant. Jeff Lascheid, Appellant, v. City of Kennewick, Respondent. |
Michael Scott Dutton, Attorney at Law, Seattle, WA, Joseph E. Fischnaller, Attorney at Law, Woodinville, WA, for Respondents.
George E. Telquist, Leavy Schultz Davis & Fearing PS, John Stephen Ziobro, Kennewick City Attorney, Kennewick, WA, for Appellants.
OPINION PUBLISHED IN PART
¶ 1 The assignments of error here generate two essential questions. The first is whether the trial judge should have decided as a matter of law that the plaintiff police officer assumed the risk of the injuries he sustained while attempting to negotiate a high speed obstacle course. We agree with the trial judge that this was a question of fact for a jury. The second question is how the jury's damage award should be calculated. Specifically, should the Department of Labor and Industries' lien be deducted before or after the plaintiff's comparative fault was assessed? Again, we agree with the trial judge. The lien should be deducted first. And we affirm the judgment entered on a verdict in favor of the officer.
¶ 2 Jeff Lascheid was a police officer with the City of Kennewick (City), Washington. The City required that he drive an emergency vehicle operations course—an obstacle course. He had successfully driven the high speed course before. But Officer Lascheid this time lost control of his car, went over a curb, and slammed into a four-inch square metal support pole that totaled his car. He was injured.
¶ 3 Officer Lascheid is covered by Plan 2 of the Law Enforcement Officers' and Fire Fighters' Retirement System, chapter 41.26 RCW (LEOFF). The Department of Labor and Industries (L & I) paid him workers' compensation pursuant to that plan.
¶ 4 Officer Lascheid sued for damages in excess of his L & I benefits. This is permitted by LEOFF. RCW 41.26.281. He claimed the City was negligent. The City responded that his suit was barred by the doctrine of implied primary assumption of risk. The City alleged this as an affirmative defense. The City moved to dismiss the complaint because Officer Lascheid, like all police officers, assumed the risk of driving hazards when he took the job. Officer Lascheid also moved for summary judgment that the City owed him a duty—that assumption of risk did not relieve the City of its duty to him. The court concluded that Officer Lascheid's responsibility, his comparative fault, was a disputed question of material fact and denied both motions.
¶ 5 The case was tried to a jury. The City moved to dismiss Officer Lascheid's complaint throughout the trial, again on the theory that the doctrine of primary assumption of risk relieved the City of any duty as a matter of law. And, again, the trial judge refused to dismiss the case. The court also rejected the City's proposed jury instruction that all workers, as a matter of law, assume the risk of hazards inherent in the job when they accept employment.
¶ 6 The jury returned a special verdict that Officer Lascheid did not assume the risk of this injury. The jury found that the City was negligent and that Officer Lascheid was 50 percent at fault. The jury assessed Officer Lascheid's total damages at $524,680.
¶ 7 The court denied the City's motions for judgment notwithstanding the verdict or a new trial.
¶ 8 Both Officer Lascheid and the City dispute the court's calculation of the judgment amount. The court deducted two sums from the jury's damage award, L & I payments and the percentage for Officer Lascheid's comparative fault. LEOFF requires that the recovery amount be offset by the amount of benefits received.1
¶ 9 The order of these offsets affects the final judgment amount. The judge here first offset the L & I payments then reduced that result by Officer Lascheid's 50 percent comparative fault. This approach resulted in an award almost twice that which would have been reached if the judge had first reduced the award by the 50 percent for comparative fault and then offset the L & I benefits. The City says this gave Officer Lascheid a windfall.
¶ 10 The City first appeals the trial judge's refusal to dismiss Officer Lascheid's claims. It claims he assumed the risk of injury and it therefore owed him no duty. Officer Lascheid appeals the judge's decision to give the City any credit for L & I benefits. He contends that offsetting the City's liability for benefits paid by L & I resulted in a windfall for the City. He wants us to order the City to reimburse L & I. Or he wants us to increase the jury award by the amount of L & I benefits received.
¶ 11 The City contends that Officer Lascheid knowingly and voluntarily assumed the risk of a known hazard. This, it argues, satisfies the requirements of implied primary assumption of risk and is an absolute bar to recovery.
¶ 12 Officer Lascheid responds that the scope of the former common law doctrine of assumption of risk has been narrowed by a statutory comparative fault scheme. Only one form of the old assumption of risk survives as an absolute bar, he argues: what used to be called "implied primary" assumption of risk. And for this to bar his cause of action, the City had to show that he knew and voluntarily accepted the precise hazard at the time he made his decision.
¶ 13 The propriety of the trial judge's refusal to dismiss this suit is a question of law. And so our review is de novo. Weber Constr., Inc. v. Spokane County, 124 Wash.App. 29, 33, 98 P.3d 60 (2004). We accept as true the nonmoving party's evidence and give that party the benefit of all reasonable inferences from that evidence. Id. Here, each party moved for judgment as a matter of law at least once. This does not change the nature of our inquiry. Hoagland v. Mount Vernon Sch. Dist. No. 320, 23 Wash.App. 650, 657 n. 1, 597 P.2d 1376 (1979), aff'd, 95 Wash.2d 424, 623 P.2d 1156 (1981). We must determine whether there was any disputed material fact and whether either party was entitled to judgment as a matter of law. Id. A trial is necessary if there is a genuine issue as to any material fact. LaPlante v. State, 85 Wash.2d 154, 158, 531 P.2d 299 (1975).
¶ 14 A law enforcement officer who is injured on the job has a statutory right to sue his or her employer for negligence. Fray v. Spokane County, 134 Wash.2d 637, 646, 952 P.2d 601 (1998). Cities owe employee police officers a statutory duty not to injure them by negligent acts or omissions. RCW 41.26.281; Locke v. City of Seattle, 133 Wash. App. 696, 704, 137 P.3d 52 (2006), review granted, 158 Wash.2d 1025, 152 P.3d 347 (2007). LEOFF expressly provides injured officers a cause of action for negligence. RCW 41.26.281; Gillis v. City of Walla Walla, 94 Wash.2d 193, 198, 616 P.2d 625 (1980); Bickford v. City of Seattle, 104 Wash.App. 809, 17 P.3d 1240 (2001); Hansen v. City of Everett, 93 Wash.App. 921, 926, 971 P.2d 111 (1999). The language of the LEOFF statutes is clear and unambiguous. Fray, 134 Wash.2d at 650, 952 P.2d 601.
¶ 15 There are four kinds of assumption of risk: (1) express assumption of risk; (2) implied primary assumption of risk; (3) implied reasonable assumption of risk; and (4) implied unreasonable assumption of risk. Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 496, 834 P.2d 6 (1992).
¶ 16 The City asserts implied primary assumption of risk as a defense. This is the only one of the four that is a complete bar to a plaintiff's recovery. Dorr v. Big Creek Wood Prods., Inc., 84 Wash.App. 420, 425, 927 P.2d 1148 (1996). The primary assumption of risk defense obviates any duty; and, of course—no duty no negligence. Id. This is because if the plaintiff consented— before any act by the defendant—to relieve the defendant of any duty regarding a specific known hazard, there can be no negligence. Id. at 426-27, 927 P.2d 1148; Scott, 119 Wash.2d at 500-01, 834 P.2d 6.
¶ 17 We construe the doctrine narrowly because implied primary assumption of risk is a complete bar to recovery. Dorr, 84 Wash.App. at 425, 927 P.2d 1148. The defense has been successfully invoked in sports injury cases. Participants there knew and voluntarily accepted the inherent risks. Scott, 119 Wash.2d at 498, 834 P.2d 6.
¶ 18 In Scott, the court rejected primary assumption of risk as a complete bar to recovery. Scott, 119 Wash.2d at 503-04, 834 P.2d 6. The court allowed the plaintiff to bring a claim of negligence beyond the assumed risk inherent in the activity. Id. There, a boy was injured skiing. He sued the ski resort. The court concluded that he assumed the risk only of hazards inherent in the sport—not of the resort operator's negligence. The court did not rule out that the plaintiff may have been contributorily negligent by unreasonably assuming some risk. Id. at 503, 834 P.2d 6. But negligence was not a complete bar. It was a question of fact for the jury. Id.
¶ 19 Kirk v. Washington State University2 is also helpful. There, a cheerleader was injured while practicing. She sued the university for negligence. She claimed her injury resulted from dangerous conditions and inadequate supervision. The university asserted assumption of risks inherent in cheerleading. Kirk, 109 Wash.2d at 451, 746 P.2d 285, cited by Scott, 119 Wash.2d at 498, 834 P.2d 6. The court held that the student assumed the risks inherent in cheerleading. But she did not assume the risk of hazards caused by negligently dangerous facilities or inadequate supervision. Kirk, 109 Wash.2d at 454-55, 746 P.2d 285, cited by Scott, 119 Wash.2d at 498, 834 P.2d 6.
¶ 20 Officer Lascheid argues that the risks of the course here were not the same as those posed on the street. We...
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