Powell v. United Parcel Service, Inc., No. 59554-7-I (Wash. App. 5/12/2008)
| Decision Date | 12 May 2008 |
| Docket Number | No. 59554-7-I,59554-7-I |
| Court | Washington Court of Appeals |
| Parties | MARK J. POWELL, a single person, individually, Respondent/Cross-Appellant, v. UNITED PARCEL SERVICE, INC., a foreign corporation, Appellant/Cross-Respondent, and ROY G. DIAS, individually, Defendant. |
Appeal from Snohomish Superior Court. Docket No: 05-2-05668-0. Judgment or order under review. Date filed: 02/27/2007. Judge signing: Honorable Gerald L Knight.
Counsel for Appellant(s), Eric Peter Gillett, Preg O Donnell & Gillett PLLC, 1800 9th Ave Ste 1500, Seattle, WA, 98101-1340.
Melissa D Carter, Attorney at Law, 1800 9th Ave Ste 1500, Seattle, WA, 98101-1340.
James Fitzgerald Williams, Perkins Coie, 1201 3rd Ave Fl 48, Seattle, WA, 98101-3029.
Penny Fields, Perkins Coie LLP, 1201 3rd Ave Ste 4800, Seattle, WA, 98101-3099.
Counsel for Respondent(s), Robert Neil Gellatly Jr., Luvera Barnett Brindley Beninger et al, 701 5th Ave Ste 6700, Seattle, WA, 98104-7016.
Deborah Lee Martin, The Luvera Law Firm, 4236 Ne 123rd St, Seattle, WA, 98125-5920.
United Parcel Service (UPS) appeals a judgment awarding damages to Mark Powell for injuries he sustained when a UPS van collided with his motorcycle. UPS contends that the trial court erred by (1) directing a verdict for Powell on the affirmative defense of comparative negligence, (2) making erroneous evidentiary rulings, and (3) denying UPS's motion for a new trial based on juror misconduct. Because there was no evidence from which a jury could find that Powell could have reasonably reacted to avoid the collision, UPS has failed to demonstrate error or prejudice from the trial court's evidentiary rulings, and the claimed juror misconduct inheres in the verdict, we affirm.
On May 31, 2002, Powell was riding his motorcycle traveling southbound on State Route (SR) 527, also known as 19th Avenue Southeast. At the same time, Roy Dias, who was driving a UPS package van, was pulling out of a driveway off northbound SR 527 to go to his next delivery stop, which was across the road off southbound SR 527. Dias drove across the two northbound lanes and the one center lane and attempted to turn left onto southbound SR 527. Powell was in the inside lane at the time, but moved to the outside lane when Dias turned onto the southbound lanes. Powell remained in the outside lane, and Dias then moved into that lane and collided with Powell's motorcycle. As a result of the collision, Powell suffered extensive injuries to his knee and ankle and sued UPS for damages. UPS asserted comparative negligence as an affirmative defense, alleging that Powell was partly at fault for the accident.
The trial court ruled on summary judgment that UPS's negligence was the proximate cause of the accident, but denied Powell's motion to dismiss UPS's comparative negligence defense. The parties stipulated to the amount of past medical expenses and Powell's wage loss proximately caused by the accident. The case then proceeded to trial on the issues of comparative negligence and damages.
Powell moved in limine to exclude a statement Dias gave to a claims adjuster for UPS's insurance company on the afternoon of the accident. UPS sought to offer this statement because Dias died (of causes unrelated to the accident) before he was ever deposed in this case. The trial court granted Powell's motion and ruled that Dias' statement was inadmissible hearsay. The trial court also granted UPS's motion in limine to exclude testimony from lay witnesses about their opinion of who was at fault in the accident.
At trial, Powell testified he was about 12 car lengths behind the van when it first pulled onto the southbound lanes, "far enough away that [he] had time to decide what [he] was going to do about it," and he then moved to the outside lane. He also testified that he was not sure which lane the van was going to stay in, so he slowed down. He said that the van stayed in the inside lane and was moving very slowly, so he remained in the outside lane, resumed his speed, and overtook him. Powell explained that by using the term "overtook," he meant that his motorcycle eventually came even with or reached the van. He testified that when his front tire was even with the van's rear bumper, the van turned abruptly into his lane, he slammed on his brakes, and his motorcycle collided with the van.
Both Thomas McAlpine and Daniel Gauthier were independent witnesses to the accident and testified that Powell did everything he could to avoid the accident. McAlpine was pulling out of a driveway off the southbound lanes and was waiting for traffic to clear, so he could turn left onto the northbound lanes when he saw the accident. He saw the UPS van cut across five lanes of traffic and bump the motorcycle on the handlebars when the motorcycle was still in the inside lane, and then hit the motorcycle again when it moved to the outside lane. He also testified that Powell did not appear to be attempting to pass the van, but just swerved to avoid it.
Gauthier was a passenger in a car traveling in the northbound lanes at the time of the accident and testified that he first saw the UPS van in the center lane with its blinker on. He saw the van moving diagonally toward the outside southbound lane, causing the motorcycle to move over to the outside lane to avoid getting hit by the van. He then saw the van turn right in front of the motorcycle, but did not see the actual collision because the van blocked his view. He testified that "it was very obvious that he [the van] cut this motorcycle off, and then cut him off again here, and then turned right in front of him." He said Powell did not appear to be attempting to accelerate past the van and was not making any unusual maneuvers. Officer Ann Bakke testified that based her investigation, there was no evidence that Powell did anything to contribute to the accident.
Powell moved for a directed verdict on the issue of comparative negligence, arguing that there was insufficient evidence to support a finding that he was in part at fault. The trial court granted the motion and dismissed the affirmative defense. The jury returned a verdict award for Powell in the amount of $928,614.82. UPS moved for a new trial based on juror misconduct, but the trial court denied the motion.
UPS contends that the trial court erred by directing a verdict on the comparative negligence defense because the evidence showed that Powell had time to react to avoid the collision and failed to reasonably do so. We disagree.
The trial court may grant a directed verdict only when as a matter of law, there is no evidence, nor reasonable inferences from the evidence, to sustain the verdict.1 The evidence must be considered in the light most favorable to the nonmoving party.2 Because it presents an issue of law, we review a motion for a directed verdict de novo.3
Under the tort reform act of 1981, contributory "fault" on the part of a claimant diminishes proportionally the amount of damages the claimant can recover.4 The act defines "fault" as "acts or omissions . . . that are in any measure negligent or reckless toward the person or property of the actor or others" and includes an "unreasonable failure to avoid an injury or to mitigate damages."5 6 Thus, once it becomes apparent that the disfavored driver will not yield the right of way, the favored driver must react to avoid a collision.7 But the favored driver must have a reasonable time within which to react.8
UPS's assertion that Powell had time to react is not supported by the evidence. Powell testified he had time to react when he first saw the van enter the roadway and turn onto the southbound lanes. At that time, the van was a safe distance from his motorcycle. But when the van actually moved into his lane and caused the collision, he testified that it happened "in a heartbeat," and he had only "[s]econds to respond."
UPS also asserts that because the van had its right turn signal on, Powell was on notice that it was moving into the outside lane, and Powell created a new risk of collision by attempting to pass the van on the right. But simply using a turn signal does not validate an otherwise illegal turn. RCW 46.61.305 provides that "[n]o person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal."9 Dias could not have made the turn into Powell's lane with reasonable safety while Powell's front tire was even with the van's bumper. Putting on his turn signal did not automatically give him the right to move into the lane in which Powell was lawfully traveling, nor did it require Powell to slow down so Dias could make an unsafe lane change. Indeed Powell testified that he resumed his speed because there was traffic behind him. As the trial court explained in its ruling:
The fact that the turn signal is on does not establish the defendant's having legally taken the right-of-way. The turning vehicle was [the] disfavored driver, and turning your indicator on does not give you the right-of-way. It allows you to comply with the law to give an indication that you are going to be turning.
UPS also contends that Powell's testimony that he did not know what the van was going to do and considered that it might move to the outside lane and make a right turn is evidence that he was aware of the possibility that the van would move into his lane and would collide with him if he tried to pass on the right. But this testimony does not support a finding that Powell failed to reasonably react to avoid the collision; it actually...
To continue reading
Request your trial