Wick v. Clark County, 19203-9-II

• Decision Date: 16 May 1997
• Docket Number: No. 19203-9-II,19203-9-II
• Citation: 936 P.2d 1201,86 Wn.App. 376
• Court: Washington Court of Appeals
• Parties: William WICK, as Guardian Ad Litem of Benjamin I. Wick, a minor, Appellant/Cross-respondent, v. CLARK COUNTY, a municipal subdivision of the State of Washington, Respondent/Cross-appellant, and Ronald D. Almer and Jane Doe Almer, husband and wife, Respondents. CLARK COUNTY, a municipal subdivision of the State of Washington, Respondent/Cross-appellant, v. William WICK, as Guardian Ad Litem of Benjamin I. Wick, a minor; Appellant/Cross-respondent, and Ronald D. Almer and Jane Doe Almer, husband and wife, Respondents.

Page 376

86 Wn.App. 376

936 P.2d 1201

William WICK, as Guardian Ad Litem of Benjamin I. Wick, a minor, Appellant/Cross-respondent, v. CLARK COUNTY, a municipal subdivision of the State of

Washington, Respondent/Cross-appellant,

and

Ronald D. Almer and Jane Doe Almer, husband and wife, Respondents.

CLARK COUNTY, a municipal subdivision of the State of

Washington, Respondent/Cross-appellant, v. William WICK, as Guardian Ad Litem of Benjamin I. Wick, a

minor; Appellant/Cross-respondent,

and

Ronald D. Almer and Jane Doe Almer, husband and wife, Respondents.

No. 19203-9-II.

Court of Appeals of Washington Division 2.

May 16, 1997.

E. Bronson Potter, Clark County Pros. Atty. Office, Vancouver, Donald Arthur Esau, Vancouver, for Respondent Cross-Appellant

William Franklin Nelson, Horenstein & Duggan Ps, Vancouver, for Appellant Cross-Respondent.

ARMSTRONG, Judge.

Wick appeals a jury verdict finding

the County faultless in a collision between his seven-year-old son and a car that had just crested a steep hill that lacked warning signs. First, Wick contends the trial court erroneously instructed that the County's duty was only to those exercising ordinary care for their own safety; he argues that this treats contributory negligence as a total bar to recovery, rather than as a reduction in plaintiff's recovery. Second, he asserts that because the County refused to stipulate before the jury that feasibility was not an issue, the trial court should have admitted evidence that the County put up warning signs after the accident. We affirm, holding that the jury was properly instructed on the County's duty, and that the trial court did not abuse its discretion in refusing the evidence of later repairs.

FACTS

During the afternoon of March 20, 1987, Ronald D. Almer was driving east on NE 119th Street, a paved, two-lane street in Clark County. The posted speed limit was 35 m.p.h. Near the accident scene the road goes over a steep hill that limits the sight distance of drivers. There were no warning signs on the hill.

As Almer crested the hill, he saw seven-year-old Benjamin Wick on a bicycle in the east-bound lane. Almer slammed on his brakes and swerved to the left, but his left front fender hit Benjamin. Benjamin suffered severe internal injuries.

About three weeks after the accident, the County posted a sign on the hill reading, "Limited Sight Distance 20 m.p.h." Later, because of a change in federal regulations, the County changed the sign to read "Impaired Sight Distance."

Wick alleged the County was negligent for (1) failing to maintain a reasonably safe street, (2) failing to warn of limited sight distance, and (3) allowing a dangerous hill to exist. The County claimed, among other things, that the accident resulted from Benjamin's negligence and the negligence of his parents.

At trial, Wick's expert, a highway traffic engineer, testified that the posted speed limit was too high because of the limited sight distance caused by the steepness of the hill. He concluded that the road was inherently dangerous and deceptive for people exercising ordinary care, and that the County should have regraded the hill and installed warning signs.

Two experts testified for Clark County. One, a traffic safety engineer, testified that warning signs, with or without speed advisories, are not effective in reducing speed. Although not admitting that the hill was unsafe, he did concede that regrading would make it safer.

The County's second expert, a Cowlitz County road engineer, concluded that: (1) the hill was reasonably safe for drivers using it in a proper manner and exercising ordinary care for their own safety; (2) limited sight distance signs are generally ineffective; and (3) Clark County acted reasonably by not posting warning signs on the hill.

By special verdict form, the jury found that Clark County, Almer, and Jeanette Wick, Benjamin's mother, were not negligent.

ANALYSIS

I Jury Instructions

Wick assigns error to a portion of Instruction 8: "With respect to Clark County, negligence means the failure to exercise ordinary care in the maintenance of its public roads to keep them in a condition that is reasonably safe for ordinary travel by persons using them in a proper manner and exercising ordinary care for their own safety." (emphasis added). ¹

Wick essentially argues that Instruction 8 would bar Benjamin's recovery if the jury were to find him negligent. ² Wick's solution, in his Proposed Instruction 28, eliminated the phrase "and exercising ordinary care for their own safety." ³ In support of eliminating the "ordinary care" language, Wick cites McCluskey v. Handorff-Sherman, 125 Wash.2d 1, 882 P.2d 157 (1994), and Ruff v. County of King, 125 Wash.2d 697, 887 P.2d 886 (1995). McCluskey described the government's duty to make the highways safe as follows: "Under the common law, the State of Washington has a duty to exercise ordinary care in the repair and maintenance of its public highways, keeping them in such a condition that they are reasonably safe for ordinary travel by persons using them in a proper manner." McCluskey, 125 Wash.2d at 6, 882 P.2d 157 (citing Meabon v. State, 1 Wash.App. 824, 827, 463 P.2d 789 (1970)); see also Ruff, 125 Wash.2d at 704, 887 P.2d 886 (citing Stewart v. State, 92 Wash.2d 285, 299, 597 P.2d 101 (1979); Provins v. Bevis, 70 Wash.2d 131, 138, 422 P.2d 505 (1967); Wojcik v. Chrysler Corp., 50 Wash.App. 849, 854, 751 P.2d 854 (1988)).

Wick argues that in McCluskey and Ruff the Supreme Court recognized an inconsistency between comparative negligence and the latest edition of Washington Pattern Jury Instruction (WPI) 140.01, which retains the "exercising ordinary care for their own safety" language. WPI (3d ed. Supp.1994). To reconcile the inconsistency, Wick suggests, the Court modified the duty of a governmental agency to users of its roads, limiting it only to those using the highway in a proper manner. This, according to Wick, extends the duty to negligent users but allows the doctrine of comparative negligence to reduce the award.

We disagree for several reasons. First, there is no evidence the Washington Supreme Court intended such a change. The language cited by Wick in each case is dicta; the language of WPI 140.01 was not at issue in either case. Second, McCluskey and Ruff rely on cases that used "exercising ordinary care for their safety" or similar language. Meabon, 1 Wash.App. at 827, 463 P.2d 789 (cited in McCluskey, 125 Wash.2d at 6, 882 P.2d 157); Stewart, 92 Wash.2d at 299, 597 P.2d 101 (cited in Ruff, 125 Wash.2d at 704, 887 P.2d 886); Provins, 70 Wash.2d at 138, 422 P.2d 505 ("[E]xercise ordinary care to keep its public ways in a safe condition for ordinary travel.") (cited in Ruff, 125 Wash.2d at 704, 887 P.2d 886); Wojcik, 50 Wash.App. at 854, 751 P.2d 854 ("A county has a duty to maintain its highways in a reasonably safe condition for its users.") (cited in Ruff, 125 Wash.2d at 704, 887 P.2d 886).

More importantly, the Supreme Court has rejected Wick's argument. In Hansen v. Washington Natural Gas, the Court stated:

The Court of Appeals further held that the rule expressed in Berglund [ ⁴] and Nelson [ ⁵] [duty limited to those exercising due care for their safety] is no longer applicable since the adoption of comparative negligence in this state. This holding is erroneous. The adoption of comparative negligence does not create a new liability where none previously existed. Rather, recovery is now permitted where it was previously denied after liability has been established. The doctrine of comparative negligence does not enhance duty. It merely removes the bar to recovery when the plaintiff has been negligent.

Hansen v. Washington Natural Gas Co., 95 Wash.2d 773, 778, 632 P.2d 504 (1981) (citations omitted); see also McKee v. City of Edmonds, 54 Wash.App. 265, 267-69, 773 P.2d 434 (1989); WPI 140.01, Comment at 136 (3d ed. Supp.1994) ("Duty, as defined in this instruction, is not determined by the negligence, if any, of a plaintiff.").

Finally, in a recent case concerning State liability for failing to post adequate speed warnings, Division Three of this court used the "ordinary care" standard. Gunshows v Vancouver Tours and Transit, Ltd., 77 Wash.App. 430, 435, 891 P.2d 46 (1995). We find no error in the instructions on the County's duty.

II Motion in Limine

We review the court's ruling on a motion in limine for an abuse of discretion. See Goodwin v. Bacon, 127 Wash.2d 50, 54, 896 P.2d 673 (1995); see also Haysom v. Coleman Lantern Co., Inc., 89 Wash.2d 474, 484-85, 573 P.2d 785, 93 A.L.R.3d 86 (1978) (no abuse of discretion to refuse evidence of subsequent product changes to prove feasibility). A trial court abuses its discretion if its ruling is "manifestly unreasonable or based upon untenable grounds or reasons." Goodwin, 127 Wash.2d at 54, 896 P.2d 673 (quoting Davis v. Globe Mach. Mfg. Co., Inc., 102 Wash.2d 68, 77, 684 P.2d 692 (1984)).

Pursuant to ER 407, the County moved to exclude evidence that it had posted "Limited" or "Impaired Sight Distance" signs and a 20 m.p.h. speed limit sign after the accident. Wick opposed the motion, arguing that feasibility was at issue. When the County replied that it did not dispute feasibility, Wick demanded a stipulation before the jury. But the County refused. The trial court then granted the motion, ruling that because the County had not controverted feasibility, the evidence was not admissible. The court also concluded that the County had no affirmative duty to enter into a stipulation before the jury. Wick assigns error to the trial court's rulings on the motion in limine and the court's refusal to instruct that the County stipulated to feasibility. ⁶

A. Feasibility

Wick first argues that the subsequent placement of signs was admissible to prove the feasibility of making the street safer. He cites Meabon v. State which held that "[e]vidence of subsequent repair is admissible if feasibility is a...