MacKenzie v. Fischer, No. 52908-1-I (WA 10/25/2004)
| Decision Date | 25 October 2004 |
| Docket Number | No. 52908-1-I,52908-1-I |
| Court | Washington Supreme Court |
| Parties | DONNA MacKENZIE, an individual, Respondent, v. THOM FISCHER, an individual, Appellant. |
Appeal from Superior Court of Whatcom County. Docket No. 99-2-00040-1. Judgment or order under review. Date filed: 07/23/2003. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant/Cross-Respondent, Thomas Gregory Greenan, Zender Thurston PS, 1700 D St, PO Box 5226, Bellingham, WA 98227-5226.
Michael T Mumford, Zender Thurston PS, 1700 D St, PO Box 5226, Bellingham, WA 98227-5226.
Hal Thurston, Zender Thurston PS, PO Box 5226, Bellingham, WA 98227-5226.
Counsel for Respondent/Cross-Appellant, Charles Kenneth Wiggins, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.
The defendant, Thom Fischer, appeals a jury verdict that awarded $110,000 to the plaintiff, Donna MacKenzie, for negligence. Fischer was accused of committing several tortious acts, including battery by sexually assaulting MacKenzie, sexual abuse, and negligence. By stipulation of the parties, the trial court applied Alaska substantive law because the incident upon which the claims were based occurred in Alaska. Because the jury found that Fischer did not engage in sexual contact without consent, he argues that the jury's verdict that he was negligent is inconsistent, and therefore, the trial court should have granted his postverdict motion for a judgment as a matter of law. He also argues that the trial court erred by applying Alaska law to determine the award of costs, fees, and prejudgment interest. Finally, Fischer argues that the court erred in the manner it applied that law.
Because a reasonable jury could conclude that Fischer was negligent, we affirm the trial court's denial of Fischer's motion for judgment as a matter of law. But we reverse and remand to the trial court to apply Washington law to its award for attorney fees and costs. Finally, although the trial court correctly decided to apply Alaska substantive law to its decision awarding prejudgment interest, we reverse part of the prejudgment interest award because the trial court misapplied Alaska law.
Donna MacKenzie sued Thom Fischer, a Washington resident, in Whatcom County Superior Court alleging sexual assault and battery, sexual abuse, negligence, emotional distress, and outrageous conduct. The lawsuit was based on a sexual encounter between the two that occurred in Alaska. The parties stipulated that the trial court should apply Alaska substantive law.
In the jury instructions, the court defined negligence in the following manner:
Negligence is the failure to exercise ordinary care. It is the doing of some act which a reasonably careful person would not do under the same or similar circumstances or the failure to do something which a reasonably careful person would have done under the same or similar circumstances.
The court also instructed the jury that:
On her claim of Negligence the Plaintiff, Donna MacKenzie, has the burden of proving each of the following propositions:
First, that the Defendant Thom Fischer was negligent; Second, that the negligence of the Defendant was a proximate cause of injury or damage to the Plaintiff.
With regard to the Defendant's claim that the Plaintiff was contributorily negligent, the Defendant has the burden of proving each of the following propositions:
First, that the Plaintiff was negligent; and Second, that the negligence of the Plaintiff was a proximate cause of the Plaintiff's own injury or damage and was therefore contributory negligence.
In its verdict, the jury answered the first two questions in the negative.
. . . .
The jury further concluded that Fischer was negligent and that his negligence was a proximate cause of injury or damage to MacKenzie. The jury awarded $5,000 in past economic losses, $5,000 in future economic losses, and $100,000 in past and future noneconomic losses. The jury also found that MacKenzie was 40 percent contributionally negligent. After the verdict, Fischer moved for judgment as a matter of law, arguing that the finding of negligence was not possible given the jury's finding that there was consent. The court denied the motion.
MacKenzie moved for entry of judgment in her favor, prejudgment interest, attorney fees, and costs. The court applied Alaska law, and granted a $66,000 judgment, $17,121.72 in interest, $12,100 in attorney fees, and $15,751.21 in costs. Fischer appeals.
Fischer first argues that the trial court erred by denying its motion for judgment as a matter of law.1 More specifically, he argues that no reasonable jury could find that he committed an act of negligence when it also concluded that he and MacKenzie consented to the sexual act. Under CR 50(b), a trial court, after viewing the evidence in the light most favorable to the nonmoving party, may enter a judgment as a matter of law if it finds that no legally sufficient evidence or reasonable inference supports the jury's verdict.2
We review de novo the trial court's decision on a motion for judgment as a matter of law.3 We must view evidence in the light most favorable to the nonmoving party, and determine whether the result is the only reasonable conclusion.4 Because the encounter at issue occurred in the State of Alaska and because the parties agreed by stipulation, we apply Alaska substantive law.
MacKenzie argues that Fischer waived his right to challenge the consistency of the verdict when he failed to object at the time of the verdict. But Fischer did raise the issue during the instruction conference, stating that `we believe that a negligence claim cannot be established by the facts in this case, that the facts will either prove one of the two intentional torts put by the plaintiff or they will prove that there was consent.' With this objection, Fischer sufficiently preserved his objection to the jury instruction for negligence and the resulting verdicts that he believes are inconsistent.
Fischer argues that `{o}ne who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.'5 This argument relies on the faulty conclusion that the jury's answers necessarily imply that Fischer received effective consent. Because the appellant did not provide a transcript of the trial we will assume, if at all possible, that the facts supported the verdict.6 As MacKenzie argues, it is possible that the jury believed she gave consent under the mistaken belief that her boyfriend, not Fischer, had climbed into her bed. Under those facts, the jury could find that Fischer did not engage in sexual contact with MacKenzie without consent, but still find that Fischer was negligent.
To prove negligence a plaintiff must establish that: (1) the defendant owed a duty to the plaintiff, (2) the duty was breached, and (3) the injury to the plaintiff was proximately caused by the breach.7 Fischer's duty was to affirmatively secure effective consent before engaging in sexual intercourse with MacKenzie. Thus, in our assumed set of facts, he would be negligent if he did not first verify that her consent was effective and directed to him. He breached his duty and the resulting harm sex with someone with whom MacKenzie did not effectively consent to have sex would have been a direct result of that breach.
It is true that under the Restatement (Second) of Torts, `the fact that the plaintiff is operating under a unilateral mistake regarding the invasion to be expected from the conduct . . . does not prevent the consent from being effective to protect the actor against liability for a tort based on the absence of consent, if the actor relies upon the apparent consent and does not know of the mistake.'8 But a close reading of the comments and illustrations reveals that the Restatement does not relate to a mistake regarding the identity of the person to whom the consent was given.9
Under our assumed set of facts, the finding of consent is not inconsistent with a finding of negligence. We therefore affirm the trial court's decision to deny Fischer's motion for judgment as a matter of law. Next, Fischer argues that the trial court erred by applying Alaska law in awarding costs, attorney fees, and prejudgment interest. Because the parties stipulated to the application of Alaska substantive law, we must first decide whether the Alaska law that governs the award of attorney fees, costs, and prejudgment interest in this case is substantive or procedural. If it is substantive, then Alaska law applies.
If Alaska law applies, then the award of attorney fees in this case is decided by Alaska Rule of Civil Procedure (Alaska Civil Rule) 82. Alaska Statutes (AS) Sec. 09.60.010 provides the statutory support for Alaska Civil Rule 82, which states that `{e}xcept as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule.'10 A schedule in the rule determines the amount of attorney fees by awarding set percentages of the money judgment.11
For guidance in determining whether Alaska Civil Rule 82 is substantive or procedural, we do not find direct authority in Alaskan case law. Thus, we look to other persuasive authority. In Seattle-First National Bank v. Schriber,12 the Oregon Court of Appeals held that `{b}ecause attorney's fees awarded pursuant to {Oregon Revised Statutes} ORS 20.096 are not merely costs incidental to judicial administration, awarding them is a...
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