DO NOT CITE.
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 16688-1-III
Title of Case: James Danielson, et al
v.
Steven N. Reinke, et ux, et al
File Date: 02/09/1999
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Chelan County
Docket No: 95-2-00166-6
Judgment or order under review
Date filed: 05/13/1997
Judge signing: Hon. John E. Bridges
JUDGES
------
Authored by Frank L. Kurtz
Concurring: John A. Schultheis
Stephen M. Brown
COUNSEL OF RECORD
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Counsel for Appellant(s)
Gordon R. Tobin
1380 112th Avenue NE
Suite 300
Bellevue, WA 98004-3759
Paul L. Stritmatter
Stritmatter Kessler
413 8th St
Hoquiam, WA 98550
Keith L. Kessler
Stritmatter Kessler Whelan Withey
413 8th St
Hoquiam, WA 98550
Garth L. Jones
Stritmatter Kessler Whelan Withey
407 8th St
Hoquiam, WA 98550-3692
Ray W. Kahler
Stritmatter Kessler
407 8th St
Hoquiam, WA 98550-3607
Counsel for Respondent(s)
Robert C. Tenney
Meyer Fluegge & Tenney
P.O. Box 22680
Yakima, WA 98907
Jeffrey M. Kreutz
Meyer Fluegge & Tenney
230 S 2nd St
PO Box 22680
Yakima, WA 98907
Counsel for Other Parties
Luanne Nelson (Appearing Pro Se)
Official Court Reporter
PO Box 880
Wenatchee, WA 98807
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAEL
)
Plaintiff, )
) Division Three
JIM DANIELSON, as Personal ) Panel Five
Representative of the Estates )
of JAMES MILTON
RAE
)
Appellant, )
) UNPUBLISHED OPINION
v. )
)
STEVEN N. REINKE and DELORES A. )
REINKE, husband and wife, d/b/a )
S & D TRUCKING, )
)
Respondents. ) FILED
KURTZ, J. - We are asked to decide whether substantial justice is done
if a jury in a civil case misunderstands its instructions. After a verdict
for the defendant, the presiding juror complained that jurors were confused
by the definition of proximate cause and the interplay between proximate
cause and contributory negligence. In a hearing on the plaintiff's motion
for a new trial, the court considered juror affidavits and ruled that case
law prevented vacation of the judgment on the basis of juror confusion. On
appeal, we address whether the trial court may consider affidavits
regarding the jurors' understanding of the instructions and special verdict
form, whether juror confusion regarding the above may be the basis for a
new trial under CR 59(a)(9), and whether a proposed jury instruction was
necessary to argue the plaintiff's case. Answering all questions in the
negative, we affirm.
FACTS
James Danielson, as personal representative of the estates of James
and Judith Coe, brought this wrongful death action against Steven and
Delores Reinke and their trucking company. The Coes were killed when their
motorcycle was crushed by the Reinkes' truck and trailer. Evidence at
trial suggested negligence on the part of both parties. The jury found
that the Reinkes were negligent, but that their negligence was not a
proximate cause of the Coes' deaths. Although the jury was polled and
declared the verdict accurate, the jury foreperson indicated during the
exit conference that the jurors were hampered by (1) the special verdict
form, (2) failure to understand proximate cause, and (3) failure to
understand the interplay of proximate cause and contributory negligence.
Mr. Danielson moved for a new trial, arguing that the evidence did not
justify the verdict, an error of law occurred at trial and substantial
justice was not done.
CR 59(a)(7), (8), (9). At the first hearing on the
motion, the trial court
expressed concern that juror confusion over the instructions and special
verdict form might justify vacation of the judgment. The judge asked the
parties to assume the jury misunderstood proximate cause and its interplay
with contributory negligence, and asked for additional briefing on this
issue. He also authorized the parties to seek affidavits from the jurors.
After reviewing the affidavits and the law regarding juror misconduct, the
court denied Mr. Danielson's motion. This appeal followed.
JUROR CONFUSION
Central to this appeal is Mr. Danielson's contention that juror
confusion with the instructions and special verdict form may be the basis
for a new trial under the "substantial justice" section of CR 59(a)(9).1
According to the rule, an aggrieved party may move for vacation of the
verdict and a new trial because "substantial justice has not been
done."
CR 59(a)(9). Mr. Danielson contends the juror affidavits
show that they
intended to award damages to the Coes' estates, but that the instruction on
proximate cause and the order of the interrogatories in the special verdict
frustrated that purpose. He argues that a verdict contradicting the jury's
intent is the antithesis of justice.
The trial court denied Mr. Danielson's motion because it decided
juror misunderstanding of the instructions. Because the denial was based
on a question of law, our review is de novo. Cox v. General
Motors Corp.,
64 Wn. App. 823, 826, 827 P.2d 1052 (1992).
We begin by noting that a new trial is rarely granted on the basis
that substantial justice has not been done. Knecht v.
Marzano, 65 Wn.2d
290, 297, 396 P.2d 782 (1964); Kohfeld v. United Pac. Ins. Co., 85 Wn. App.
34, 41, 931 P.2d 911 (1997). Added to Mr. Danielson's burden is the
weight
of
legal questions: (1) Did the court err in considering
the affidavits of the
jurors? (2) May the court grant a new trial on the basis of juror confusion
with the instructions and/or the special verdict form? Additionally, we
address whether the polling of the jury resolved any irregularities in the
verdict.
I. Juror Affidavits. It is axiomatic that juror affidavits may not
be used to contest the thought processes involved in reaching a verdict.
Ayers v. Johnson & Johnson Baby Prods.
1337 (1991). The instructions here are standard, based on Washington
Pattern Instructions 11.01 (contributory negligence) and 15.01 (proximate
cause). Investigating whether certain jurors misunderstood the
instructions or the special verdict interrogatories necessarily involves
delving into the jurors' mental processes. Because those mental processes
inhere in the verdict, they are inaccessible to subsequent inquiry. Ayers,
117 Wn.2d at 768-69; State v. Marks, 90 Wn. App. 980, 986, 955 P.2d 406
(1998). Consequently, affidavits relating the jury's understanding of
the
instructions and verdict form may not be considered, and the trial court
here erred in so considering.2 Ayers, 117 Wn.2d at 769; Marks, 90 Wn. App.
at 986.
II. Effect on the Verdict. Although the trial court impermissibly
examined the juror affidavits and declarations, it is clear that he relied
on
doubt that a verdict may not be vacated merely because some jurors
misunderstood the judge's instructions. Ayers, 117 Wn.2d at
769;
v. Malone, 60 Wn.2d 836, 840-41, 376 P.2d 651, 379 P.2d 918 (1962). Even
a
jury's alleged misconduct in failing to follow the instructions inheres in
the verdict and may not be considered. Ayers, 117 Wn.2d at
769. Further,
the verdict was confirmed by the jury poll.
asked whether this was the jury's verdict and whether it was his or her own
verdict. All twelve answered that the verdict was accurate and 10 of the
12 answered that it was their verdict. The poll cured any irregularities,
including claimed mistakes in understanding the instructions. Minger v.
Reinhard Distrib.
Ayers, 117 Wn.2d at 768-69;
1390, review denied, 100 Wn.2d 1009 (1983).
III. Failure to Object. Finally, we note that both parties approved
the instructions and verdict form. Mr. Danielson proposed, almost word for
word, the court's instructions on proximate cause and contributory
negligence as well as the special verdict form. The failure of a party to
except to instructions or the special verdict form precludes that party's
argument later that they were denied "substantial justice" pursuant
to CR
59(a)(9). Cerjance v. Kehres, 26 Wn.
App. 436, 441, 613 P.2d 192 (1980).
JURY INSTRUCTION
Mr. Danielson also assigns reversible error to the trial court's
failure to adopt proposed instruction No. 17A on the reasonable reaction
time of a favored driver. The instruction in its entirety is as follows:
"When, in the exercise of reasonable care, it becomes apparent to the
favored driver that the disfavored driver will not yield the right of way,
the favored driver is, nevertheless, still entitled to a reasonable
reaction time before he or she can be charged with contributory
negligence." Mr. Danielson contends that without this instruction, the
jury must have found that the Coes' failure to react made them at least
contributorily negligent.
Proposed instruction No. 17A is based on language found in Petersavage
v. Bock, 72 Wn.2d 1, 6, 431 P.2d 603 (1967), which declares that the
favored driver is entitled to a reasonable reaction time before he or she
can be charged with contributory negligence. In Petersavage, the plaintiff
was clearly the favored driver. Because the evidence did not show that the
plaintiff was speeding or driving while distracted, the court held that the
issue of contributory negligence was improperly submitted to the jury. Id.
Petersavage does not, however, address the propriety of an instruction on
this "reasonable reaction time."
The decision to give a particular jury instruction is a matter within
the discretion of the trial court and will not be reversed absent abuse of
that discretion. Stiley v. Block, 130 Wn.2d 486, 498, 925
P.2d 194 (1996).
An instruction may be refused if the other instructions are sufficient to
permit each party to argue its theory of the case, are not misleading and
properly inform the trier of fact of the applicable law. Hyatt
v. Sellen
Constr. Co., 40 Wn. App. 893, 895, 700 P.2d 1164 (1985).
Two scenarios for the collision were developed at trial. In the one
proposed by Mr. Danielson, the Coes were riding their motorcycle down a
long curving stretch of highway behind two slow-moving trucks. The uphill
traffic had a passing lane that the Coes in the downhill traffic could use
in passing zones. The Coes moved into the passing lane on a couple of
occasions in aborted attempts to pass the two trucks. Their son and his
girlfriend rode a motorcycle behind them. Close behind both motorcycles
were the Reinkes in their truck and trailer. The Coes entered the passing
lane a third time. According to their son, the Reinke truck then pulled
into the passing lane and accelerated. The son shouted into his father's
two-way radio "truck, truck, truck." As Mr. Coe tried to see where
the
truck was, the Reinkes hit his motorcycle, which then bounced off one of
the slow-moving trucks and fell under the Reinke trailer, crushing the
Coes.
According to Mr. Reinke, when he reached the passing zone, he looked
in his left rearview window, saw no one was passing from behind, looked in
his right mirror to verify a clear lane of travel, turned on his left turn
signal and entered the passing lane. At that point, neither of the
motorcycles ahead of him had turned on their turn signals or moved into the
passing lane. The Reinkes passed both motorcycles, felt a jolt and saw
from their rearview mirrors pieces of the motorcycle behind them.
In closing statements, Mr. Danielson argued that the Coes entered the
passing lane, heard the warning about the truck and only had three to six
seconds to react. The Reinkes argued that as they passed the Coes, the
motorcycle actually drove into the truck. If the Coes had occupied the
passing lane for over six seconds, the Reinkes noted, then the Reinkes
should have seen them, and the cab of the truck - not its trailer - would
have hit the motorcycle.
Clearly both parties addressed the alleged three to six seconds of
reaction time. Considering Mr. Danielson's ability to argue that the Coes
entered the passing lane first and briefly "froze" as the Reinke
truck bore
down on them, the court's refusal to include the favored driver instruction
did not deprive him of his argument. Unlike in Petersavage, the identity
of the favored driver here was disputed and either party may have been
contributorily negligent. Under the instructions given for negligence and
contributory negligence, both parties were permitted to argue that they
drove prudently as favored drivers. The proposed instruction would have
applied to both and its exclusion hurt neither.3
CONCLUSION
Although we hold that the trial court erred in considering the juror
affidavits, we find that it correctly ruled the alleged juror confusion
could not be the basis for a new trial under CR 59(a)(9). Additionally, we
find that the court did not abuse its discretion in rejecting the proposed
instruction on reasonable reaction time. Accordingly, we affirm its denial
of Mr. Danielson's motion for a new trial.
Affirmed.
The majority of the panel has determined this opinion will not be
printed in the Washington Appellate Reports, but it will be filed for
public record pursuant to RCW 2.06.040.
Kurtz, J.
WE CONCUR:
Schultheis, C.J.
Brown, J.
1 Mr. Danielson also argued in his motion for a new trial that the evidence
did not justify the verdict. CR 59(a)(7). This
argument is not pursued on
appeal except to the extent that he contends the juror's answers to the
special verdict interrogatories are inconsistent and prove their confusion.
2 Contrary to Mr. Danielson's evaluation of the affidavits, they do not
clearly indicate the jury misunderstood the instructions or the verdict
form. The five juror declarations submitted by Mr. Danielson state that
they felt Mr. Reinke was at least partially negligent, the verdict form
seemed to make them find only one proximate cause of the collision, and the
majority of jurors wanted to award the Coes' estates damages. Only two of
these jurors wrote that they did not agree with the verdict, however. The
nine declarations submitted by the Reinkes generally state that although
Mr. Reinke was negligent in some ways (driving too close to the Coes'
motorcycle, failing to honk before passing), his negligence was not a cause
of the Coes' deaths. These declarations also state that these jurors
understood the instructions and that the verdict accurately reflected their
decision (although two jurors disagreed with the decision).
3 The Reinkes' argument that the proposed instruction would have been a
comment on the evidence is without merit. An instruction that assumes as
true something that is in dispute is an impermissible comment on the
evidence. State v. Haack, 88 Wn. App. 423, 430, 958 P.2d 1001 (1997),
review denied, 134 Wn.2d 1016 (1998). Since either party here may have
been the favored driver, the proposed instruction does not assume anything
in dispute.