Zukowsky v. Brown

• Decision Date: 16 October 1969
• Docket Number: No. 6--40064--II,6--40064--II
• Citation: 459 P.2d 964,1 Wn.App. 94
• Court: Washington Court of Appeals
• Parties: Clement ZUKOWSKY and Crystal Zukowsky, husband and wife, Appellants, v. George BROWN and Marilyn Brown, husband and wife, Respondents.

Page 94

1 Wn.App. 94

459 P.2d 964

Clement ZUKOWSKY and Crystal Zukowsky, husband and wife, Appellants, v. George BROWN and Marilyn Brown, husband and wife, Respondents.

No. 6--40064--II.

Court of Appeals of Washington, Division 2.

Oct. 16, 1969.

Rehearing Denied Nov. 19, 1969.

McCormick, Hoffman, Rees & Arnold, Paul Hoffman, Jr., Tacoma, for appellants.

Neal, Bonneville, Hughes & Viert, William G. Viert, Tacoma, for respondents.

PETRIE, Judge.

This is a tort action instituted by Clement and Crystal Zukowsky, husband and wife, against George and Marilyn Brown, husband and wife, to recover damages allegedly sustained by plaintiff wife on June 19, 1966, when a helm seat on which she was sitting collapsed while she was a guest passenger aboard defendant's motorboat cruising in navigable waters in Puget Sound.

Plaintiffs have appealed from a judgment based upon a general verdict of a jury in favor of defendants. Plaintiff husband, Clement Zukowsky, died subsequent to filing the appeal; and Crystal Zukowsky, administratrix of the estate of Clement Zukowsky, deceased, has been substituted herein as his personal representative. We shall hereafter refer to Crystal Zukowsky as plaintiff and to George Brown as defendant.

Plaintiff was noted 14 separate assignments of error, which, however, may be appropriately grouped into four major categories: (1) the court should not have instructed the jury on the definition of contributory negligence and on the doctrine of comparative negligence; (2) the court should have given an instruction on the doctrine of res ipsa loquitur; (3) the court should have given more explicit instructions on the standard of care which a boat owner owes to guest passengers; and (4) as part of the res gestae, the court should have permitted a witness to relate an otherwise hearsay statement attributed to defendant's teen-age son.

The record fairly reflects the following factual pattern: On June 16, 1966, defendant was the owner of a 34-foot cabin cruiser with a flying bridge. On the day in question, plaintiff husband and wife were invited to, and did, join defendant husband and wife--together with another couple--on a cruise in Puget Sound waters off Anderson Island, Washington. They were traveling at cruising speed in calm water.

For a period of time variously estimated at from 5 to 20 minutes, plaintiff Crystal Zukowsky, sat on the port helm seat--the seat collapsed--she fell approximately 2 feet to the area upon which the base of the seat had been attached--and allegedly sustained injuries. At the time of the mishap she was approximately 60 years of age and had never before been aboard defendant's boat.

Unfortunately, a somewhat lengthy word picture of the seat is necessary to appreciate the nature of the mishap. The port helm seat, a collapsible type seat known as an EEz--In seat, was first installed on the flying bridge by defendant in 1960. It has two separate parts which, for want of a better nomenclature, we shall call the 'seat assembly' and the 'base assembly'.

The 'base assembly' is mounted on a 1/2-inch plywood flooring. The assembly consists of two major parts, (1) a base flange (or bracket) which is attached to the plywood by two automotive-type, cadmium-plated, steel screws of either 3/4 inch or 7/8 inch length, and (2) an aluminum, cylindrical post (or standchion) approximately 17 inches in length, which is so attached to the flange by a pivot such that the post may be moved through an arc of 180 , stem to stern.

The 'seat assembly' is composed of two major parts, (1) a seat (and folding back rest), which is hinge-mounted to the inside port bulkhead of the flying bridge such that the seat may be raised to a horizontal position when in use and may be lowered through a 90 arc so that it basically lies against the inside bulkhead when not in use, and (2) an aluminum, cylindrical post (or stanchion) approximately 8 inches in length, which pivots on a flange attached to the underside of the seat, such that the post may be moved through an arc of 180 athwart the boat.

The seat post and the base post are so constructed that, when properly positioned for use, the seat post telescopes over the raised base post with an overlap variously estimated at from 1 1/2 inches to 2 inches. When the seat is in use, the two posts are vertical, perpendicular to the plane of the plywood flooring, with the seat approximately 23 inches above the flooring.

After the seat collapsed, one of the steel screws, which had attached the base flange to the plywood, was still in the plywood; its head had been broken off and the break was 'bright'. The other screw was no longer in the plywood, but was found immediately after the mishap with wood attached to its threads; the wood was described as 'old' or 'didn't look like fresh'; and the plywood around the screw hole was neither torn nor splintered. Plaintiff, Clement Zukowsky, indicated that the two posts had become separated; the seat assembly had resumed its normal 'down' position; the base flange, although now pulled loose from the plywood, had come to rest on its end only 1/2 inch from where it had been attached to the plywood; and the base post (still attached to the base flange) was lying on the plywood with its top pointed aft at a slight angle.

Mrs. Zukowsky explained her actions immediately prior to her fall as follows:

Q. And Picture No. 1 on the exhibit shows the seat as it is set up, is this right? A. Yes, and Mr. Brown would be opposite me, in the seat opposite. Q. He would be over here, right? A. There must be, I haven't seen the windshield, but there must a little ledge there, and I took my hands and I pushed myself, because that seat is stationary it doesn't move? Q. Right. A. And I was facing Mr. Brown and the other people in the back of the boat, but when Mr. Brown asked me to look out the window I took a hold of the winshield and turned myself around so I could see out the front of the windshield, and that is when I fell. Q. Were you turning to the front when you fell? A. I started to turn, yes. Q. And you had been kind of turned facing people in the back? A. Yes.

Several other witnesses described Mrs. Zukowsky's turning movement as 'fairly fast', or 'rather quickly', but not 'excessively sudden'. She testified her feet were dangling, but 'twisted around each other'. One witness, who was not looking at her legs when she fell, stated that some time prior to her fall, 'she pulled them around this post that holds the seat'.

Plaintiff's expert witness acknowledged that just shifting of weight on the seat would lift it; that 'it would be more liable to lift it just screw height'; and further, that lifting the seat 'the length of the telescoped part' would 'depend somewhat on the bind on it'.

Under this state of the record, we find it difficult to find substantial evidence, either that any negligence of the defendant proximately caused the mishap or that any action of the plaintiff, which fell below the standard of care required of her, proximately caused the seat to collapse.

Jurors, of course, may not speculate as to possibilities. Girson v. Carter, 76 W.D.2d 17, 454 P.2d 392 (1969). However, they may make justifiable inferences from circumstantial evidence to find negligence or proximate cause. Hernandez v. Western Farmers Ass'n, 76 W.D.2d 581, 456 P.2d 1020 (1969). In such instances, circumstantial evidence is sufficient to establish a prima facie case of negligence if it affords room for men of reasonable minds to conclude that there is a greater probability that conduct relied upon was the proximate cause of the injury than there is that it was not. Wise v. Hayes, 58 Wash.2d 106, 361 P.2d 171 (1961). It is only the rare case when the court is justified in withdrawing from the jury the issue of contributory negligence. Bauman v. Complita, 66 Wash.2d 496, 403 P.2d 347 (1965).

In the instant case, the facts are basically exoteric in nature. Hence they are quite suitable for jury comprehension. In weighing the probabilities, the jury might well have concluded--from the plaintiff's own version of her actions (augmented by embellishments supplied by other witnesses) together with the opinions expressed by her expert--that the two telescoping vertical posts became completely separated because of the plaintiff's own turning actions--and that because of such separation, the seat collapsed and she fell.

Such a conclusion would satisfy the element of proximate cause, but would it supply the element of contributory negligence--breach of her duty? Not every action by a plaintiff, even tough it be a cause of the mishap, can be characterized as negligent action. Hughey v. Winthrop Motor Co., 61 Wash.2d 227, 377 P.2d 640 (1963).

Plaintiff's duty as a guest passenger in defendant's boat is not one which is specifically defined or fixed. Rather, such duty is usually defined as a duty to use that degree of ordinary care which a reasonably prudent person would exercise for her own safety under...