Walter v. Spee W. Constr. Co.

• Decision Date: 28 February 2022
• Docket Number: 82139-3-I
• Parties: David WALTER, Respondent, v. SPEE WEST CONSTRUCTION CO., a Washington Corporation and general contractor, Appellant, Fidelity & Deposit Co of MD, Defendant.
• Court: Washington Court of Appeals

504 P.3d 878

David WALTER, Respondent,

v.SPEE WEST CONSTRUCTION CO., a Washington Corporation and general contractor, Appellant,Fidelity & Deposit Co of MD, Defendant.

No. 82139-3-I

Court of Appeals of Washington, Division 1.

FILED February 28, 2022

R. Daniel Lindahl, Bullivant Houser Bailey PC, 1 Sw Columbia St. Ste. 800, Portland, OR, 97204-4022, Lori Kay O'Tool, Daniel Walter Rankin, Preg O'Donnell & Gillett PLLC, 901 5th Ave. Ste. 3400, Seattle, WA, 98164-2026, for Appellant.

Joshua Bruce Trumbull, Emily Anne Harris, JBT & Associates, P.S., Ben W. Wells, Ben Wells & Associates, 106 E Gilman Ave., Arlington, WA, 98223-1017, Brian James Fisher, Department of Revenue, 2101 4th Ave. Ste. 1400, Seattle, WA, 98121-2300, for Respondent.

PUBLISHED OPINION

Smith, J.

¶1 David Walter was working in a trench at a construction site when an excavator bucket crushed his leg. He sued Spee West Construction Co. for negligence, and a jury found that Spee West's negligence was a proximate cause of Walter's injury, that Walter's non-economic damages totaled $4.5 million, and that Walter was 10 percent contributorily negligent. Spee West appeals, challenging the court's decision not to give an implied assumption of the risk jury instruction and its decision to give a lighting-up instruction. Because the assumption of the risk instruction was not warranted and the lighting-up instruction was supported by substantial evidence, we affirm.

FACTS

¶2 In April 2018, Spee West was working on a construction project at Mt. Si High School, and subcontracted with Continental Dirt Contractors for utilities installation. Walter, who had 15 years of construction experience, was offered a job as a pipe-layer for Continental Dirt and began work on April 11. On that day, he met with his foreman and the other members of the Continental Dirt crew, and worked most of the day with Scott White, an excavator operator, fixing cracks in the sewer line at an excavation site.

¶3 On Walter's second day on the job, he again worked with White, digging a second excavation site to install a plug in the sewer line. Walter finished that project while White moved to a third site, and then Walter went and joined him. At the third excavation site, the goal was to remove a sewer line. White used the excavator to dig down to the sewer line and Walter helped install a trench box, a piece of equipment used to protect workers from a possible trench cave-in. The trench box consisted of two eight feet tall side panels separated by spreader bars used to keep the walls apart. Once the trench box was installed, Walter's foreman told him to go into the trench to dig down and install a pump. Walter got into the trench and began digging at the farthest point in the trench from the excavator, where the concrete column from under a manhole served as a wall. He dug out a pile of debris and signaled for White to remove it, which White did.

¶4 When White brought the excavator bucket back, Walter signaled for it to go down, anticipating that White would continue digging at the other end of the trench, closer to the excavator. Instead, White brought the bucket all the way down and smashed it into the concrete pipe. Smashing the concrete and removing it was the planned method for removing the sewer line, but Walter had not realized the plan until White brought the bucket down.¹ Once Walter saw what White was doing, he "got onboard." White brought the bucket up again, and Walter stepped back against the spreader bars at the end of the trench box, in a place where he could see and be seen by White, and signaled for the bucket to come closer. Walter testified as to what happened next: "so the bucket had come up, it's coming in. And then I told him, ‘Down,’ and I told him ‘Down, down.’ And when I glanced up to see if he was looking at me, it looked like he was looking at [the excavator bucket's] teeth, not me." The bucket continued coming closer and started crushing Walter's legs against the spreader bars. Walter began feeling a "terrible" pain and started screaming until the pressure of the bucket released.

¶5 White, the only other witness to this event, testified that he could not see Walter at the time of the accident, that he was looking at the front of his bucket, and that he thought it was the curling of the bucket, not a movement forward, that crushed Walter's legs. He also testified that the work had been proceeding safely up until that point and that there was no reason for Walter to feel unsafe in the thirty minutes leading up to the injury.

¶6 Following the accident, Walter was taken to the emergency room and stayed in the hospital for three days before being discharged with a knee brace and crutches. An MRI² indicated a hole in the cartilage behind his kneecap, a tear on the meniscus

, bruising of the bones, fluid, and muscle strains. Walter's pain did not improve with physical therapy and he was referred to an orthopedic surgeon. Walter had surgery in December 2018, which helped, but his pain continued to get worse. Walter was eventually cleared to return to work in June 2019, but had to take a job as an excavator operator, rather than a pipe-layer, because of the pain in his knee.

¶7 In December 2019, Walter sued Spee West for negligence. The case proceeded to a jury trial in September 2020. Evidence at trial established that standard procedure is for the person in the trench to direct the excavator with hand signals and that the excavator operator is supposed to stop moving the bucket if they lose sight of the hand signals. The parties introduced evidence of certain abnormalities at the construction site—the trench box was at an angle, not level; White was using a larger than usual excavation bucket—but ultimately Walter's theory of the case was that Spee West, through White, was negligent through its failure to follow Walter's hand signals and continuing to move the excavator without looking at his hand signals.

¶8 Walter's medical expert, Dr. David Spanier, testified that the accident banged the bones in Walter's left knee together, causing bruising of the bone and a hole in the cartilage behind his left kneecap which was the source of Walter's pain. Dr. Spanier also testified that the accident caused a tear in Walter's meniscus that caused his knee to lock and buckle, but that this problem had ultimately been resolved with surgery. Spee West's medical expert, Dr. Alan Brown, opined that Walter's pain was probably not related to the excavator accident. Dr. Brown also testified that the cartilage defect had been present since a 2005 soccer injury and that the defect was not caused by the 2018 accident.

¶9 At the end of trial, Spee West proposed an implied assumption of the risk jury instruction. The court declined to give the instruction, finding that there was not substantial evidence that Walter had released Spee West from its duty of care. Over Spee West's objection, the court did give the jury a lighting-up instruction, which provided,

¶10 If your verdict is for the [p]laintiff, and if you find that:

(1) before this occurrence the [p]laintiff had a bodily or mental condition that was not causing pain or disability; and

(2) because of this occurrence the pre-existing condition was lighted up or made active,

Then you should consider the lighting up and any other injuries that were proximately caused by the occurrence.

¶11 The jury found that Spee West was negligent, that its negligence was a proximate cause of injury to Walter, and that Walter's non-economic damages totaled $4.5 million. It also found that Walter was negligent and that 10 percent of the negligence was attributable to Walter.

¶12 Spee West appeals.

ANALYSIS

Standard of Review

¶13 "The general test for reviewing jury instructions is whether the instructions, read as a whole, allow counsel to argue their theory of the case, are not misleading, and properly inform the trier of fact of the applicable law." Kirk v. Wash. State Univ., 109 Wash.2d 448, 460, 746 P.2d 285 (1987). We review alleged legal errors in a jury instruction de novo. In re Det. of Taylor-Rose, 199 Wash. App. 866, 880, 401 P.3d 357 (2017). However, "[w]e review a trial court's decision to give a requested jury instruction for an abuse of discretion." Fox v. Evans, 127 Wash. App. 300, 304, 111 P.3d 267 (2005). The court should instruct the jury on theories that are supported by evidence, but if a theory lacks substantial evidence, the court must not instruct the jury on it. State v. Hoffman, 116 Wash.2d 51, 111, 804 P.2d 577 (1991) ; Fergen v. Sestero, 174 Wash. App. 393, 397, 298 P.3d 782 (2013), aff'd, 182 Wash.2d 794, 346 P.3d 708 (2015). "Substantial evidence" in this context means that the theory " ‘rise[s] above speculation and conjecture.’ " Fergen, 174 Wash. App. at 397, 298 P.3d 782 (quoting Bd. of Regents of the Univ. of Wash. v. Frederick & Nelson, 90 Wash.2d 82, 86, 579 P.2d 346 (1978) ). In evaluating whether substantial evidence supports an instruction, we view the evidence in the light most favorable to the party requesting the instruction. State v. Fernandez-Medina, 141 Wash.2d 448, 455-56, 6 P.3d 1150 (2000). "[A]n erroneous jury instruction is not grounds for reversal unless it affects or presumptively affects the outcome of the trial." Torno v. Hayek, 133 Wash. App. 244, 253, 135 P.3d 536 (2006).

Implied Primary Assumption of Risk Instruction

¶14 Spee West challenges the court's decision to not instruct the jury on implied primary assumption of the risk. We conclude that substantial evidence did not support the instruction, and that therefore, the court did not err by not giving it.

¶15 Implied primary assumption of the risk is a bar to recovery in cases where the "plaintiff consented—before any act by the defendant—to relieve the defendant of any duty regarding a specific known hazard." Lascheid v. City of Kennewick, 137 Wash. App. 633, 641, 154 P.3d 307 (2007). Unlike contributory negligence, wherein a person's unreasonable assumption of...