Salisbury v. City of Seattle

• Decision Date: 17 January 2023
• Docket Number: 82474-1-I,consolidated with No. 84341-9-I
• Citation: 522 P.3d 1019
• Parties: Erik T. SALISBURY and Theresa Salisbury, Appellants, v. CITY OF SEATTLE, a municipal corporation; and Jeff Spong, an individual, Respondents.
• Court: Washington Court of Appeals

522 P.3d 1019

Erik T. SALISBURY and Theresa Salisbury, Appellants,

v.CITY OF SEATTLE, a municipal corporation; and Jeff Spong, an individual, Respondents.

No. 82474-1-I

consolidated with No. 84341-9-I

Court of Appeals of Washington, Division 1.

Filed January 17, 2023

George M. Ahrend, Luvera Law Firm, 421 W Riverside Ave. Ste. 1060, Spokane, WA, 99201-0406, Terence F. Traverso, Law Offices of Terence F. Traverso PS, 1408 140th Pl. Ne. Ste. 140, Bellevue, WA, 98007-3964, for Appellants.

Robert L. Christie, Christie Law Group, PLLC, 2100 Westlake Ave. N. Ste. 206, Seattle, WA, 98109-5802, Salim Daudi Lewis, Attorney at Law, 2100 Westlake Ave. N. Ste. 206, Seattle, WA, 98109-5802, for Respondents.

PUBLISHED OPINION

Birk, J.

¶1 This appeal arises out of a personal injury claim brought by former police officer Eric Salisbury against the city of Seattle (City) for an injury Salisbury sustained while on duty, which the parties tried to verdict. We address three issues. First, we conclude Salisbury presented sufficient evidence supporting claims for past and future economic damages for the issue to be decided by a jury. Second, we clarify the standards governing a defense of failure to mitigate in personal injury claims. And third, we conclude, consistent with controlling case law, that all of Salisbury's claimed damages, including general damages, are subject to offset for received and receivable Washington Law Enforcement Officers’ and Firefighters’ Retirement System Act (LEOFF), chapter 41.26 RCW, benefits. We affirm in part, reverse in part, and remand.

I

¶2 Officer Erik Salisbury was hired to work for the Seattle Police Department in 1985, when he was 21 years old. Over more than 30 years with the department, Salisbury was eventually assigned to the highly sought-after Harbor Patrol Unit. He worked a 24 hour "firefighter" shift, which allowed ample opportunity to pursue interests outside of work and put in over time. Salisbury called it "a fun job," and an "adventurous job" where he was certified as a scuba diver, and drove a variety of boats including a 49 foot twin turbo diesel jet engine boat. Salisbury described gaining deep gratification from his work and stated, "I was able to help, save, rescue more people in my time at harbor than I ever had in patrol." Salisbury also described enjoying the camaraderie between police officers, saying, "It's something that ... a lot of my friends don't have with their coworkers, with their peers, being able to share stories with each other" and share the burdens unique to police work that he did not want to expose his wife to.

¶3 On April 10, 2018, Salisbury was working as a firearms instructor for the Seattle Police Department when a trainee accidently discharged a round that ricocheted off the ground, causing a bullet fragment to enter Salisbury's lower right leg. The fragment entered near Salisbury's knee, traveled downward nine inches through his soft tissue, and lodged next to his bone midway down his tibia, where it remains. The City admitted that the trainee was negligent when he discharged his firearm and that the City was vicariously liable for this negligent act.

¶4 Salisbury went to Harborview Medical Center. Salisbury's pain grew steadily worse following the shooting, and he has experienced pain since that day. The pain would not stop "at any time, night or day." Salisbury began treatment for the pain with Dr. Gary Schuster on April 19, 2018.

¶5 Salisbury testified, "I hoped I was going to get back. That was my dream.... I didn't want to move on. I hoped I was going to get better." Salisbury initially attempted to return to work for a 10 day period shortly after the shooting. Salisbury described experiencing agonizing pain while standing on a harbor patrol boat and being limited in his movements. Salisbury testified, "I wasn't feeling comfortable or confident with my abilities to support myself, which means I won't be able to support somebody that needs my help."

¶6 In addition to his physical symptoms, Salisbury began experiencing difficulty sleeping and having nightmares and distressing thoughts about getting shot. He first considered the possibility of leaving the Police Department when he realized he was having trouble interacting with others. Salisbury described a particularly distressing incident where a colleague likened him to a character from the movie, One Flew Over the Cuckoo's Nest .¹ Following that incident, Salisbury left work, and did not return.

¶7 Salisbury began meeting with a clinical psychologist, Dr. Oscar Benitez, on July 30, 2018. Salisbury was diagnosed with posttraumatic stress disorder

(PTSD) and adjustment disorder with depressed mood, both attributed to the accidental shooting. The treatment plan was cognitive behavioral therapy, which Dr. Benitez described as "the gold standard for approaching both depression and PTSD."

¶8 When Salisbury's physical symptoms persisted into November 2018, Dr. Schuster prescribed a drug "originally designed as an antiseizure medication, but could possibly treat nerve-generated pain."

¶9 On April 1, 2019, Dr. Schuster attested that Salisbury was permanently incapacitated from gainful activity. Salisbury officially retired from the Seattle Police Department due to his leg injury on May 31, 2019. Salisbury testified that he thinks of being a police officer again every day, but that he knows he cannot.

¶10 As of June 9, 2020, Salisbury reported that his pain was "constant," and varied "from ignorable to more noticeable." Salisbury reported that his pain increased with activity, including driving, and that he uses a walking stick. Salisbury rated his pain at "7-8/10" following a one mile walk on an uneven trail. At that time, Salisbury was also having significant drug side effects. Though Dr. Schuster had lowered Salisbury's dose the side effects continued. Dr. Schuster told Salisbury to stop taking the medication. While the medication helped "the neuropathic pain, ... taking it was not worth the side effects. It was just masking the discomfort and was not curing the problem." At that time, Dr. Schuster assessed that Salisbury had "significant posttraumatic residuals," and that he had "no expectation" for further improvement.

¶11 Salisbury and his wife, Theresa Salisbury, brought a lawsuit against the City and the trainee who accidentally shot Salisbury, for tort damages. Because the City admitted liability, the only issue at trial was the determination of damages.

¶12 On June 27, 2020, in preparation for trial, Salisbury was examined by the City's witness, Dr. Jennifer James. Dr. James testified that there were no objective findings supporting Dr. Schuster's opinion that Salisbury had experienced nerve damage. Dr. James requested a special CT (computed tomography

) scan with three-dimensional reconstruction of Salisbury's right leg. Dr. James offered an alternate diagnosis, and testified that she was "100 percent confident that he has peripheral arterial disease in his right leg."

¶13 At trial, Salisbury presented evidence of past and future economic loss including a statement showing that his average monthly income for the 12 month period before the accident was $15,933.95. Salisbury testified that he worked in excess of 40 hours virtually every week, including working in the training unit in over time. Salisbury testified that his base salary increased "in the 1 to 5 percent range per year." Dr. Schuster assessed that Salisbury was "totally incapacitated for any substantial gainful activity." The City admitted that Salisbury's "injuries from the incident more probably than not disabled him from performing the required job duties of a Seattle police officer from the time of the incident through at least June 1, 2020." Salisbury was 54 years old at the time of the incident, and he testified that he did not have any plans to retire at the time of the incident and that he "could certainly see progressing [to] early, mid, late 60s."

¶14 At the conclusion of the Salisburys’ case in chief, the City moved to dismiss "any claim for future economic loss in the form of lost wages or however the plaintiff may want to characterize it ." (Emphasis added.) The City argued, "[T]here is no sufficient evidence in this record in the plaintiffs’ case from which a jury, without speculation, could award future economic damages." The court granted this motion, stating, "Exactitude is certainly not required, but a trier of fact may not be invited to engage in speculation or conjecture, and that is where this jury would be left were I to allow these claims to go forward." A day later, while the parties were discussing jury instructions, the court extended this ruling to past economic damages as well. Referring to the earnings statement Salisbury had offered, the court reiterated that "[t]he single data point would require the jury to engage in speculation, guess, or conjecture."

¶15 During the City's case in chief, the manager of Absence Management of the Seattle Department of Human Resources, Heather Krueger, testified that Salisbury received benefits "as a result of his [LEOFF] claim² " associated with his injury. Krueger testified that, to the date of the trial, the City had paid Salisbury $157,448.29 in time loss payments. Krueger described these payments as "a partial income replacement that is provided to workers who have been injured or sustained an illness on the job and have an allowable claim." Krueger testified that Salisbury would be eligible to receive further benefits for permanent partial disability and vocational rehabilitation services.

¶16 At the close of trial, over the Salisburys’ objection, the trial court gave a failure to mitigate instruction on the remaining claims for noneconomic damages. The court stated that because "the remaining causes of action are for noneconomic damages, it's not possible to segregate a precise amount." To support the instruction, the City cited evidence that Salisbury did not engage in vocational...