Wright v. Engum
| Decision Date | 18 August 1994 |
| Docket Number | No. 60999-3,60999-3 |
| Citation | 124 Wn.2d 343,878 P.2d 1198 |
| Court | Washington Supreme Court |
| Parties | James David WRIGHT, Sr., as Personal Representative of the Estate of Theresa McKee, Deceased, Appellant, v. Raymond ENGUM and "Jane Doe" Engum, and their marital community, and Pro Express, Inc., a Washington Corporation, Respondents. |
The Davis Firm, Susan R. Davis, Donald K. Davis, Seattle, for appellant.
Helsell, Fetterman, Martin, Todd & Hokanson, Jerry E. Thonn, Robert N. Gellatly, Seattle, for respondents.
On February 22, 1989, Theresa McKee, a blind pedestrian, was struck and killed by a truck driven by Defendant Raymond Engum and owned by Defendant Pro Express, Inc. In this case, Plaintiff James David Wright, Sr., as personal representative for the estate of Theresa McKee, appeals a King County Superior Court verdict holding that the Defendants were not negligent. This court accepted certification from the Court of Appeals and now affirms the jury verdict.
The accident occurred at approximately 2:30 p.m. at the intersection of Dexter Avenue North and Roy Street in Seattle, Washington. Defendant Engum, a 62-year-old Pro Express employee with over 35 years of experience, was driving a 1979 Ford 80,000-pound-capacity tractor/trailer with a 45-foot trailer. He had just delivered a load of fertilizer to the Seattle Parks Department about a block from the accident site. Engum was stopped at a flashing red light and was pointed west on Roy Street. At this location, Dexter has three northbound lanes and two southbound lanes separated by a double yellow line. The outside northbound lane of Dexter is normally used for parking. The traffic on Dexter is controlled by a flashing yellow light. Engum intended to make a right turn and proceed north on Dexter. He made a complete stop, turned on his right turn signal, and waited for traffic on Dexter to clear. While stopped, he noticed a female pedestrian, McKee, standing to his right on the northeast corner of Roy and Dexter. She was near the curb, her body was facing west, but she was looking over her left After he approached the body, Engum noticed a white cane on the road beside the body. He testified that he did not see the cane before the accident and made "no connection with her being blind or needing a white cane at the time when she was standing on the corner". Report of Proceedings, at 359. According to her father, McKee had owned a collapsible cane which she used when she was unsure of the terrain she was negotiating, but not at all times. McKee was able to see large objects as blurry forms and was capable of traveling on her own. There were no additional witnesses to the accident. Police officers investigating the accident offered the opinion that the impact occurred near the back of the gas tank on the right rear side of the truck about 10 feet from the front and about 18 to 20 feet from the curb. The police later examined the truck and found it in good working order.
shoulder directly at Engum's truck. Engum could see her left side. She was wearing a pair of blue jeans, a jacket, a head scarf, and dark sunglasses. According to Engum, it appeared that McKee was waiting to cross Dexter; however, she made no attempt to do so. Instead, she remained on the sidewalk, looking over her left shoulder at Engum's truck. He checked traffic in the northbound and southbound lanes and then looked again at McKee. She made no attempt to cross the street. Believing that McKee was waiting for him to turn right before she crossed the street, Engum released the air brakes, let out the clutch, and drove forward into the intersection. Because of the length of the truck, Engum drove out into the intersection before beginning his right turn in order to avoid running over the curb with the trailer. As he turned, a portion of the truck was actually in a southbound lane. About three-quarters of the way through the turn, he felt a bump and thought he had run over a "turtle" dividing north and southbound lanes. He looked in his mirror and saw the turtles, but could not determine how he could have hit them. As Engum straightened out the truck, he looked again in his mirror and saw McKee's body lying in the street between the second and third northbound lanes.
Plaintiff brought suit for negligence and also claimed that Defendants were strictly liable under the state White Cane Law, RCW 70.84.040. Defendants alleged comparative negligence on the part of the Plaintiff and also argued that the statute did not create strict liability. At trial, Plaintiff moved for a directed verdict asserting that, under Washington's White Cane Law, drivers involved in accidents with blind pedestrians are held strictly liable. The court denied the motion, holding that a driver involved in a collision with a blind pedestrian is liable under the terms of RCW 70.84.040 only if the driver knew, or reasonably should have known, that the pedestrian was blind.
Both sides presented expert testimony regarding the amount of time that McKee was visible to Engum while he was turning his truck. The jury found for the Defendants. Plaintiff moved for a judgment notwithstanding the verdict (JNOV) which the court again denied. Plaintiff then filed a timely appeal to the Court of Appeals and this court accepted certification.
In this appeal, Plaintiff asserts that RCW 70.84.040 imposes strict liability and that the trial court erred by instructing the jury that it must find that the Defendant either saw, or in the exercise of ordinary care should have seen, Theresa McKee carrying the white cane in the street. Plaintiff also argues that the trial court erred in denying his motions for a directed verdict and a JNOV under both strict liability and negligence theories.
Plaintiff first challenges the trial court's instruction regarding notice. Instruction 14 and substitute instruction 14 advised that in order to find liability the jury must find that Mr. Engum either saw or, in the exercise of ordinary care, should have seen Theresa McKee carrying the white cane in the street. Plaintiff asserts that RCW 70.84.040 holds motorists who injure blind pedestrians strictly liable and that negligence concepts such as notice and ordinary care are inapplicable.
RCW 70.84.040, the relevant portion of Washington's White Cane Law, provides:
The driver of a vehicle approaching a totally or partially blind pedestrian who is carrying a cane predominantly white in color (with or without a red tip), a totally or partially blind or hearing impaired pedestrian using a guide dog, or an otherwise physically disabled person using a service dog shall take all necessary precautions to avoid injury to such pedestrian. Any driver who fails to take such precaution shall be liable in damages for any injury caused such pedestrian. It shall be unlawful for the operator of any vehicle to drive into or upon any crosswalk while there is on such crosswalk, such pedestrian, crossing or attempting to cross the roadway, if such pedestrian indicates his intention to cross or of continuing on, with a timely warning by holding up or waving a white cane, using a guide dog, or using a service dog. The failure of any such pedestrian so to signal shall not deprive him of the right of way accorded him by other laws.
RCW 70.84.040 was adopted in two parts. The first part charges drivers encountering blind pedestrians with an enhanced duty of care--the duty to take "all necessary precautions". RCW 70.84.040. The statute directs that drivers who fail to exercise this enhanced care and thereby cause injury to a blind pedestrian "shall be liable" in damages. RCW 70.84.040. The Legislature added the first part of the current statute in 1969 as an additional protection for blind pedestrians. Laws of 1969, ch. 141, § 4. This enhanced protection is triggered by the presence of a person carrying a white cane or in the company of a guide dog. The statute provides that the blind pedestrian carry "a cane predominantly white in color" or use a guide dog. RCW 70.84.040.
The second part of the statute is the original statute adopted in 1945. Laws of 1945, ch. 105, §§ 1, 2. This part of the statute makes it unlawful to enter a crosswalk if a blind pedestrian "indicates his intention to cross" by waving a white cane or by using a guide dog. RCW 70.84.040. In the absence of a signal from the blind pedestrian a driver may proceed, held only to the standard of care described in the first part of the statute. While failure of the blind person to signal deprives that person of the "extra" right of way, the blind person will have the right of way accorded sighted persons. For example, if a "walk" signal grants pedestrians the right of way at an intersection, a blind pedestrian's failure to wave her white cane "shall not deprive" the pedestrian of the right of way granted by the signal. RCW 70.84.040. The Plaintiff contends that the Legislature intended to impose strict liability when it adopted the 1969 amendment.
Washington courts will not construe a statute to impose strict liability absent a clear indication that the Legislature intended to do so. Hyatt v. Sellen Constr. Co., 40 Wash.App. 893, 897, 700 P.2d 1164 (1985). In support of his position, the Plaintiff points to the statutory language that drivers who fail to take "all necessary precautions" "shall be liable" in damages. RCW 70.84.040. This, he contends, is similar to language used in other Washington statutes that have been construed to hold violators strictly liable regardless of notice. Specifically, Plaintiff cites RCW 16.08.040 which provides that the dog owner "shall be liable" when the owner's dog bites a person lawfully present on the property. This statute has been construed to create "statutory strict liability". Beeler v. Hickman, 50 Wash.App. 746, 751-52, 750 P.2d 1282 (1988). Unlike RCW 70.84.040, however, RCW 16.08.040 addresses the issue of knowledge, stating...
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