Walker v. State

• Court: Washington Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Walker v. State, 121 Wn.2d 214, 848 P.2d 721 (Wash. 1993)
• Decision Date: 01 April 1993
• Docket Number: No. 59922-0
• Parties: Delores J. WALKER, individually and as executrix of the Estate of Robert J. Walker, deceased; and Continental Baking Company, Petitioners, v. The STATE of Washington; Clallam County; and The Port of Port Angeles, Respondents. En Banc

Page 214

121 Wn.2d 214

848 P.2d 721

Delores J. WALKER, individually and as executrix of the Estate of Robert J. Walker, deceased; and Continental Baking Company, Petitioners, v. The STATE of Washington; Clallam County; and The Port of Port Angeles, Respondents.

No. 59922-0.

Supreme Court of Washington,

En Banc.

April 1, 1993.

Reconsideration Denied May 21, 1993.

Lembhard G. Howell, Seattle, for petitioners.

Lee, Smart, Cook, Martin & Patterson, Duncan K. Fobes, Karr, Tuttle & Campbell, Steven V. Lundgren, Steven D. Robinson, Seattle, for respondents.

Bryan P. Harnetiaux, Gary N. Bloom, Spokane, amicus curiae for petitioners on behalf of Washington State Trial Lawyers Ass'n.

PER CURIAM.

Delores Walker petitions for review of a Court of Appeals decision ordering a new trial in her wrongful death action against the State, Clallam County, and the Port of Port Angeles. The Court of Appeals agreed with Ms. Walker that a new trial was necessary because two of the trial court's jury instructions were erroneous. The court rejected her challenges to other instructions and to the trial court's evidentiary rulings, however, and refused her request to limit the new trial to the issues of contributory negligence and damages. Walker v. State, 67 Wash.App. 611, 837 P.2d 1023 (1992). In her petition for review, Ms. Walker renews those of her arguments which the Court of Appeals rejected and also contends the court erred by remanding for a retrial on all issues. Respondents on the other hand contend that the Court of Appeals erred in ordering a new trial at all. We now grant review, reverse the Court of Appeals decision granting a new trial, and reinstate the jury's verdict.

Ms. Walker is the widow of Robert Walker and the personal representative of his estate. Robert was killed when the truck he was driving, in the early morning of October 7, 1985, left Highway 101 and struck a tree. Ms. Walker and Robert's employer brought the present action against the jurisdictions responsible for the design, construction, and maintenance of the portion of the highway on which the accident occurred. The plaintiffs' theory was that Robert had pulled to the right to let a car behind him pass; then, disoriented by the absence of road markings, he drove off the road. The defendants' theory, which they supported by offering the testimony of Dr. William DeMent, was that Robert's truck left the road because he negligently fell asleep at the wheel.

The jury found the defendants had been negligent, but that 70 percent of the plaintiffs' damages were attributable to Robert Walker's own negligence. On appeal, Ms. Walker assigned error to the court's instructions 15, 17, 18, 19, and 20 and to several evidentiary rulings. The Court of Appeals held that Ms. Walker failed to preserve any objection to instruction 15, found no evidentiary errors, and rejected Ms Walker's challenges to instructions 17 and 18. The court held that instructions 19 and 20 were erroneous, however, and on this basis remanded for a new trial.

Ms. Walker contends that instruction 18 ¹ improperly treats contributory negligence as a complete bar to recovery. Her only objection to instruction 18 at trial, however, was that "the last line or two" of the instruction duplicated instruction 17 and therefore "unduly emphasizes the other side's case." Report of Proceedings, at 1893. CR 51(f) requires the party objecting to an instruction to "state distinctly the matter to which he objects and the grounds of his objection, ..." The purpose of this rule is "to clarify ... the exact points of law and reasons upon which counsel argues the court is committing error about a particular instruction." Stewart v. State, 92 Wash.2d 285, 298, 597 P.2d 101 (1979). "The pertinent inquiry on review is whether the exception was sufficient to apprise the trial judge of the nature and substance of the objection." Crossen v. Skagit Cy., 100 Wash.2d 355, 358, 669 P.2d 1244 (1983). If an exception is inadequate to apprise the judge of certain points of law, " 'those points will not be considered on appeal.' " Crossen at 359, 669 P.2d 1244 (quoting Stewart, 92 Wash.2d at 298, 597 P.2d 101).

Ms. Walker's objection to instruction 18 failed to apprise the trial judge of her present contention that the instruction erroneously treats contributory negligence as a complete bar to recovery. This court therefore will not consider Ms. Walker's contention that instruction 18 misstated the law, nor should the Court of Appeals have done so. Stewart at 298, 597 P.2d 101; Crossen, 100 Wash.2d at 359, 669 P.2d 1244. ²

Ms. Walker also assigns error to the trial court's admission of Dr. DeMent's opinion testimony. She claims respondents laid an inadequate foundation for this testimony and that the evidence was more prejudicial than probative. Since trial counsel made only the former objection, only that objection is preserved for appeal. ER 103(a)(1) (must state specific ground of objection); State v. Mak, 105 Wash.2d 692, 719, 718 P.2d 407 (1986) (party who objects on one ground at trial may not raise a different ground on appeal); State v. Ferguson, 100 Wash.2d 131, 138, 667 P.2d 68 (1983) (same).

The decision whether to admit expert testimony under ER 702 is within the discretion of the trial court and will not be disturbed absent a showing of an abuse of that discretion. State v. Swan, 114 Wash.2d 613, 655, 790 P.2d 610 (1990); State v. Mak, supra 105 Wash.2d at 715, 718 P.2d 407. It is an abuse of discretion to admit such testimony if it lacks an adequate foundation. Safeco Ins. Co. v. McGrath, 63 Wash.App. 170, 179, 817 P.2d 861 (1991). That is not the situation here, however. Dr. DeMent's opinion did not rest solely on scientific studies. He testified that he reviewed the statement of a driver of the car following Robert Walker's truck, the investigating officer's report, a toxicology report, a videotape of the highway, and several photographs. Dr. DeMent's opinion that Robert Walker fell asleep at the wheel was based on the doctor's familiarity with the circumstances of the accident as well as his knowledge of scientific studies. The Court of Appeals properly found no abuse of discretion in the admission of this testimony.

In their answer to the petition, respondents ask this court to review the Court of Appeals' holdings regarding instructions 19 and 20 ³. See RAP 13.4(d). These instructions describe statutory duties, the violation of which could constitute negligence per se. The court held that instruction 19 was not supported by the evidence and that instruction 20 misstated the law. Walker v. State, supra 67 Wash.App. at 617-18, 837 P.2d 1023. We agree with respondents that both of...