McCluskey v. Handorff-Sherman

Citation68 Wn.App. 96,841 P.2d 1300
Decision Date21 December 1992
Docket NumberD,No. 15171-5-II,HANDORFF-SHERMA,15171-5-II
PartiesNadine McCLUSKEY, Individually, as Guardian, and as Personal Representative, Respondent, v. Timothyefendant, The State of Washington, Appellant.
CourtCourt of Appeals of Washington

Kenneth O. Eikenberry, Atty. Gen., and Delbert W. Johnson, Asst. Atty. Gen., Olympia, and Michael A. Nicefaro, Jr., Asst. Atty. Gen., Tort Claims Div., Seattle, for appellant.

Charles K. Wiggins Edwards, Sieh, Wiggins & Hathaway P.S., Seattle, Keith L. Kessler, Stritmatter, Kessler & McCauley, Hoquiam, and Mark E. Barber and Kellogg, Barber, Dean & Fontes, P.S., Renton, for respondent.

SEINFELD, Judge.

Wallace McCluskey was killed in a two car collision on State Road 900. His widow, Nadine McCluskey, on her own behalf and as guardian of her minor children, brought a survival action and wrongful death action against the State of Washington and against Timothy Handorff-Sherman, the driver of the other car. A jury found both defendants negligent and awarded Mrs. McCluskey $1,682,984.37 in damages. 1

The State then moved for a new trial, alleging irregularities in the proceedings in the form of collusion between plaintiff and defendant Handorff-Sherman and errors of law in the admission of evidence and in jury instructions. The trial court denied the State's motion and the State now appeals. We affirm.

FACTS

In the late afternoon of January 13, 1989, sixteen year old Timothy Handorff-Sherman, an unemployed high school drop-out, was driving home to Renton in his 1973 Mustang. He was accompanied by a few friends with whom he had shared several pipes of marijuana during the course of the day. It was raining hard and, as he turned off Interstate 5 onto Martin Luther King Way (SR 900), it started to snow.

Proceeding east on Martin Luther King Way, Handorff-Sherman stopped at the first traffic light. His was the second car in the inside lane when the light changed, but he wanted to pass the car in front of him and moved into the right hand lane to do so. He then accelerated in order to complete the passing maneuver and found himself heading downhill toward a "dip" in the road where water had collected. Continuing to accelerate, he moved back toward the left hand lane. The Mustang's tires lost traction on the wet roadway surface and the car slid across the median into oncoming traffic, striking Wallace McCluskey's car, forcing it down an embankment. McCluskey was thrown from his car and died at the scene.

In her complaint, Nadine McCluskey alleged that Handorff-Sherman negligently operated his vehicle and that the State had "maintained a hazardous and unsafe roadway" and had "failed to adequately and properly separate eastbound and westbound traffic." John Hoglund, generally known as a plaintiffs' lawyer in personal injury cases, agreed to represent the indigent, uninsured, and still unemployed Handorff-Sherman on a pro bono basis. Handorff-Sherman obtained Hoglund's name through the Puget Sound Legal Services Foundation, for whom Hoglund had previously defended low income clients, pro bono, in automobile accident cases. 2

McCluskey made numerous motions in limine. Handorff-Sherman joined in some and made no objection to others. For example, Handorff-Sherman joined in McCluskey's motion to exclude any reference to Handorff-Sherman's marijuana use and he did not object to plaintiff's motion to prohibit any mention of annuities Wallace McCluskey may have had. (Hoglund later contended that his failure to object with respect to the annuity issue was an oversight.) The trial court denied both of those motions.

In his opening statement, Hoglund advised the jury that his client accepted partial responsibility for the accident and that he would not contest the plaintiff's damages. However, he asserted that the State "was a partner in that responsibility" because of its negligent failure to place warning signs or to construct a median barrier to separate eastbound and westbound traffic.

At trial, McCluskey presented results of tests performed by the State that indicated that the friction of the road surface at issue was below the desirable minimum and was in a category that "should be monitored for indications of potential hazards." The evidence also showed that the State failed to take any action in response to these test results. McCluskey's expert testified that this section of road "is unreasonably dangerous," that it is a high frequency accident area, and that the State should have taken one of the following four steps to prevent accidents: post "slippery when wet" warning signs; post speed reduction advisory signs; resurface the roadway to eliminate the slippery condition; or place a median barrier to prevent crossover head-on collisions.

The State denied that this area of the highway was unreasonably dangerous, that it had an unusual accident rate, or that it was unusually slippery. Moreover, the State asserted that the remedial measures suggested by McCluskey were contrary to industry standards and would cause more problems than they would cure.

The State wanted to argue, in the alternative, that it could not be held liable for its failure to make certain improvements to SR 900 since the Legislature controlled the expenditure of funds for road projects through its adoption of a priority array and the Legislature did not authorize funding for the improvement of this section of road. 3 (The State did not, however, claim discretionary immunity and it admitted that it could not assert poverty as a defense to the negligence claim.) To support this theory, the State sought admission of the 193 page 1986 Priority Array, Primary Highway Priorities By State Route. The trial court excluded the document.

The trial court did allow the State to describe the priority-determining process in general: Department of Transportation personnel gather accident statistical data, examine each site and list projects that they recommend for funding in the next biennium; the Secretary of Transportation and the Transportation Commission further review the list and eventually approve certain projects; the list then becomes the official highway program for the next 2 years. An expert for the State also explained the different kinds of highway funds available to the State, and the restrictions on those funds. In addition, the trial court permitted the State to compare accident rates on the section of the road at issue with accident rates on comparable stretches of highway.

The State submitted a series of jury instructions detailing the law related to priority programming for highway development, chapter 47.05 RCW, and advising the jury that it could not find the State liable if it determined that the State acted in accordance with that law. The trial court declined to give any of those instructions. The trial court did instruct the jury, over the objection of the State, regarding the "emergency doctrine" as it pertained to Handorff-Sherman's liability. 4

After the jury returned its verdict finding both the State and Handorff-Sherman each 50 percent liable, the State moved for a new trial and sought a post trial hearing to determine whether plaintiff and Handorff-Sherman, who outwardly appeared to be adversarial parties, had secretly agreed to work together to obtain a verdict against the State, the defendant with the "deep-pocket." The trial court initially agreed to a hearing on the collusion issue, but after receiving affidavits and memoranda explaining the various actions taken by the parties during the course of the trial, and after being advised of the circumstances surrounding Hoglund's representation of Handorff-Sherman, the trial court declared that all its questions had been adequately addressed. Consequently, it cancelled the evidentiary hearing and denied the motion for a new trial.

In its appeal, the State contends that the trial court erred by (1) denying its motions for an evidentiary hearing and for a new trial based on trial irregularities and the unusual collaborative conduct between plaintiff and co-defendant Handorff-Sherman; (2) excluding evidence regarding State compliance with statutes establishing priorities in funding highway projects; (3) refusing to instruct the jury regarding priority programming; and (4) instructing the jury to consider the emergency doctrine as it related to the conduct of Handorff-Sherman.

I

We will reverse a trial court's denial of a motion for a new trial only upon a showing that the trial court abused its discretion. The trial court abused its discretion only if it based its decision on untenable grounds or acted for untenable reasons. Kramer v. J.I. Case Mfg. Co, 62 Wash.App. 544, 561, 815 P.2d 798 (1991); Dean v. Group Health Coop., 62 Wash.App. 829, 834, 816 P.2d 757 (1991). The State has not made such a showing in this case.

Although the State was not able to provide evidence of an agreement between plaintiff and Handorff-Sherman, it lists numerous actions of counsel that it contends indicate improper "collaboration" between the two parties, warranting further investigation. The State argues that if the plaintiff and co-defendant did act in concert pursuant to a secret agreement, while simultaneously falsely portraying themselves as adversaries, the colluding parties misled the jury, prejudiced the State, and violated public policy. Although we agree that the two parties were in what could be termed "unusual synchronization" on various issues, the trial court did not err in concluding that these circumstances alone did not require an evidentiary hearing or a new trial.

As indicators of improper collaboration, the State points to Handorff-Sherman's failure to object to plaintiff's motions in limine or to her damages, to Handorff-Sherman's agreement with plaintiff's jury challenges and selection, and to his targeting the State as the responsible party. Additionally, the State contends that the...

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