Tapken v. Spokane Cnty., 35473-3-III

Decision Date13 June 2019
Docket NumberNo. 35473-3-III,35473-3-III
CourtWashington Court of Appeals
PartiesMADELYNN M. TAPKEN, a single person, Respondent, v. SPOKANE COUNTY, Public Works/Department of Engineering & Roads, a Municipal Corporation, Appellant, CONRAD MALINAK, a single person, et al, Respondent.

FEARING, J.We address for the second time numerous issues arising from a September 28, 2011 motorcycle accident at the Waverly Y on a Spokane County rural road. We previously addressed many of the same issues after the trial court dismissed claims brought by passenger Madelynn Tapken and motorcycle operator Conrad Malinak against Spokane County for an unsafe road. We remanded for a new trial. After a second trial, a jury found all parties negligent and allocated sixty percent of the fault to Spokane County, thirty percent to Malinak, and ten percent to Tapken. The jury awarded $12,535,000 to Tapken and $35,000 to Malinak. In this second appeal, Spokane County and Madelynn Tapken assign errors to trial court rulings. We affirm all rulings except a ruling allowing Conrad Malinak to recover medical expenses.


The numerous assignments of error raised by the three parties, Spokane County, Conrad Malinak, and Madelynn Tapken, prolong this opinion. We borrow the facts from a jury trial and generally render the facts favorable to the prevailing party or, as to one assignment of error, to the party seeking a jury instruction.

No independent witness observed the September 28, 2011 motorcycle accident involving Madelynn Tapken and Conrad Malinak. Because of a head injury, Tapken retains no memory of the events of the day. Conrad Malinak holds the only percipient knowledge of the accident.

In the summer of 2011, Conrad Malinak and Madelynn Tapken met at work. After becoming acquainted, Tapken learned that Malinak owned a motorcycle. She told Malinak that she had experience riding motorcycles as she had ridden with her father and ex-boyfriends. The two agreed to ride together, and a first ride ended safely. Before the first ride, Malinak instructed Tapken to mimic his movement when he leaned one way or the other.

On September 28, 2011, Conrad Malinak and Madelynn Tapken rode on Malinak's motorcycle for a second ride. They planned to ride south from Spokane through the rolling Palouse hills to the charming farming town of Fairfield and thepastoral agriculture community of Waverly. Malinak had previously ridden in the vicinity of Fairfield and held some familiarity with the area roads. On September 28, the sun shone, no wind blew, and the temperature reached sixty degrees.

Spokane County Sheriff Sergeant David Thornburg interviewed Conrad Malinak at Spokane's Sacred Heart Medical Center the day of the accident. Malinak told Sergeant Thornburg that he had ridden the route "many times" and found the route enjoyable. Report of Proceedings (RP) (June 23, 2017) at 1297. Thornburg did not ask Malinak the number of times he traveled the route. Malinak added that he was "familiar" with the route. RP (June 23, 2017) at 1298. During trial testimony, Malinak averred that he traversed the route three or four times earlier.

On September 28, Conrad Malinak drove his motorcycle, with Madelynn Tapken at his back, south from Spokane Valley on State Highway 27 to Fairfield. Near Fairfield, Malinak turned from the state highway to a Spokane County road, South Prairie View Road, to ride southerly toward Waverly. Malinak drove at the speed limit of 45 m.p.h. As the two continued toward Waverly, they approached an intersection known by locals as the "Waverly Y." At the intersection, East Spangle Waverly Road intersects with South Prairie View Road. As one travels south on Prairie View Road, one bears to the left to continue on the road to enter Waverly. One must execute a sharp veer to the right to enter E. Spangle Waverly Road, which leads to the quiet town of Spangle.

Spokane County regulated the converging traffic at the intersection of SouthPrairie View Road and East Spangle Waverly Road with various signs. A yield sign 775 feet from the Y intersection warned a driver traveling south on Prairie View Road. Two yield signs in the intersection, one for a driver turning to the right and another for a driver veering to the left, also warned the driver. As a southbound driver passed the first yield ahead warning sign, the driver saw a large hawthorn bush on the right side of South Prairie View Road several hundred feet before the intersection. The bush obscured both the later yield sign for traffic heading right and a portion of the roadway to the right. The obstruction impeded a driver approaching from the north to gauge the sharpness of the right turn until the driver approached the large bush and intersection. No sign warned the driver to reduce speed below the posted speed limit of 45 m.p.h. In the four miles between Fairfield and the Waverly Y, Conrad Malinak encountered many curves in the roadway, each preceded by a curve warning sign and most also preceded by an advisory speed warning sign.

As Conrad Malinak with his passenger approached the Waverly Y on September 28, Malinak did not notice the two yield signs near the intersection. He did not see the yield sign on the right because the large hawthorn bush obstructed his vision. Nevertheless, he slowed to 35-40 m.p.h. in order to execute the right-hand curve onto East Spangle Waverly Road. Malinak planned to turn right at the Y, as he mistakenly believed Waverly lay to the west. As he entered the curve, Malinak leaned right to turn the motorcycle, and Madelynn Tapken mimicked his movement.

As the motorcycle entered the intersection, Conrad Malinak realized the right turn was sharper than anticipated. He estimated that even at 5 to 10 m.p.h. below the speed limit, he could not negotiate the right-hand curve safely. He abruptly braked and leaned left in a desperate attempt to change directions and to securely complete the more gradual turn left. He concluded he could keep his motorcycle on the road only by braking and leaning left.

According to Conrad Malinak, when he leaned left to turn left, Madelynn Tapken failed to follow his lean. We will detail trial testimony on this fact later. Instead of the motorcycle turning to the left, the cycle proceeded straight through the intersection, traveled in the air for fifty feet, and ended in a pit. Madelynn Tapken sustained severe injuries, including a head injury, in the crash. She became paralyzed from the chest down. Conrad Malinak sustained lesser injuries.


The injured passenger, Madelynn Tapken, sued Spokane County for an alleged unsafe road and Conrad Malinak for negligent operation of the motorcycle. Malinak cross claimed against Spokane County for his injuries. Spokane County denied the presence of an unsafe road and contended that both Malinak and Tapken acted negligently. The county contended that Tapken could have leaned, but failed to lean, left when Malinak leaned left and Tapken's failure in part caused the accident.

This appeal comes to us after a second trial. Before the first trial, the superiorcourt ruled that prior accidents occurring in 1995, 2007, and 2009 were substantially similar to Conrad Malinak's and Madelynn Tapken's accident such that evidence of those earlier accidents could be admitted to show that Spokane County knew of the alleged unsafe conditions at the Waverly Y. The superior court later reversed the evidentiary ruling and excluded the accident history after Spokane County admitted notice of the presence of the hawthorn bush.

Before the first trial, Madelynn Tapken moved for partial summary judgment on the issue of her comparative fault. Her motion claimed that no reasonable juror could conclude that she acted unreasonably. The superior court denied Tapken's motion for partial summary judgment.

After Madelynn Tapken and Conrad Malinak rested in the first trial, the superior court granted Spokane County's CR 50 motion for judgment as a matter of law. The trial court adjudged, as a matter of law, the county to be free of negligence and ruled that, as a matter of law, any alleged negligence did not proximately cause Tapken's and Conrad Malinak's injuries. The superior court also dismissed Conrad Malinak's claim for medical expenses not only because of a lack of fault on the part of Spokane County but because Malinak presented as an exhibit a summary of the bills rather than the medical bills themselves and because Malinak failed to introduce evidence that the claimed expenses were reasonable and necessary. Before the trial court, Tapken did not challenge the sufficiency of the evidence as to the county's defense of comparative fault, nor didshe move the court, under CR 50, to dismiss the defense since Spokane County had yet to present its defense.

Following the dismissal of Spokane County, Madelynn Tapken voluntarily dismissed her claim against Conrad Malinak, and she appealed the trial court's order dismissing her suit against the county. Malinak also appealed the trial court's dismissal of his claims. Malinak's notice of appeal read:

Defendant and Cross Claimant Conrad Malinak seeks review by the designated appellate court of that Order entered on September 30, 2014 Granting Judgment as a Matter of Law, and all other rulings or orders that became final upon entry of that judgment and which prejudicially affect the judgment.

Clerk's Papers (CP) at 2943.

During the first appeal, Conrad Malinak filed a stunted appeal brief that merely adopted the arguments of Madelynn Tapken with regard to the ruling that Spokane County was not negligent as a matter of law. Malinak's appeal brief did not assign error to the trial court's ruling that, as a matter of law, he failed to establish his claim for medical bills.

On appeal, this reviewing court reversed the trial court's CR 50 dismissal of Spokane County from the case and remanded the case for trial. This court concluded that Madelynn Tapken and Conrad...

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