Lee v. Willis Enters., Inc.

• Decision Date: 07 June 2016
• Docket Number: No. 46374–1–II
• Citation: Lee v. Willis Enters., Inc., 194 Wash.App. 394, 377 P.3d 244 (Wash. App. 2016)
• Parties: Verl Lee and Marsha Lee, husband and wife, Respondents and Cross–Appellants, v. Willis Enterprises, Inc., a Washington Corporation, and Daniel Fletcher, Appellants and Cross–Respondents.
• Court: Washington Court of Appeals

194 Wash.App. 394

377 P.3d 244

Verl Lee and Marsha Lee, husband and wife, Respondents and Cross–Appellants

v.Willis Enterprises, Inc., a Washington Corporation, and Daniel Fletcher, Appellants and Cross–Respondents.

No. 46374–1–II

Court of Appeals of Washington, Division 2.

June 7, 2016

Michael Barr King, Jason Wayne Anderson, Carney Badley Spellman PS, 701 5th Ave., Ste. 3600, Justin Price Wade, Washington State Attorney General, 800 5th Avenue, Suite 2000, Seattle, WA, 98104–7010, Thomas Avery Brown, Brown Lewis Janhunen & Spencer, 101 S. Main St., P.O. Box 111, Montesano, WA, 98563–0111, for Appellants and Cross–Respondents.

Ray W. Kahler, Keith Leon Kessler, Stritmatter Kessler Whelan, 413 8th St., Hoquiam, WA, 98550–3607, Craig W. Weston, Attorney at Law, 1408 16th Ave., Longview, WA, 98632–2901, for Respondents and Cross–Appellants.

PART PUBLISHED OPINION

Johanson, J.

In this negligence action, a jury found Daniel Fletcher and his employer, Willis Enterprises, Inc., primarily liable for injuries sustained by Verl Lee following an incident at Willis' log processing mill.Fletcher and Willis appeal a judgment against them, arguing that the trial court(1) erred by granting partial summary judgment in Lee's favor regarding Fletcher's negligence and (2) abused its discretion at trial by excluding Fletcher's testimony regarding Lee's state of mind and by admitting evidence of Fletcher's character contrary to ER404(a).In the published portion of this opinion, we hold that the trial court properly granted partial summary judgment concerning Fletcher's negligence.In the unpublished portion of this opinion, we further hold that any evidentiary error does not warrant reversal.We affirm.

FACTS

I.Background

¶ 2 Willis owns and operates a mill that processes whole logs into wood chips.In January 2010, the mill operations stopped because of a disabled “variable frequency drive”(VFD).The VFD is a piece of high-voltage electrical equipment that controlled the speed of the motors that ran a drum used to debark the logs for processing.The VFD was mounted in an elevated cabinet measuring approximately six feet wide by six feet tall.The VFD comprises nine capacitors arranged in sets of three panels.Above these capacitors on top of the VFD was a small square fan that provided cool air to the unit.

¶ 3 Willis contacted Advanced Electrical Technologies to help repair the disabled VFD.The company dispatched its employee Lee, an electronics technician, to Willis to repair the VFD.Upon his arrival, Willis directed Fletcher, one of Willis' “loader operator[s],” to escort Lee to the VFD's location.Clerk's Papers(CP)at 966.Fletcher understood that he was to “help [Lee] get [the VFD] running.”CPat 264.

¶ 4 Lee performed several tests on the VFD to diagnose the issue, ultimately concluding that the VFD needed to be disassembled.Lee turned off the power to the VFD.Fletcher assisted Lee, first by bringing Lee an air hose to remove dust and debris from the VFD and later by assisting Lee with the removal of the capacitors.After the VFD had been disassembled and reassembled, Lee turned the power back on, but the VFD did not restart.

¶ 5 Lee then examined the VFD from above the device and concluded that the VFD's fan was causing the problem.Fletcher and Lee searched for a replacement fan, but they could not locate one.Seeking to examine the fan from a closer vantage point, Lee “got up inside the [VFD cabinet] and got over to the section where [he] could look with [his] little flashlight down inside.”CPat 982.Doing so enabled Lee to confirm that the fan was not functioning.

¶ 6 It occurred to Fletcher that he might fix the stuck fan by “hit[ting] it.”CPat 294.To do so, Fletcher picked up a screwdriver from a nearby toolbox and announced that he was going to “tap” the fan.CPat 270.As Fletcher attempted to tap the fan with the screwdriver, he inadvertently contacted part of the energized VFD causing an “electrical arc blast” and creating what Lee described as “the loudest sound [he had] ever heard.”CPat 991, 982.Fletcher and Lee were the only witnesses to the event and their accounts of the moments immediately preceding the incident differed.

¶ 7 According to Fletcher, Lee was inside the VFD cabinet shining his flashlight for “a couple minutes” before Fletcher tried to use the screwdriver to restart the fan.CPat 1016.Fletcher believed that Lee saw him holding the screwdriver.In his deposition, Fletcher testified that 15 seconds elapsed between the time he announced to Lee that he would attempt to “tap” the fan and the moment he did so.CPat 271.During those 15 seconds, Fletcher explained that Lee “stood there and held that flashlight to where [Fletcher] could see [the fan].”CPat 270.Fletcher interpreted this inaction as Lee's tacit endorsement of the plan.He expected Lee to say something if Lee felt that using the screwdriver in the VFD created a dangerous situation.

¶ 8 Lee's account differed.Lee recalled Fletcher saying he could hit the fan with the screwdriver, but Lee could remark only “no, you can't” before Fletcher bent down and inserted the tool into the VFD and set off the blast.CPat 982.

¶ 9 Because of the electrical arc blast, Lee's hearing was irreparably damaged.Various tones ring constantly in Lee's head, and he suffers from chronic pain behind his eyes.Lee was rendered unemployable because of the incident.

II.Procedure

¶ 10 Lee filed a complaint against Willis and Fletcher, alleging that Fletcher negligently inserted the screwdriver into the VFD and that this negligent act caused the arc and subsequent explosion that caused Lee's injuries.The complaint further alleged that because Fletcher's conduct occurred within the scope and course of his employment, Willis was liable under the doctrine of respondeat superior.

¶ 11 Before trial, Lee moved for partial summary judgment on the issue of Fletcher's negligence, urging the trial court to find that Fletcher's insertion of the screwdriver into the VFD was negligent as a matter of law.Lee contended that Fletcher was negligent as a matter of law because he was not qualified to perform work on the VFD, he knew it was energized during the incident, other Willis employees admitted that it would be unwise to touch an energized VFD, and Fletcher put the screwdriver into the VFD without being directed to do so by Lee.

¶ 12 Fletcher responded that summary judgment was not proper for two reasons.First, he argued that reasonable minds could disagree on the issue of whether Lee knew of and had cooperated with the plan and whether the two men had agreed on that course of action as evidenced by Lee's holding of the flashlight.Second, he argued that reasonable minds could disagree regarding the foreseeability of Lee's injuries, citing to Lee's statements admitting that he would not have anticipated an arc blast to have resulted from Fletcher's actions.

¶ 13 During the motion hearing, Fletcher argued that a finding of negligence as a matter of law was improper because he believed that his actions had been approved by Lee.Fletcher argued that considering the facts in a light most favorable to him, he was doing something that had been “approved by the guy that was running the show” and his actions were reasonable considering the circumstances.Report of Proceedings (RP)(Jan. 21, 2014)at 11.The trial court granted Lee's motion.

¶ 14 The jury was instructed that Fletcher was negligent and that Fletcher's negligence was a proximate cause of Lee's injuries.The jury found Fletcher 90 percent at fault and Lee 10 percent at fault.The trial court entered a judgment against Fletcher and Willis for damages.Fletcher and Willis appeal.¹

ANALYSIS

Partial Summary Judgment

¶ 15 Fletcher contends that the trial court erred by granting summary judgment for two reasons.First, Fletcher contends that a jury should have determined whether Lee's injury was foreseeable.Second, Fletcher asserts that the trial court erred by rejecting his “implicit assurance of safety” theory.Br. of Appellantat 39.We disagree and affirm the trial court's order granting partial summary judgment in Lee's favor.²

A.Legal Principles

¶ 16We review summary judgment orders de novo, performing the same inquiry as the superior court.Hisle v. Todd Pac. Shipyards Corp. , 151 Wash.2d 853, 860, 93 P.3d 108(2004).Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.CR56(c);Vallandigham v. Clover Park Sch. Dist. No. 400 , 154 Wash.2d 16, 26, 109 P.3d 805(2005).When reviewing a summary judgment, we consider all facts and reasonable inferences from them in the light most favorable to the nonmoving party.Vallandigham , 154 Wash.2d at 26, 109 P.3d 805;Magula v. Benton Franklin Title Co. , 131 Wash.2d 171, 182, 930 P.2d 307(1997).

¶ 17 To establish the elements of an action for negligence, the plaintiff must show (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury.Iwai v. State , 129 Wash.2d 84, 96, 915 P.2d 1089(1996).Whether a legal duty exists is a question of law, but whether a party has breached a duty is a question of fact.SeeHertog, ex rel. S.A.H. v. City of Seattle , 138 Wash.2d 265, 275, 979 P.2d 400(1999).

¶ 18 A person whose conduct involves an unreasonable risk of harm to another is under a duty to exercise reasonable care to prevent the risk from taking effect.Minahan v. W. Wash. Fair Ass'n , 117 Wash.App. 881, 897, 73 P.3d 1019(2003)(internal quotation marks omitted)(quotingRestatement (Second) of TortsS § 321(1965) ).“ ‘Negligence is generally a question of fact for the jury, and should be decided as a matter of law only in the clearest of cases and when reasonable minds could not have...