The opinion
FILED
APRIL 27, 2023
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
TAMERA SWAGER AND MARTY )
SWAGER, husband and wife, ) No. 38438-1-III
)
Appellants, )
)
v. )
) UNPUBLISHED OPINION
CCM HOLDINGS, L.L.C., a Washington )
Limited Liability Company; WILLIAM G. )
HANVEY AND KATHLEEN M. )
HANVEY, individually and in their )
marital community; VALUE VILLAGE )
STORES, INC., a Washington Profit )
Corporation; JOHN DOE I-X, )
)
Defendants )
)
INLAND LAWN INC., a Washington )
Profit Corporation )
)
Respondent. )
FEARING, J. — This appeal raises a variety of issues stemming from appellant
Tamera Swager’s (Swager’s) slip on ice in Spokane’s Value Village’s parking lot. Her
fall caused serious injuries to her ankle and leg. Swager gained partial success against
Value Village and the store property’s owner, but a jury ruled in favor of Inland Lawn,
the contractor hired to remove snow and ice from the parking lot. Swager and her
husband appeal rulings leading to the verdict vindicating the contractor. Swager assigns
No. 38438-1-III,
Swager v. CCM Holdings, LLC
error to exclusion of postinjury correspondence between Value Village, the property
manager, and Inland Lawn and to the preclusion of testimony from an expert on snow
removal. She assigns instructional error and error in denying a motion to dismiss the
affirmative defense of comparative fault. We conclude that the superior court committed
prejudicial error when excluding testimony from Lisa Rose, a snow and ice removal
expert.
FACTS
This lawsuit arises from Tamera Swager’s slipping on inclement conditions in the
parking lot of Spokane’s uptown Value Village on January 4, 2017. In addition to suing
Value Village, Swager and her husband sued the property owner, CCM Holdings, Inc.,
and the snow removal contractor, Inland Lawn. Inland Lawn is the only respondent on
appeal. During the winter, Inland Lawn performs on contract, for numerous property
owners, snowplowing, parking lot and sidewalk snow removal, sanding, and deicing.
By 2017, Value Village property’s owner, CCM Holdings, Inc., had contracted for
more than ten years with Inland Lawn to perform ice and snow removal on the store’s
premises. Under the one-page contract, Inland Lawn traveled to Value Village if snow
reached two inches. Inland Lawn sprayed a liquid deicer to the parking lot with a tank
truck, plowed the snow in the parking lot, and removed snow from the sidewalks along
the premises. The sidewalk crew worked separate from the plowing and deicing crew.
The contract also afforded Inland Lawn the opportunity to apply liquid deicer before or
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after a storm. Inland Lawn determined the amount of deicer to apply and it charged for
the deicer by the pound. The contract also read that Inland Lawn would apply sand only
if requested.
Inland Lawn does not offer customers the service of monitoring premises after
snow removal. No one with Value Village or CCM Holdings spoke to Inland Lawn
about monitoring the premises after performing instances of snow removal or application
of deicer.
Deicing lowers the freezing temperature of the snow and ice so that the snowplow
can remove the precipitation at a lower level on the pavement. Deicing also keeps the
parking lot safer. A deicer lasts one to two days. Kelly Peterson, part owner and
manager of Inland Lawn, testified at trial that he did not know what occurred after the
deicer waned in effect.
Inland Lawn removed snow and ice from Value Village’s parking lot on the
morning of January 1, 2017. A snowplow plowed and a truck applied 35 gallons of
liquid deicer. A separate crew removed snow from sidewalks and applied granular deicer
to those walkways. Inland Lawn repeated the same tasks that evening because of a
surprise second storm. Inland Lawn applied no sand, either in the morning or evening,
because the property owner’s manager never requested its use. The cost of applying sand
would been in the range of $150 to $175 for the entire premises.
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Kodi Bilbrey, now Inland Lawn’s operations manager, testified at trial that he was
one of the workers clearing the parking lot on January 1, 2017. Bilbrey avowed that he
had performed snow removal on Value Village’s parking lot at least fifty times before.
Inland Lawn did not return to the property until January 7, 2017, because no new
snowfall exceeded two inches. Without this triggering frozen precipitation, the company
would not receive payment for additional services.
At midday on January 4, 2017, Tamera Swager and her husband, Marty, intended
to shop at Value Village. They had just exited an adjoining building where they sought
counsel from an attorney. They traversed a city sidewalk between the office building and
the discount store.
Before leaving the sidewalk and entering Value Village’s parking lot, Tamera
Swager noticed “[c]ompact snow and ice” on the lot. Report of Proceedings (RP) at
1151. The parking lot appeared “dirty,” such that both she and Marty Swager assumed
traction material had been laid on the ice. Each judged the parking lot to be safe on
which to walk.
Tamera and Marty Swager entered the parking lot and walked toward the Value
Village entrance. During cross-examination, Swager declared:
Q. As you’re walking, you know, 20 feet into that parking lot, did
you ever look down and see traction material?
A. I didn’t look down.
....
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Q. Okay. At any time between that zero to 20 feet, did you look
down on what you were walking on?
A. When we first entered the property.
....
Q. All right. And was that the only time you looked down when
you were walking into that parking lot?
A. Well, I was looking straight. So, of course, I can see exactly
where I’m going. I can see what was in front of me.
Q. All right. Did you see traction material as you were looking
forward?
A. Like I said, it was dirty.
Q. Dirty with just dirt or material?
A. I have no clue. It was dirty. So it could have been traction
material. I didn’t know.
RP at 1183-84.
Within twenty feet of entering the parking lot, Tamera Swager slipped and
tumbled to the iced pavement. Marty, who walked ahead of Swager, heard her say “I
hurt myself.” RP at 889.
An individual who observed Tamera Swager’s fall called 911. Ronald Hunter,
Value Village’s store manager, learned of Swager’s fall and left the store to gather
information from the Swagers. An ambulance arrived on the premises and transported
Swager to the hospital.
A family friend, Scott Mankin, arrived at the store to drive the couple home after
they had completed shopping. Mankin testified at trial concerning the conditions in the
parking lot that he encountered:
Q. So when you got out of your car—or, I guess, more generally,
what were the conditions of the parking lot that you saw there?
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A. Super icy and very slick and the closer I got to the ambulance,
the slicker it got. And then as I looked toward the street, you could see
where it was rutty, bumpy, where people, maybe, driven and droven [sic]
through it, and then it froze and got pretty treacherous from the sidewalk in
and then it smoothed out as it got closer to the drain and the hill. There’s,
kind of, a serious grade in that parking lot where it drains down.
Q. Yeah. But how much—can you describe how much of the
parking lot was covered in that condition?
A. From the time I started walking, it was pretty much all ice. So I
would say, you know, three quarters of that parking lot where I was. I can’t
attest to where the cars were parked, but, where I was walking down to
where they were, it was all ice.
....
Q. Okay. Okay. So could you—the part of the parking lot where
Mr. Swager and the ambulance were, can you describe the—what you saw
with respect to this ice in more detail?
A. It was—it was slick and smooth and super icy, super slick. And,
like I said, I didn’t—when I went and looked down at the other spot, you
could see [that] the ice just seemed to get thicker and more uneven and
more rutty as you went away towards the street which would be the south.
Going south in that parking lot, it got more—way more icy and rutty and
slick, uneven. Where the ambulance was [it] was pretty even, but it was
ice, just all ice.
....
Q. So did you see any traction material like sand or deicer on that
part of the parking lot?
A. No.
....
Q. And you yourself walked from your car down to the ambulance
to speak to Mr. Swager?
A. Yes.
Q. Did you have any trouble walking yourself?
A. I was very careful, yeah. It was very slick.
.
RP at 468-74.
When asked at trial, if Value Village’s parking lot should have been free from ice,
Kelly Peterson, manager of Inland Lawn, responded that “[a]ttempts should be made to
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No. 38438-1-III,
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keep it clear.” RP at 536. Peterson agreed that someone should monitor the parking lot
for ice, although he denied that Inland Lawn should be the one to conduct the monitoring.
Peterson would expect that, if the property owner or manger noticed slippery conditions
in the parking lot after Inland Lawn’s work, someone would contact Inland Lawn. If an
employee of Inland Lawn was nearby, he or she might check on conditions. Peterson
denied that Inland Lawn should have conducted discussions, in advance of January 1,
2017, with Value Village or CCM Holdings about who should perform monitoring.
When asked if sand or other bracing material should be placed on an icy parking
lot, Kelly Peterson answered that Inland Lawn defers to the property owner or manager
for deciding whether to apply sand. Some property owners do not desire the use of sand
because the sand decomposes the asphalt and striping and requires clearing in the spring.
At trial, Tamera and Marty Swager sought to introduce a series of e-mails among
representatives of Value Village, CCM Holdings, Inland Lawn, and an insurance agency.
Swager’s fall precipitated the e-mails. We do not correct the spelling or punctuation of
the messages exchanged in the e-mails.
On January 4, 2017, at 1:29 p.m. and shortly after Tamera Swager’s spill, someone
at the Spokane Value Village store sent an e-mail to “Risk Insurance” with the subject
line of “New Incident Entered →Store Number 1014 → General Liability /
Responsabilite civile.” Since Value Village maintains a presence in Quebec under the
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No. 38438-1-III,
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name of Village des Valeurs, we assume some of the spelling in this subject line
employed French words. The 1:29 e-mail read:
Loss Date: 1/4/2017
Report Date: 1/4/2017
Location: 1014 Spokane
Claim Number: 2017511363
Name: Tamara Swager
Accident Description: Person was visiting a neighboring business
and was walking into parking lot to meet her ride. She slipped and fell on
the ice at the entrance of the parking lot. She was transported to Sacred
Heart Hospital.
Clerk’s Papers (CP) at 379-80.
On January 4, 2017, at 2:50 p.m., Value Village’s Risk Manager Sheri
Blankinship e-mailed the company’s Facilities Manager Darren Farwell. Both the risk
manager and the facilities manager work from company headquarters in Bellevue. The
subject line for the e-mail read: “Customer Claims (2) out of Store 1014 Spokane.” CP at
1633. The body of the message declared:
In the last 3 weeks we have had two “customers” fall in the parking
lot and both have been transported via ambulance to the hospital. The
winter maintenance company has plowed the lot, but ice remains under the
snow due to the frigid temperatures.
I’m not sure what, if anything can be done, but wanted you to be
aware of what can be two costly claims for the organization.
My interpretation of the lease is that the LL is responsible for the
parking lot. Would you agree? If this is accurate we will more than likely
deny these claims and tender them to the LL.
If you know who the winter maintenance company is and/or have a
contract, can you forward that to me?
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CP at 1633. We assume that that “LL” stands for landlord. We further presume that the
portion of the message following each “DF” is Farwell’s response to Blankinship’s
comments and questions.
On January 16, 2017, at 3:33 p.m., Value Village Facilities Manager Darren
Farwell electronically wrote to Value Village Risk Manager Sheri Blankinship and
Shelley Martinez, an employee of CCM Holdings, the property’s landlord:
Sheri,
See below, In response to your questions. I’ve included the IL [Inland
Lawn] on this email and I’ll request that they immediately “Ramp UP” the
snow and ice clearing service and maintenance.
Shelley,
Please see the below email and pictures. There have been 2 major
accidents in the Value Village parking lot where folks have had to be
removed via ambulance. These claims will be forwarded to IL. The vendor
that performing service needs to start sanding the parking lot to help
eliminate the slip and falls, where compact snow and ice cannot be removed.
Thanks
Darren Farwell
On January 16, 2017, at 4:03 p.m., Shelley Martinez wrote to Tom Siebert, a
representative of Payne West Insurance Agency in Spokane, and Kelly Peterson, part
owner and manager of Inland Lawn:
Tom,
Below is some claims for people who [fell] at Value Village. Please
contact below to get the details.
Kelly,
Please get this parking lot rocked with deicer make sure this is a lot
of this after you plow.
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On January 17, 2017 at 8:54 a.m. Shelley Martinez messaged Darren Farwell and
Tom Siebert:
Tom,
I don’t know anything about the claims or accidents. Please contact
Darren to get the Information. Have the ajuster [sic] call him or his
employees at the store.
At 10:31 a.m. on January 17, 2017, Tom Siebert responded to Shelley Martinez:
I will email Darren the below info .... And he will be our contact for
the claim.
Thanks
Tom Siebert
At 11:02, on January 17, 2017, Tom Siebert with PayneWest e-mailed Darren
Farwell:
Hi Darren,
Below is the claim number and an adjuster will be calling you in
the next 24-48 hours.
At 2:49 p.m., CCM Holdings representative Shelley Martinez sent an electronic message
to insurance agent Tom Siebert:
Tom,
Just wanted to let you know that we have a full time crew that does
the snow removal & de-icing this property almost everyday. But because
of the weather in single digits some of the deicer is not working. But they
do have rock in it to give the customers grip & to show that it is on the
ground but that does not mean they can not walk with caution.
At 4:45 p.m., Darren Farwell wrote to Tom Siebert:
Tom,
FYI, I know nothing about the incident, other than what’s in this
email.
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Darren Farwell
Facilities Manager
Tom Siebert wrote to Shelley Martinez, on January 18, 2017, at 8:56 a.m.
Who should the adjuster contact regarding the slip and falls ....
Below Darren does not appear to handle.
Thanks
Shelley Martinez responded at 9:29 a.m. the same day:
Have them contact the onsite Manager (Ron) he can tell you the
whole stories. 509-325-2569
PROCEDURE
Tamera and Marty Swager sued Value Village, Inc., CCM Holdings, Inc., and
Inland Lawn. The couple alleged each defendant’s negligent conduct caused Swager’s
injuries resulting from her fall in the Value Village parking lot. The defendants asserted
the affirmative defense of comparative fault.
Before trial, the parties filed motions in limine, some of which sought the opposite
relief of the other side’s motions. Tamera and Marty Swager moved to admit the e-mails,
marked as Exhibit (Ex.) P109, exchanged between agents and employees of CCM
Holdings and Value Village. CCM Holdings and Inland Lawn asked to exclude the e-
mail messages. The Swagers never asked the court to admit one or more individual e-
mail as opposed to admission of all e-mails together as one exhibit.
When arguing against admission of Exhibit P109, the defendants argued for
exclusion because the messages related subsequent remedial measures and referenced
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No. 38438-1-III,
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insurance. The Swagers argued for the admission of the e-mails under ER 407 and 411
on the basis that the communications established Value Village’s control over the parking
lot and the messages showed the ability to remove some or all of the ice from the lot.
The Swagers anticipated each of the three defendants to respectively claim that another
defendant controlled operations on the parking lot. Value Village, however, agreed it
controlled the parking lot and denied any contest over the control. All defendants also
agreed that Inland Lawn or any other defendant could have applied sand and the
feasibility of other measures. In response to Value Village’s concession, the Swagers
argued that the question of control could still arise during trial.
The trial court excluded Ex. P109 as evidence of subsequent remedial measures.
The trial court also granted CCM Holdings’ motions to exclude any testimony or
reference to liability insurance or to the sanding of the parking lot after Tamera Swager’s
fall. The trial court denied the Swagers’ additional motion in limine to preclude any
arguments or inferences that Swager assumed the risk of falling when she attempted to
shop at Value Village.
Tamera and Marty Swager hired Lisa Rose to testify to the obligations of the
property owner to vet and monitor the performance of a snow removal contractor and to
opine about the duties of a snow removal contractor. Rose testified during an offer of
proof proffered by the Swagers.
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Lisa Rose is a snow and ice removal consultant headquartered in the snow belt
buckle, Erie, Pennsylvania. According to Rose, a snow and ice consultant is now
considered a professional that holds expertise. Snow removal has advanced since a man
attached metal to his pickup and plowed snow in the middle of the night. Rose sought to
inform the jury about steps to be taken by contractors to mitigate snow and ice hazards,
policies and procedures employed to prevent slip and fall incidents on commercial
parking lots, and standards in the snow removal industry.
Lisa Rose has worked in the snow and ice removal industry since the 1990s. She
began as a dispatch operator. She progressed to inspecting properties, managing the
snow removal operations of a local landscape company, and managing the operations of a
national snow removal company, Snow Management Group. In the last position, Rose
oversaw 3,500 employees and subcontractors.
Lisa Rose received accreditation from the Accredited Snow Contractors
Association. She is also a member of the Snow and Ice Management Association.
Finally, Rose is a member of the Snow Fighters Institute, which provides education for
snow removers and property managers. She served as copyright editor and proof reader
for two snow and ice related books authored by John Allin, her colleague at Allin/Rose
Consulting, Inc.
One of the books Lisa Rose edited establishes snow and ice management protocols
and standards and is known as the snow and ice management Bible. Rose conceded the
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No. 38438-1-III,
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standards published in the book are not legally binding. She does not know whether any
Spokane snow remover follows the standards. The questioning of Rose did not unearth
the extent to which the standards have been publicized, broadcast, or adopted. Rose
avowed that the standards that apply to Erie, Pennsylvania also apply to Spokane. We
refer to this assertion as the Erie doctrine.
In one passage of her testimony, Lisa Rose averred:
Q. And do the standards that you know of now, you know, or back
in 2016, 2017, do the standards differentiate between each state or is it, you
know, pre, post—or pre, intra, post event types of activities that you have to
perform as a snow and ice consultant or contractor?
A. The standards do not vary state to state because, you know,
again, state to state you still want a written plan, you want a snow response
plan, you want communications documented, you want that clear between
all involved parties. That doesn’t matter if you are—it doesn’t matter
where you are. You want those standards for sure.
RP at 619.
Lisa Rose, during the offer of proof, expressed no criticism of Inland Lawn’s
performance on January 1, 2017, when the contractor plowed and spread magnesium
chloride, a liquid deicer. Nevertheless, according to Rose, if the magnesium chloride
worked, the snow on the parking lot would have undergone melting and later refreezing.
According to Rose, a contractor should return to the location the following day to inspect
the work performed. Inland Lawn failed to do so.
During cross-examination, Lisa Rose declared:
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No. 38438-1-III,
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Q. Okay. You have some opinions I’ve seen that the contractor
needs to do a followup inspection the next day to make sure their work was
appropriate.
A. Yes.
Q. Okay. Now, do you know if any snow and ice contractor in the
Eastern Washington or North Idaho region actually had the practice of
doing a followup inspection after they serviced a parking lot the following
day?
A. I can say that they should if they’re following the standards.
And, if we would consult with them, they would. But I don’t work for any
of those companies. So I can’t answer that.
RP at 624-25. The cross-examination of Rose continued:
Q. What is—what supports—what is the basis of your opinion to
support your—the opinion that my client [Inland Lawn] should have
inspected the property between January 1 and January 4?
A. Zurich Insurance provides that awareness and accountability
providing safe walking surfaces. So there’s an insurance component that
talks about that’s something that should be done.
Q. Does that insurance component indicate to you the number of
times an inspection should be done between January 1 and January 4?
A. Let me also say that there’s another portion that says an effective
snow and ice removal plan should be in place, and an inspection would be
part of a snow and ice removal plan. And, no, none of these standards will
tell you a number of inspections because that is going to be based on
multiple factors: the weather conditions, the communications and plan, and
monitoring agreed upon between the companies or involved parties.
BOKA—I’m sorry BOMA [Building Owners and Management
Association], which I already spoke of, speaks about making sure that the
staff members or snow removal vendor aggressively handles ice patrols.
It’s also pretty much commonsense. I know I’m here as an expert, but it is
a commonsense situation that a site has to be looked at. It has to be
inspected.
Q. Is it your position that had CCM Holdings done a site inspection
January 3rd, they would have detected this condition that Ms. Swager
reported January 4th?
A. It’s a whole lot better possibility than not doing it at all.
Q. It’s a possibility, right? That’s what you said?
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A. Well, of course. They would have seen that there were icy
conditions. There was no treatment between January 1 and January 4.
Q. But you’ve testified that you have no knowledge of what the
conditions on the property were between January 1 and January 4, correct?
A. Well, she slipped and fell on ice on January 4, so there was ice
on January 4.
Q. Okay. And that’s all you can say, right?
A. Yeah.
RP at 635-37.
During the voir dire of Lisa Rose, the trial court questioned Rose:
THE COURT: And so the purpose of the standards is related to
liability. You agree with that?
THE WITNESS: Yeah because safety is our number one job or crisis
management. All the parties involved dealing with snow and ice is crisis
management.
THE COURT: What scientific information did your organization
collect that would indicate that a vetting—a proper vetting procedure, as
you’ve used that term, changes the liability perspective for a property
owner in the State of Washington?
THE WITNESS: I can’t say that we’ve collected scientific evidence
in the State of Washington.
THE COURT: Any anywhere?
THE WITNESS: Well, my years of experience show when I ran a
snow management company, I would vet providers before awarding
locations to them. And I think it matters because you do end up with a
better quality service provider.
THE COURT: Do you have any data?
THE WITNESS: I’m not sure—I’m sorry. I’m not sure if that
answered your question.
THE COURT: Do you have any data that you could provide to this
Court that would show that a properly vetted snow removal contractor—
snow and ice removal contractor is necessarily different than someone who
doesn’t follow the standards but just does the job?
THE WITNESS: I don’t have scientific evidence to that, but that is
why we put the standards in place because we know they work. We
wouldn’t create standards that—
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THE COURT: Who funds your organization?
THE WITNESS: Allin Rose consultant? Or—
THE COURT: Let’s go to the snow—
THE WITNESS: Snow and Ice Management Association, to my
understanding, is a nonprofit. And it was started by John [Allin]—
THE COURT: Who funded them? Who funds them? They may be
a nonprofit. That doesn’t mean Mr. [Allin] is simply paying for all of the
expenses, correct? Does he have members of that organization?
THE WITNESS: Well, let met [sic] clarify. It’s not John [Allin’s]
organization. He was one of the original founders. But it’s founded by
members now.
THE COURT: Who are the members?
THE WITNESS: It could be property management companies. It
can be snow and ice management contractors. There are weather
individuals, meteorologist, forensic weather people.
THE COURT: Are you aware of any scientific data or accident
reconstruction data collected by the Snow and Ice Management Association
at any point in time?
THE WITNESS: No.
THE COURT: How about for the Accredited Snow Contractor
Association? Same question, are you aware of any scientific or accident
reconstructed data that they have collected?
THE WITNESS: Well, I don’t run ASCA or SIMA.
THE COURT: I’m not asking if you ran it. I’m asking if you are
aware of any scientific data that they collected.
THE WITNESS: Well, I read their trade organization publications,
and those have scientific data articles in them. But I don’t know that
they’ve collected them. So I guess I would have to say no.
THE COURT: Are the standards that you are relying upon either the
SIMA or AS—
THE WITNESS:—CA.
THE COURT: Are those standards, to the best of your knowledge,
adopted by any governmental entity?
THE WITNESS: No.
RP at 638-41.
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In addition to faulting Inland Lawn for failing to monitor conditions after January
1, Lisa Rose faulted Inland Lawn for failing to sufficiently document the work performed
and failure to sufficiently define the scope of its work in its contract with CCM Holdings.
According to Rose, the parties should have assigned someone as responsible for
monitoring parking lot conditions. In turn, Rose criticized CCM Holdings for not vetting
Inland Lawn before hiring it and failing to clearly outline the duties of Inland Lawn under
the snow removal contract.
After hearing the offer of proof, the trial court determined that Lisa Rose qualified
as an expert because of her experience in the snow removal industry. The court
considered Rose’s relevant opinion to be that Inland Lawn performed deficiently by
failing to return to the parking lot after January 1. Nevertheless, the trial court precluded
Rose’s testimony because her opinions were not “necessary for the trier of fact to
understand the circumstances at issue.” RP at 658.
We relate some of the astute comments of the trial court. Some of the comments
suggest the trial court based its ruling on factors other than helpfulness to the jury.
I do not understand what scientific, technical, or other specialized
knowledge is necessary for the trier of fact to understand the evidence
being presented or to determine the fact in issue.
In other words, I don’t find that Ms. Rose has any ability to explain
scientific facts or technical knowledge about snowplowing, snow removal,
ice removal, ice treatment. I didn’t hear her say that she’s got any
education in magnesium chloride. I didn’t hear her say that she’s done any
scientific studies or technical research that shows that the standards that she
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No. 38438-1-III,
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supports make any difference in accident rates at locations where she’s
studies that.
She has an opinion because she belongs to an association that wants
to market itself as creating higher standards to share liability. That was
what I understood her to say. That liability and that sharing of liability, if it
exists, exists under Washington law. So I’m struggling as to what
testimony she has that would be of assistance to the trier of fact in this case.
RP at 642-43.
I do not have anything that says these are widely used standards.
Ms. Rose says those standards have not been adopted by any governmental
entity that she’s aware of.
....
But no comparison with the people that do the work. There’s
certainly nobody in Spokane, Washington, that she’s aware of. She didn’t
say anybody here that belongs to that organization. She didn’t say that
there’s any measure for what that is. It might be that everybody in New
York City belongs and nobody in Upstate New York belongs. I don’t have
any of that such information.
RP at 646.
And nobody raised the issue, but I’m very concerned that the
purpose is how much does it cost if you want to have a snow and ice
removal contractor here, that there might be a snow event, they rush out
establish pre-service conditions—or pre-event deicer; they then go back do
the snow removal; then they go back and do the post-ice or event deicing;
and then they go back a fourth time to further observe.
Nobody’s raised that question. But certainly it’s a question that the
defendants—and nobody’s established that that’s necessary in order to
properly create a safe condition for people that come upon your parking lot.
RP at 647-48.
So those standards don’t necessarily have anything to do with safety.
And that was my question of this witness. So I’m concerned about where
the scientific, technical, or specialized knowledge necessary or helpful to
the finder of fact element comes in. There was—she doesn’t have any data.
19
No. 38438-1-III,
Swager v. CCM Holdings, LLC
She doesn’t have anything other than, we sat down as a group and said if
you, as a snow removal contractor, can say we’ve come a long way from
hanging a piece of metal off of your truck and pushing snow around. You
might be able to be more professional. You might be able to charge more
for your services. You might be able to do more servicing.
RP at 649-50.
But she has no knowledge. She’s never been to this site. She has no
knowledge presumably of the grade, of the shape, of the square footage.
She has no knowledge of how snow and ice forms. She wasn’t asked, at
what temperature does magnesium chloride work? Does it work at 32
degrees? Does it work at 28 degrees? Does it work at 5 below? I don’t
know that. I don’t know that she knows that.
RP at 651.
But she doesn’t testify that there was a hazardous condition on
January 4th.
RP at 651.
And what I’m concerned about is Ms. Rose appears to the Court to
commence her analysis from a baseline that I don’t understand how her
area, her training, experience, knowledge qualifies her to provide that
information because it has to be some sort of technical, scientific, or
specialized knowledge that would enable her to provide some piece of
information that would be of benefit to the finder of fact, the jury.
RP at 652.
And what I’m asking is what the technical scientific or other
specialized knowledge that shows possession of policies and procedures
changes the outcome.
RP at 653.
I’m not saying she has to rely on specific scientific information. I’m
saying what evidence is there that says these—and I asked her specifically,
20
No. 38438-1-III,
Swager v. CCM Holdings, LLC
are you aware of any improved outcome, any scientific studies, any data
collected by you or any of the organizations that you belong to that would
show that the outcome would be different because of policies and
procedures. I didn’t hear any, yes, Your Honor. Here it is.
RP at 653-54.
At the close of testimony, Tamera and Marty Swager moved for judgment as a
matter of law on the affirmative defense of comparative fault. The Swagers argued that
defendants did not produce sufficient evidence for a jury to find that Swager acted
unreasonably under the circumstances. They highlighted that no witness expressly
testified that Swager failed to exercise ordinary care under the circumstances, nor that the
route she took to the store was unreasonable. The trial court denied the motion to dismiss
the defense.
Tamera and Marty Swager and Inland Lawn sought a jury instruction on a
contractor’s duty to invitees. The Swagers relied on Williamson v. Allied Group, 117
Wn. App. 451, 72 P.3d 230 (2003) to propose an instruction using the language of
Restatement (Second) of Torts § 383 (AM. L. INST. 1965):
One who does an act or carries on an activity upon land on behalf of
the possessor is subject to the same liability, and enjoys the same freedom
from liability, for physical harm caused thereby to others upon and outside
of the land as though he were the possessor of the land.
Plaintiffs’ Proposed Jury Instruction 10, CP at 1230. Inland Lawn believed the
Swagers’ proposed instruction to be an incomplete statement of the law and requested an
instruction based on Restatement (Second) of Torts § 384 (1965). Early in the trial, the
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No. 38438-1-III,
Swager v. CCM Holdings, LLC
trial court commented that Inland Lawn owed a duty to Tamera Swager and expressed an
intent to deliver a jury instruction on a contractor’s duty to invitees on business premises.
According to the court, a jury could conclude that Inland Lawn negligently performed its
services on January 1 and created a dangerous condition that existed when Swager fell on
January 4. The trial court added: “[W]e’ll get there with regard to the [contractor]
instruction.” RP at 1252. Nevertheless, at the conclusion of trial, the court included no
such instruction. The Swagers objected to the failure to give an instruction. During
closing, Inland Lawn’s counsel intoned:
Kodi [Bilbrey] is now operations manager. And I asked him the
question, would you say, you know, you serviced this property at least ten
times per winter conservatively? He said, yes. So by the winter of 2016-
’17, he himself personally had done this same route, this same job, the same
scope of work, more than 50 times. You know, in some ways, he could
consider himself—you could consider him as an expert in this field.
RP at 1385 (emphasis added).
Again, what evidence did you hear that Inland Lawn did something
wrong? Did any witness in this case testify, I expected Inland Lawn to
come back and check my property on January 2nd? No.
And I asked my clients, how come you didn’t go out for three days?
And it was real simple, no one called us back out, and we’re not the
monitoring company. That’s not what we do. We have 40 to 60 customers.
We’re doing other things. We’re expected to follow our contract.
RP at 1387 (emphasis added).
A jury found CCM Holdings, Inc., Value Village, and Tamera Swager negligent.
The jury attributed 70 percent of fault to Swager, 7.5 percent to CCM Holdings, Inc., and
22
No. 38438-1-III,
Swager v. CCM Holdings, LLC
22.5 percent to Value Village. The jury did not find Inland Lawn negligent. The jury
found the Swagers’ damages to be $684,961.52. CP 1899, 1942. The trial court entered
judgment against CCM Holdings for $52,009.94 and against Value Village for
$155,279.42.
After the appeal, CCM Holdings and Value Village respectively paid the
judgments. Tamera and Marty Swager then released the two defendants.
LAW AND ANALYSIS
Tamera and Marty Swager appeal only the verdict favoring Inland Lawn. They
assign four errors. First, the trial court erred in excluding the e-mail messages. Second,
the trial court erred in precluding testimony from Lisa Rose. Third, the trial court erred
in refusing to deliver the Swagers’ proposed jury instruction No. 10. Fourth, the trial
court erred when refusing to dismiss the affirmative defense of comparative fault.
We reverse the trial court based on Tamera and Marty Swager’s second
assignment of error. Nonetheless, we address the other three assignments since the issues
presented by the assignments may reappear during a retrial.
On appeal, Inland Lawn asks this reviewing court to dismiss Tamera and Marty
Swagers’ action as a matter of law on the doctrine of implied primary assumption of risk.
Inland Lawn argues that Swager assumed the risk of the fall because she saw the icy
conditions on the lot and this assumption of risk presents a complete defense.
23
No. 38438-1-III,
Swager v. CCM Holdings, LLC
We decline to address this request for judgment as a matter of law for two reasons.
First, Inland Lawn did not seek dismissal before the superior court on this defense. We
decline to address an argument raised for the first time on appeal. RAP 2.5(a); Salas v.
Hi-Tech Erectors, 168 Wn.2d 664, 671 n.2, 230 P.3d 583 (2010); Eyman v. McGehee,
173 Wn. App. 684, 698, 294 P.3d 847 (2013). Second, Inland Lawn did not cross appeal
a denial of judgment as a matter of law. The failure to cross appeal an issue generally
precludes its review on appeal. Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 89,
838 P.2d 111 (1992). Because it did not cross appeal, Inland Lawn assigned no error to
any refusal to take the question of its liability from the jury.
We reverse and remand for a new trial the claim against Inland Lawn because of
evidentiary error. The new trial will lack the presence of the other two defendants. In the
latter part of this opinion, we examine the issues to be resolved by the second jury.
Exclusion of Defendants’ E-mails
We first address the assignment of error based on the trial court’s exclusion from
evidence e-mail containing concessions from two defendants of ice on the parking lot and
steps taken after Tamera Swager’s spill. Tamera and Marty Swager claim that the e-mail
messages constitute admissions that ice, including ice under snow, covered the parking
lot and deicer was not working at the time of Swager’s spill. In so contending, the
Swagers focus on the January 4 e-mail message from Value Village Risk Manager Sheri
Blankinship to Value Village Facilities Manager Darren Farwell and the January 17 e-
24
No. 38438-1-III,
Swager v. CCM Holdings, LLC
mail from CCM Holdings agent Shelley Martinez to insurance agent Tom Siebert. The
Swagers argue that the e-mails fall under the hearsay exception found in ER 801(d)(2),
admission by party-opponent. We note that Value Village, CCM Holdings, and Inland
Lawn recognized at trial the existence of ice on the lot. The defendants emphasized the
presence of ice when arguing Swager was comparatively at fault. We also observe that
the Swagers never expressly sought introduction of Ex. P109 to show the presence of ice
in the parking lot or the worthlessness of the deicer. The Swagers emphasized that the e-
mail proved that CCM Holdings held control over the parking lot.
Despite the lack of a need to prove the point asserted by the Swagers, we would
likely allow into evidence a portion of the e-mail message that admitted the presence of
ice. Nevertheless, the Swagers never contoured Ex. P109 to limit the entries to those
sections admissible. Nor did the Swagers offer to excise any words from any of the
discrete e-mails found in Ex. P109. For the first time on appeal, the Swagers contend the
trial court could have excluded references to insurance and remedial measures without
excluding crucial admissions. During trial, the Swagers never asked the trial court to
admit only those portions that might be admissible.
We decline to address the merits of the Swagers’ assignment of error with regard
to Exhibit 109 for two related reasons. First, the Swagers waived the right to entry of
excised portions of exhibit. We do not address an argument asserted for the first time on
appeal. RAP 2.5(a); Kanam v. Kmet, 21 Wn. App. 2d 902, 913, 508 P.3d 1071(2022).
25
No. 38438-1-III,
Swager v. CCM Holdings, LLC
Second, the trial court lacked any duty to separate the admissible from the
inadmissible on its own initiative. Bell v. O’Connor Transportation Ltd., 94 Idaho 406,
408, 489 P.2d 439 (1971), overruled on other grounds by Owen v. Burcham, 100 Idaho
441, 599 P.2d 1012 (1979). Reviewing courts usually apply this rule to circumstances
when the appellant complains that the trial court admitted the exhibit without excising
inadmissible sections. Legal logic compels the same conclusion when the appellant
faults the trial court for failing to excise inadmissible portions.
Exclusion of Expert Witness
Tamera and Marty Swager next contend that the trial court erred when excluding
testimony from snow and ice removal expert Lisa Rose. According to the Swagers, the
trial court erred because Rose could have helped the jury understand the nature of the
snow removal industry and learn the steps that a reasonable snow removal contractor
would undertake under the circumstances. In so doing, the trial court employed the
wrong legal standard under ER 702. This assignment of error poses the appeal’s most
difficult question.
Inland Lawn, in its brief, repeats at length the trial court’s evidentiary ruling but
provides no autonomous analysis as to the admissibility of Lisa Rose’s opinions finding
fault against it. Inland Lawn instead summarily argues that the trial court holds wide
discretion and that it did not abuse its discretion. The snow removal contractor’s failure
to independently assay admissibility impedes our ability to rule in its favor.
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No. 38438-1-III,
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We will not repeat verbatim the lengthy comments of the trial court preceding its
exclusion of Lisa Rose’s opinions. We applaud the trial court’s thorough and astute
analysis of Rose’s testimony, which analysis witheringly identified flaws in Rose’s
opinions and her method of arriving at the opinions. Nevertheless, we conclude that the
trial court’s scrutiny of the testimony bears on the believability of the opinions, not on the
admissibility of the opinions.
We dissect the trial court’s extensive comments and list the possible rationales
behind the court’s order of exclusion.
1. Lisa Rose had not visited the site and lacked knowledge of the
site’s grade, shape, or square footage.
2. Rose did not disclose whether she knew about the physics of
snow and ice, the nature of magnesium chloride, and the temperatures at
which a deicer works.
3. Rose is part of an organization attempting to market itself as
creating higher standards.
4. Rose adopted the standard of care in a quest to professionalize the
snow removal industry.
5. Rose could not identify any contractor in Spokane who belonged
to her organization.
6. Rose never mentioned that her proposed standard was a widely
used standard.
7. Rose did not identify any contractor in Spokane who followed the
standard.
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No. 38438-1-III,
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8. Rose conceded that no government entity had adopted her
recommended standard.
9. Rose never explicitly opined that a hazardous condition existed
on the parking lot on January 4.
10. Rose did not expressly aver that a return to monitor the parking
lot was needed to create a safe condition for people traversing the lot.
11. Rose’s opinion sought to allocate liability for falls among the
snow removal contractor, the store, and the property owner when
Washington law already performed this task.
12. Rose’s suggested standards did not relate to safety.
13. Rose never identified any data, scientific studies, or technical
research she had performed.
14. Rose did not ground her opinion on technical information or her
experience.
15. Scientific, technical, or other specialized knowledge is not
necessary for the trier of fact to understand the evidence presented or to
determine the fault of Inland Lawn.
16. Rose lacked an ability to explain scientific facts or technical
knowledge about snowplowing, snow removal, ice removal, and ice
treatment.
17. The purpose of the proposed standard is to enable the snow
removal contractor to charge more for services.
18. The offered standard would impose undue costs on the
contractor or property owner.
19. Rose did not testify that her recommended standard would
reduce accidents.
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No. 38438-1-III,
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20. Lisa Rose presented no technical, scientific or other specialized
knowledge that showed her proposed standard would have prevented
Tamera Swager’s fall.
The superior court may not have based its decisions on some of the twenty
rationales and instead only commented on some of them in passing. Many of the twenty
rationales for the evidentiary ruling overlap. Some may extend beyond the purported
ruling that the testimony would not aid the trier of fact. For example, some of the
comments suggest that the court rejected Lisa Rose as a qualified expert, despite
commenting to the contrary. Rationale 16 hints that Rose may have expertise in snow
and ice removal, but may not be an effective communicator. Some rationales spill over
into Rose’s opinions regarding fault on the part of the property owner. Rationales 19 and
20 addressed causation rather than fault of Inland Lawn.
Tamera and Marty Swager suggest that the trial court concluded that no expert, no
matter the qualifications and confirmation of her opinions by studies or research, should
testify to standards of snow removal. We do not read the court’s comments this way.
This court reviews a trial court’s decision to exclude an expert witness’ testimony
for abuse of discretion. Driggs v. Howlett, 193 Wn. App. 875, 896, 371 P.3d 61 (2016).
Discretion is abused if it is exercised on untenable grounds or for untenable reasons.
Driggs v. Howlett, 193 Wn. App. 875, 897 (2016). A trial court’s decision is based on
untenable grounds and requires reversal if reached by applying the wrong legal standard,
by relying on unsupported facts, or by adopting a view that no reasonable person would
29
No. 38438-1-III,
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take. Hoffman v. Kittitas County, 4 Wn. App. 2d 489, 495, 422 P.3d 466 (2018); Driggs
v. Howlett, 193 Wn. App. 875, 897 (2016). With this standard of review, we analyze the
facts and legal standards on which the trial court based its ruling of exclusion.
Under ER 702:
[i]f scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
Expert testimony is typically admissible if:
(1) the expert is qualified,
(2) the expert relies on generally accepted theories in the scientific
community, and
(3) the testimony would be helpful to the trier of fact.
Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 352, 333 P.3d 388 (2014).
The trial court faulted Lisa Rose for not having performed scientific tests or garner
data from studies to bolster the standard of care she proposed. We note, however, despite
the three-part test of admissibility found in Johnston Forbes referencing theories in the
scientific community, practical experience is sufficient to qualify a witness as an expert.
State v. Yates, 161 Wn.2d 714, 765, 168 P.3d 359 (2007), abrogated by State v. Gregory,
192 Wn.2d 1, 427 P.3d 621 (2018). One may serve as an expert witness based on
observations on the particular subject alone. Hannah v. Gregg, Bland & Berry, Inc., 840
So. 2d 839, 851 (Ala. 2002). An expert may testify based solely on experience without
referencing industry literature. Primiano v. Cook, 598 F.3d 558, 566 (9th Cir. 2010).
30
No. 38438-1-III,
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In certain fields, experience is the predominant, if not sole, basis for a great deal of
reliable expert testimony. Siring v. Oregon State Board of Higher Education ex rel.
Eastern Oregon University, 927 F. Supp. 2d 1069, 1074-76 (D. Or. 2013). Assessing the
reliability of expert testimony based on specialized knowledge, unlike scientific or
technical expert testimony, is not contingent upon a particular methodology or technical
framework. Hangarter v. Provident Life and Accident Insurance Co., 373 F.3d 998,
1018 (9th Cir. 2004).
The trial court primarily excluded Lisa Rose’s testimony on the basis that her
opinions did not assist the jury in reaching a verdict. Expert testimony is helpful to the
jury if it concerns matters beyond the common knowledge of the average layperson and is
not misleading. State v. Groth, 163 Wn. App. 548, 564, 261 P.3d 183 (2011). Courts
generally interpret possible helpfulness to the trier of fact broadly and will favor
admissibility in doubtful cases. Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d
939 (2004); Driggs v. Howlett, 193 Wn. App. 875, 905 (2016); Miller v. Likins, 109 Wn.
App. 140, 147-48, 34 P.3d 835 (2001).
On the one hand, if the issue involves a matter of common knowledge about which
inexperienced persons are capable of forming a correct judgment, there is no need for
expert opinion. State v. Smissaert, 41 Wn. App. 813, 815, 706 P.2d 647 (1985). On the
other hand, the law does not require that expert testimony be completely beyond the
jury’s sphere of knowledge. In re Japanese Electronic Products Antitrust Litigation, 723
31
No. 38438-1-III,
Swager v. CCM Holdings, LLC
F.2d 238, 279 (3d Cir. 1973), rev’d on other grounds sub nom. Matsushita Electronic
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986). An expert witness may provide helpful testimony even though some jurors
possess general knowledge of the subject matter. People v. Lindberg, 45 Cal. 4th 1, 190
P.3d 664, 698, 82 Cal. Rptr. 3d 323 (2008). Despite jurors being equipped to render
judgments on the basis of their common knowledge and experience, experts may have
specialized knowledge to bring to the issue which would be helpful. United States v.
Hall, 93 F.3d 1337, 1342 (7th Cir. 1996); In re Japanese Electronic Products Antitrust
Litigation, 723 F.2d 238, 279 (3d Cir. 1983), rev’d on other grounds sub nom.
Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct.
1348, 89 L. Ed. 2d 538 (1986). No bright line separates issues within the comprehension
of jurors from those that are not. In re Japanese Electronic Products Antitrust Litigation,
723 F.2d 238, 279 (3d Cir. 1983), rev’d on other grounds sub nom. Matsushita Electronic
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986). In People v. Lindberg, a prosecution for a hate murder, the court allowed an
expert witness to testify that the defendant was a White supremacist even though some
jurors held knowledge of the subject matter.
We expect that most jurors have engaged in shoveling snow. But we also expect
the common juror to lack a background in the snow removal industry or removing snow
from large parking lots. Presumably the average juror does not know about the thaw and
32
No. 38438-1-III,
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refreeze phenomenon attended to deicer. The jury would not know how often a
contractor or property manager should inspect the lot. The jury did not know the
importance of allocating the responsibility to monitor the lot for changing and dangerous
conditions. Thus, we conclude that the jury could render a more informed decision as to
the standard of care when performing snow removal with Lisa Rose’s testimony.
Although Lisa Rose may not be a chemist with understanding of magnesium
chloride, she possessed years of experience in the snow removal industry. She must have
known about the nature of deicer and its failure to perform as time passed. Kelly
Peterson, Inland Lawn’s part owner and manager, testified to refreezes after the use of
deicer one to two days later.
Thus, Inland Lawn’s witness testified based on his expertise, rather than a degree
in chemistry, as to the nature of deicer. Lisa Rose should have been able to rebut or
confirm Kelly Peterson’s testimony. During her voir dire, Rose averred that magnesium
chloride on the parking lot would have undergone melting and later refreezing. Rose’s
testimony that Inland Lawn should have monitored the lot thereafter or at least reached an
agreement with Value Village or the property owner about who would monitor the lot
after an instance of snow removal would coincide with testimony about deicer.
Inland Lawn’s Kelly Peterson also testified at trial that he did not know what
occurred after the deicer waned in effect. Lisa Rose could have enlightened the jury on
this question.
33
No. 38438-1-III,
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During his testimony, Kelly Peterson agreed someone should monitor the parking
lot after Inland Lawn’s work, but denied that the party responsible should be the snow
removal contractor. This testimony bolsters Lisa Rose’s testimony of the need to
monitor. More importantly, Rose should have been able to contradict Peterson’s
testimony that the contractor is never the party responsible for monitoring. Since Inland
Lawn’s own manager declared a need for monitoring and none of the witnesses on behalf
of any defendant testified to the assignment of this duty, the jury needed to hear from
Rose as to the need of the property manager and the snow removal contractor to discuss
and assign this responsibility to one party.
An example close to home entails the provision of services by an estate planning
attorney when an accountant and financial adviser also assists the client in such planning.
The attorney may expect one of the other two professionals to perform a task, such as
research the tax consequences of a provision in a will, whereas the other two
professionals may expect the attorney to perform the task. The task is never completed to
the harm of the client. If and when the client sues the attorney for malpractice, we would
anticipate the admissibility of an expert witness to testify that the attorney violated the
standard of care by failing to discuss and resolve with the accountant and financial
adviser the identity of the person who would research the tax consequences. The expert
attorney could primarily rely on his years of experience as estate planning attorney rather
34
No. 38438-1-III,
Swager v. CCM Holdings, LLC
than a published standard of care or a study performed by practitioners about harm
caused to clients.
The trial court faulted Lisa Rose for not having been to the site. We also note that
Rose, during the offer of proof, never expounded on the detailed conditions present in the
parking lot such as was testified to by Scott Mankin. We also recognize that the expert’s
opinion must possess a factual basis. Maurice v. Chester Housing Associates Limited
Partnership, 189 Conn. App. 754, 208 A.3d 691 (2019). Still, unless the judge requires
otherwise, the expert may testify in terms of opinion or inference and give reasons
therefor without prior disclosure of the underlying facts or data. ER 705. The opposing
party may cross examine the expert thereafter. ER 705. Regardless, Rose based her
opinion on the facts of the snow storms on January 1, the snow removal and application
of deicer on January 1, the failure to monitor the parking lot thereafter, and slick
conditions on the parking lot on January 4. These facts suffice for the opinions she
reached.
An expert may base her opinion testimony on her belief or idea rather than on
direct knowledge of the facts presented in the case. State v. Demery, 144 Wn.2d 753,
760, 30 P.3d 1278 (2001); State v. Sutherby, 138 Wn. App. 609, 617, 158 P.3d 91
(2007), aff’d on other grounds, 165 Wn.2d 870, 204 P.3d 916 (2009). The expert need
not have spoken to the plaintiff. Primiano v. Cook, 598 F.3d 558, 567 (9th Cir. 2010).
35
No. 38438-1-III,
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We assume that an expert who testifies to the negligence of one engaged in a
profession must identify a standard of care accepted in the industry. Novak v. Capital
Management & Development Corp., 386 U.S. App. D.C. 395, 570 F.3d 305, (2009). We
conclude that Lisa Rose met this requirement. She testified to a publication that she
assisted in editing that the industry considers as its Bible. She based her opinions on
standards and protocols outlined in the publication.
The trial court faulted Lisa Rose for failing to know whether any snow removal
contractor in Spokane followed the standards published in the industry Bible.
Nevertheless, Rose avowed that the standards that apply to Erie, Pennsylvania also apply
to Spokane. Inland Lawn cites to no cases that require an industry national expert to
identify local practitioners who follow the industry standards.
No Washington decision addresses the admissibility of expert testimony with
regard to snow and ice removal. A handful of foreign decisions address this topic in the
context of a slip and fall on icy premises.
Most of the decisions cover the qualifications, or lack thereof, of the purported
expert in snow removal. In Maurice v. Chester Housing Associates Limited Partnership,
189 Conn. App. 754, 208 A.3d 691 (2019), the reviewing court affirmed the trial court’s
refusal to allow Dee Ann Maurice’s expert to testify as an expert in the field of snow
removal. The expert’s field was building code enforcement. He had plowed snow as a
young man. On questioning, the expert did not disclose that he had been to school or
36
No. 38438-1-III,
Swager v. CCM Holdings, LLC
attended seminars on snow removal or read books or educational materials on snow
removal.
In Spencer v. Wal-Mart Stores East, L.P., 930 A.2d 881 (Del. 2007), the state
Supreme Court affirmed the exclusion of an architect from testifying about snow
removal. The architect had no experience in snow removal and formed his opinion by
pulling phrases and sentences from snow plowing and safety publications. He was not a
member in any professional organization in the field of snow and ice removal. His only
experience was helping his father with snow plowing as a teenager.
In Tucker v. Bensalem Township School District, 987 A.2d 198 (Pa. Commw. Ct.
2009), the reviewing court affirmed that trial court’s exclusion of an architect who Janet
Tucker sought to testify that the school district had been negligent in failing to take
corrective action to prevent ice from forming in the parking lot or taking measures to
treat the ice with chemicals.
The lack of qualifications of the experts in Maurice v. Chester Housing
Associates, Spencer v. Wal-Mart Stores East, and Tucker v. Bensalem Township School
District, when compared to the qualifications of Lisa Rose, highlight how Rose’s
opinions would be helpful to a jury and were not based on her personal predilections, but
on experience. Rose worked in the snow removal industry for decades. She was a
member of snow and ice professional organizations. To repeat, she helped to edit the
Bible of snow removal.
37
No. 38438-1-III,
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In Tucker v. Bensalem Township School District, the reviewing court also
excluded the architect’s testimony in part because the court deemed snow and ice
removal from a parking lot to be within the common knowledge and experience of a lay
person. We wonder how judges are able to determine what the common juror knows and
does not know. Our experience conflicts with the conclusions of the Pennsylvania court
because the details of the removal and the employment of deicer are not always known to
jurors.
To repeat, Lisa Rose testified to her assistance in the publishing of a book on snow
removal. One factor when considering whether to permit an expert’s opinion is the
publication of a text. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Hoy v. DRM, Inc., 2005 Wy. 76114 P.3d
1268.
In some foreign decisions, the reviewing court approved of the use of a snow and
ice expert. In Tamhane v. Citibank, N.A., 61 A.D.3d 571, 877 N.Y.S.2d 78 (2009), the
appellate court held that the trial court properly denied defendant Citibank’s motion to
preclude testimony from Ravindra Tamhane’s expert. Tamhane slipped on ice at a bank
branch. The expert, in response to a summary judgment motion to dismiss, signed an
affidavit explaining how ice formed by a thaw-freeze condition whereby snow and ice
collected on the roof of the bank building, thawed and dripped on to the ground and
refroze. The appellate court reasoned that the expert testimony could be submitted for
38
No. 38438-1-III,
Swager v. CCM Holdings, LLC
the purpose of explaining to the jury the nature of the alleged thaw-freeze condition. The
expert opinion would assist the jury in explaining measures that could have been taken to
ameliorate the condition.
In Bowins v. Euclid General Hospital Association, 20 Ohio App. 3d 29, 484
N.E.2d 203 (1984), the appellate court held that, while the methods and quality of snow
removal of small areas are matters well within the general competence of a jury in this
vicinity, the techniques for removing snow and ice from a large commercial parking area
are not. Therefore, expert testimony which aids the jury in understanding the evidence or
in determining the facts in issue should not be excluded. A visitor of a hospital’s patient
slipped on ice on the hospital grounds.
We now address some of the other twenty rationales we divined from the trial
court’s ruling. The trial court criticized Lisa Rose’s testimony in part because she never
declared that employment of her standard of care would have prevented the fall of
Tamera Swager. But we know of no rule that requires an expert, who testifies to liability
or the standard of care, to also provide an opinion on causation. In a medical malpractice
suit, an expert must testify to causation, but that expert need not be the same as the expert
who testifies to liability. Reliable expert testimony need only be relevant, and need not
establish every element that the plaintiff must prove, in order to be admissible. Primiano
v. Cook, 598 F.3d 558, 565 (9th Cir. 2010).
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The trial court, based on several facts, lessened the credibility of Lisa Rose
because of a pecuniary interest in promulgating standards. Nevertheless, financial
interest in the testimony does not form a basis for exclusion of the evidence from the
jury. An expert witness’s pecuniary interest in the outcome of a case goes to the
probative weight of testimony, not its admissibility. Cruz-Vazquez v. Mennonite General
Hospital, Inc., 613 F.3d 54, 59 (1st Cir. 2010); Den Norske Bank AS v. First National
Bank of Boston, 75 F.3d 49, 58 (1st Cir. 1996). An expert may render an opinion based
on his many years in a business despite the opinion advancing his economic interests.
Merritt v. Dueitt, 455 So.2d 792, 792-93 (Miss. 1984). The opponent may instead attack
his credibility on cross-examination. Merritt v. Dueitt, 455 So.2d 792, 792-93 (Miss.
1984).
The trial court excluded Lisa Rose’s testimony in part because no government
entity had adopted her standard. Nevertheless, the law does not require the imprimatur of
a standard of care proposed by the proponent. An expert may testify that the defendant
violated a standard of care even if the defendant complied with government standards.
Minner v. Am. Mortgage & Guar. Co., 791 A.2d 826, 866 (Del. Super. Ct. 2000).
The trial court excluded Lisa Rose’s opinions in part because Washington law
purportedly already allocated liability for falls among the snow removal contractor, the
store, and the property owner. On appeal, Inland Lawn cites no Washington statute or
decision that allocates the risk between the various actors.
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The trial court may have criticized Lisa Rose for her failure to adequately explain
her opinions. Nevertheless, Inland Lawn cites no rule that requires an expert to be an
effective communicator.
We recognize that the standard proposed by Lisa Rose could impose monetary
losses on the snow removal industry. Nevertheless, Inland Lawn can argue to the jury the
unfairness of Rose’s proposed standard and its burden on contractors. Snow removal
contractors can fight the costs by raising rates based on higher insurance premiums
resulting from such a standard. The legislature may also fix any harmful repercussions to
the snow removal industry.
We add some additional principles of laws as we end our analysis. The expert’s
testimony need not be conclusively reliable or indisputably valid before admitted into
evidence. State v. Corriher, 184 N.C. App. 168, 645 S.E.2d 413 (2007). Shaky but
admissible evidence is to be attacked by cross-examination, contrary evidence, and
careful instruction on the burden of proof, not exclusion. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993). When a proponent establishes the
baseline foundation of an opinion, sifting through the contradictory evidence is a task
reserved for the jury. Hale County A&M Transport. LLC v. City of Kansas City, Mo.,
998 F. Supp. 2d 838, 845 (W.D. Mo. 2014).
Tamera Swager’s counsel could have laid a firmer foundation by asking Lisa Rose
to assume certain facts, asking her to opine on those facts, and questioning her as to the
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acceptance of the standard in the snow removal industry. Rose also did not assist the
Swagers’ offer of proof when failing to directly answer some of counsel’s and the trial
court’s questions. But information could have been developed by further testimony and
was not essential to the admission of the opinions. Gaps in an expert witness’s
qualifications or knowledge generally go to the weight of the witness’s testimony, not its
admissibility. Robinson v. GEICO General Insurance Co., 447 F.3d 1096, 1100-01 (8th
Cir. 2006); Lauria v. National Railroad Passenger Corp., 145 F.3d 593, 598 (3d Cir.
1998).
We recognize that we should defer to the superior court. We should reverse,
however, when the trial court’s ruling conflicts with many principles of law despite the
diligent work of, and our respect for, the trial court. Defects in Lisa Rose’s testimony
impacted its credibility, not admissibility.
Tamera and Marty Swager argue that excluding Lisa Rose was prejudicial to the
outcome of the case. When a trial court makes an erroneous evidentiary ruling, the
question on appeal becomes whether the error was prejudicial, for error without prejudice
is not grounds for reversal. Driggs v. Howlett, 193 Wn. App. 875, 903 (2016). An
erroneous evidentiary ruling is one made based on a trial court’s application of the wrong
legal standard. Aubin v. Barton, 123 Wn. App. 592, 610, 98 P.3d 126 (2004); Driggs v.
Howlett, 193 Wn. App. 875, 897 (2016); Hoffman v. Kittitas County, 4 Wn. App. 2d 489,
495 (2018).
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The case against Inland Lawn hinged on whether the snow removal contractor
performed to the standard of care expected of a contractor. The trial court’s exclusion of
the plaintiff’s only expert on this subject must have been prejudicial. The court’s ruling
particularly harmed Tamera and Marty Swager when Inland Lawn’s witnesses testified to
its practices of snow removal and that its practices were acceptable. Inland Lawn’s
closing argument unfairly took advantage of the exclusion of Lisa Rose’s testimony when
its counsel intoned that the company’s operations manager Kodi Bilbrey should be
considered an expert on snow removal, that Inland Lawn performed adequately, and that
no one on behalf of the Swagers testified that Inland Lawn performed negligently.
Jury Instruction
Tamera and Marty Swager next assign error to the superior court’s failure to
deliver a jury instruction that delineated a snow removal contractor’s duty to exercise
care during snow and ice removal from a parking lot. Determining whether to give a
certain jury instruction is within a trial court’s discretion, so such decisions are reviewed
for abuse of discretion. Fergen v. Sestero, 182 Wn.2d 794, 802, 346 P.3d 708 (2015).
Under this standard, we will reverse a trial court’s decision only if the decision applies
the wrong legal standard, relies on unsupported facts, or adopts a view that no reasonable
person would take. Hoffman v. Kittitas County, 4 Wn. App. 2d 489, 495 (2018). The
controlling rule for this appeal is the trial court’s refusal of a requested instruction is
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reversible error only when the instruction is a correct statement of law. Izett v. Walker,
67 Wn.2d 903, 908, 410 P.2d 802 (1966).
At trial, Tamera and Marty Swager used the text of Restatement (Second) of Torts
§ 383 (AM. L. INST. 1965) as their proposed jury instruction 10 on a contractor’s duty to
invitees:
[o]ne who does an act or carries on an activity upon land on behalf
of the possessor is subject to the same liability, and enjoys the same
freedom from liability, for physical harm caused thereby to others upon and
outside of the land as though he were the possessor of the land.
CP at 1230. We juxtapose § 383 with § 384 of Restatement (Second) of Torts. At trial,
Inland Lawn contended that § 384 controlled its standard of care. The latter Restatement
section reads:
One who on behalf of the possessor of land erects a structure or
creates any other condition on the land is subject to the same liability, and
enjoys the same freedom from liability, as though he were the possessor of
the land, for physical harm caused to others upon and outside of the land by
the dangerous character of the structure or other condition while the work is
in his charge.
CP at 611. We conclude that neither § 383, nor § 384, controls the facts of this case.
Tamera Swager complains about deicer being applied, the deicer thawing the
snow, and ice reforming after the passage of time. Inland Lawn’s instrumentalities did
not directly strike Swager. Instead, Inland Lawn’s work created a condition on the land.
Therefore, § 383 did not govern Inland Lawn’s standard of care.
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The Swagers argue that § 383 governs their claim against Inland Lawn based on
Williamson v. Allied Group, Inc., 117 Wn. App. 451 (2003). The Swagers argue that this
court in Williamson relied on the text of § 383 when holding that the contractor owed a
tenant the same duty as the one owed by the landlord to the tenant. The Swagers fail to
recognize that, although this court noted in Williamson that § 383 outlines the general
rule that “the duty owed by a landlord may also be owed derivatively by a person who
acts on behalf of the landlord,” this court allocated liability to the contractor by relying
not on § 383, but on § 384. Williamson v. Allied Group, Inc., 117 Wn. App. 451, 456
(2003).
Section 384 applies only while the contractor remains in charge of the work. By
the time of Tamera Swager’s fall, Inland Lawn was actively performing no snow removal
services at Value Village.
Dismissal of Comparative Fault Defense
Tamera and Marty Swager contend that the superior court committed error when
refusing to grant their motion to dismiss the affirmative defense of comparative fault.
They argue that the defendants failed to produce any evidence supporting the defense.
Inland Lawn responds that substantial evidence supported the inference that Swager’s
contributory negligence played a role in causing the injuries she sustained. This court
reviews de novo a trial court’s decision to deny a motion for a judgment as a matter of
law. Budd v. Kaiser Gypsum Co., Inc., 21 Wn. App. 2d 56, 72, 505 P.3d 120 (2022).
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A trial court appropriately denies a motion for judgment as a matter of law if,
viewing the evidence most favorably to the nonmoving party, substantial evidence
sustains a verdict for the nonmoving party. Bishop of Victoria Corporation Sole v.
Corporate Business Park, LLC, 138 Wn. App. 443, 453, 158 P.3d 1183 (2007). Evidence
is substantial to support a verdict if it is sufficient to persuade a fair-minded, rational
person of the truth of the declared premise. Bishop of Victoria Corporation Sole v.
Corporate Business Park, LLC, 138 Wn. App. 443, 454 (2007).
A claimant is comparatively at fault or contributorily negligent when she fails to
exercise the reasonable care for her own safety that a reasonable person would have used
under the existing facts and circumstances and her conduct legally contributed to her
injury. Heinlen v. Martin Miller Orchards, 40 Wn.2d 356, 360, 242 P.2d 1054 (1952). A
claimant also holds comparative fault when unreasonably assuming a risk or
unreasonably failing to avoid an injury. RCW 4.22.015.
During trial, the defendants did not call any witnesses to the stand to directly
declare that Tamera Swager acted unreasonably or failed to exercise due care when
traversing the Value Village parking lot. Nevertheless, testimony given by Swager and
Scott Mankin sufficed to create a question of fact as to comparative fault. Swager
testified that she had experienced Spokane winters before, had previously walked on ice,
and observed compact snow and ice in Value Village’s parking lot before entering it. She
failed to look down once she entered the lot. Mankin averred that he readily saw ice in
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No. 38438-1-III,
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the parking lot when he traveled to Value Village to pick up the Swagers, that the icy
condition of the parking lot was open and obvious, and that the ice was “very slick” when
he walked on it. In addition to a reasonable jury being able to conclude that Swager did
not exercise proper care when proceeding to walk across the parking lot, a reasonable
jury could conclude that she acted unreasonably by failing to tell her husband to walk
beside her so that she could clutch his arm.
Reported decisions narrate varying circumstances, including differences in the size
of ice on a walkway and the open nature of the ice. Nevertheless, many cases hold that
the fault of the plaintiff when slipping on ice constitutes a question for a jury. Carter v.
Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015); Gibbs v. Speedway, LLC, 2014 – Ohio –
3055, 15 N.E.3d 444; Dukat v. Leiserv, Inc., 6 Neb. App. 905, 578 N.W.2d 486 (1998);
McCabe v. Easter, 128 A.D.2d 257, 516 N.Y.S.2d 515 (1987); Rossow v. Jones, 404
N.E.2d 12 (Ind. Ct. App. 1980).
Allocation of Fault on Retrial
We are directing a new trial because of evidentiary error. Parties in the previous
trial included not only the parties on appeal, Tamera and Marty Swager and Inland Lawn,
but also two other defendants: CCM Holdings and Value Village. The Swagers did not
appeal the partial verdicts favoring them against CCM Holdings and Value Village that
also reduced their recovery because of substantial comparative fault. After the trial,
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No. 38438-1-III,
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Swager settled with both CCM Holdings and Value Village. As a result, the retrial will
change significantly. CCM Holdings and Value Village will occupy empty chairs.
As a result of the vacant chairs and the release of CCM Holdings and Value
Village, this court posed five overlapping questions for the parties to answer. In
answering the questions, the parties were to assume that the court concluded that
substantial evidence sustained the previous jury’s finding of comparative fault of Tamera
Swager and the court reversed the trial court because of evidentiary error. The parties
responded to these questions:
1. Are appellants bound by the earlier jury’s allocation of fault to
Tamera Swager?
2. How does the jury allocate fault among Tamera Swager and
Inland Lawn when the previous jury never included any fault on the part of
Inland Lawn in the calculation of fault among the parties?
3. May the jury allocate to Inland Lawn a portion of fault that was
allocated to Value Village and CCM Holdings in the earlier verdict?
4. Conversely, are appellants limited to only transferring some of
Tamera Swager’s allocated fault to Inland Lawn?
5. Do appellants receive a new trial on damages?
Letter from Court Clerk Tristen Worthen, Division III of the Washington State Court of
Appeals, No. 38438-1-III (Feb. 2, 2023). We now proceed to answer the questions. We
address liability and allocation of fault first, before whether either party receives a new
trial on damages.
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Tamera and Marty Swager maintain that, on retrial, the jury must decide anew
whether the two nonparticipating defendants bear any fault and, if so, the jury must assess
the portion of fault to assign to each of them. The Swagers also argue that they are not
bound by the prior jury’s finding of seventy percent fault against Swager. Conceivably,
under the Swagers’ position, the new jury could hold Inland Lawn one hundred percent
responsible for all of Swager’s damages. The Swagers also seek a new trial on damages.
Inland Lawn contends that the Swagers are bound by the first jury’s finding of
seventy percent fault on Tamera Swager. Conversely, according to Inland Lawn, the
second jury may only allocate to it the remaining thirty percent of blame imposed by the
first jury on CCM Holdings and Value Village. Inland Lawn, in turn, argues that the
Swagers are bound by the first jury’s assessment of damages. Therefore, since the other
two defendants already paid thirty percent of the Swagers’ damages, the Swagers have
been paid in full. According to Inland Lawn, allocating some of the thirty percent of fault
to it accomplishes nothing such that we should dismiss the Swagers’ appeal. Inland
Lawn never forwarded this contention until we asked the parties to assume we would
reverse based on evidentiary error. We consider each side’s position extreme and fashion
a resolution in between the two zealous stances. We hold that the Swagers are bound by
the former jury’s finding of fault on Tamera Swager. We also hold that the Swagers are
bound by the jury’s findings of negligence of Value Village, but not CCM Holdings. We
will explain later why we differentiate between Value Village and CCM Holdings. The
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No. 38438-1-III,
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Swagers, however, are not bound by the allocation of fault among the three parties as
measured by the jury. We direct the trial court to instruct the second jury that Swager
and Value Village are both at fault. The trial court will then direct the jury to
respectively determine if CCM Holdings and Inland Lawn were negligent. If the second
jury finds Inland Lawn negligent, it will need to allocate fault among the four parties
without any knowledge of the first jury’s allotment of fault. Finally, we hold that the
Swagers are bound by the first jury’s award of damages. Because Inland Lawn is entitled
to a credit for the sums paid by CCM Holdings and Value Village, Inland Lawn need not
pay any amount to the Swagers unless the jury allocates in the aggregate to CCM
Holdings, Value Village, and Inland Lawn more than thirty percent of the fault to Inland
Lawn.
Some Washington decisions promote a presumption in favor of a new trial on all
issues. Bauman v. Complita, 66 Wn.2d 496, 502, 403 P.2d 347 (1965); Walker v. State,
67 Wn. App. 611, 622, 837 P.2d 1023 (1992), rev’d on other grounds, 121 Wn.2d 214,
848 P.2d 721 (1993). Other decisions recognize the waste of setting aside a verdict in
total when the issues determined by the jury are severable and when no harm will result
from retaining the verdict and judgment on those issues not affected. Cramer v. Bock, 21
Wn.2d 13, 16, 149 P.2d 525 (1944). Decisions multifariously enunciate a principle
emanating from this policy promoting conservation of resources. A new trial may be
limited to certain issues when other issues were distinct and justice does not require
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No. 38438-1-III,
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resubmission of the entire case to the jury. Mina v. Boise Cascade Corp., 104 Wn.2d
696, 707, 710 P.2d 184 (1985); McCurdy v. Union Pacific Railroad, 68 Wn.2d 457, 413
P.2d 617 (1966); Mutual of Enumclaw Insurance Co. v. Gregg Roofing, Inc., 178 Wn.
App. 702, 727, 315 P.3d 1143 (2013). The court may limit the new trial to the issues
affected by the error whenever those issues are entirely distinct and separable from the
matters involved in other issues and the trial can be had without danger of complication
with other matters. Cramer v. Bock, 21 Wn.2d 13, 16-17 (1944). Conversely, when error
touches one part of a jury ruling, retrial is required on all other issues “inseparably
connected” to the tainted issue. Brundridge v. Fluor Federal Services, Inc., 164 Wn.2d
432, 457, 191 P.3d 879 (2008); Myers v. Smith, 51 Wn.2d 700, 705-07, 321 P.2d 551
(1958).
Our decision not only requires the articulation of the guiding principle behind
limiting the scope of new trials but also an examination and synthesis of Washington
decisions. We review the cases in chronological order beginning with the oldest.
Cramer v. Bock, 21 Wn.2d 13 (1944) favors a new trial on all issues. At a time
when contributory negligence acted as a complete bar to recovery, Eleanor Cramer sued
for damages to her automobile sustained in a collision with an automobile driven by
Emma Bock. Bock cross claimed against Cramer for damages to her car and alleged that
Cramer’s negligence caused the collision. The jury returned a verdict for Bock without
awarding her damages. The jury did not disclose whether it ruled against Cramer
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No. 38438-1-III,
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because of contributory negligence or because Bock was not negligent. On its own, the
trial court granted a new trial on the basis of instructional error. The trial court
dismissed, however, Bock’s counterclaim. Bock appealed both the grant of the new trial
and dismissal of her cross complaint. The Supreme Court agreed that the trial court erred
when delivering a jury instruction on the deception of the disfavored driver doctrine
when Brock never testified that the driving of Cramer deceived her. The Supreme Court
affirmed the order for a new trial. The court also agreed with a new trial on both the
complaint and counterclaim because it could not ascertain the reason why the jury ruled
against Cramer.
Bauman v. Complita, 66 Wn.2d 496 (1965) entailed a controlled intersection
collision. The wife of the favored driver, Irwin Bauman, obtained a jury verdict against
the disfavored driver. The wife was a passenger in her husband’s car. The Supreme
Court held that the trial court erred when withdrawing the issue of Irwin Bauman’s
contributory negligence from the jury. Although defendant Louis Complita did not stop
at the stop light, Irwin Bauman may have been able to avoid the collision. Bauman often
drove the route and knew that many trucks did not stop at the light because of a dip in the
road. Bauman asked that the retrial be limited to the issue of contributory negligence.
The Supreme Court disagreed because of a question of fact as to whether Complita was
liable. Some evidence suggested he entered the intersection on an amber light, while
other evidence suggested he entered on a red light.
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In Lahmann v. Sisters of St. Francis of Philadelphia, 55 Wn. App. 716, 780 P.2d
868 (1989), Peter Lahmann died of a pulmonary embolism while a patient at St. Joseph
Hospital. His widow, Patricia Jean Lahmann, sued St. Joseph Hospital. In a special
verdict form, the jury answered that St. Joseph Hospital was negligent. The jury,
however, deadlocked on whether the hospital’s negligence was a proximate cause of
Lahmann’s death. The trial court declared a mistrial and ordered a new trial on both the
issue of negligence and proximate cause. The widow appealed and argued that the new
trial should be limited to proximate cause and damages. According to the widow, the
hospital should be bound by the first jury’s finding of negligence.
In Lahmann v. Sisters of St. Francis of Philadelphia, this court affirmed the award
of a new trial on negligence and proximate cause. We reasoned that the question of
proximate cause could not be resolved without reference to the hospital’s negligent acts.
Patricia Lahmann contended that the hospital committed many acts and omissions that
constituted a breach of duty. Since the answer to the interrogatory in the special verdict
did not identify the actions and omissions that the jury found to be negligent, the second
jury needed to make that determination again. The first jury may only have found
negligence on an act that the second jury found did not cause the death of Lahmann,
while the second jury may find another act caused the death but did not form negligence.
The issues of negligence and proximate cause were not separable.
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Walker v. State, 67 Wn. App. 611 (1992) also suggests a liberal rule in favor of a
new trial on all issues. Robert Walker perished when his truck plummeted over an
embankment. His widow sued the State of Washington, Clallam County, and the Port of
Port Angeles for negligent design, construction, and maintenance of the highway. The
jury found negligence on the part of all three defendants, but also found Walker seventy
percent at fault. On appeal, this court agreed with the widow’s challenges to evidentiary
rulings and jury instructions. The trial court instructed he jury that a motorist must
activate headlights after dark despite an absence of evidence that Walker did not use his
truck’s headlights. The lack of evidence together with a negligence per se jury
instruction potentially misled the jury as to the extent of Walker’s comparative fault. The
trial court also erroneously gave an instruction stating a driver may not pull to the side of
the road to allow an overtaking vehicle to pass. This also potentially misled the jury
about Walker’s fault. The widow asked that the court limit any retrial to the amount of
comparative fault of Walker and preclude the defendants from denying fault. This court
refused. The court followed the presumption in favor of a new trial on all issues. The
issues of defendants’ liability and Walker’s fault were intertwined so that a jury could not
fairly decide one in isolation without danger of injustice to the other.
We now analyze the Washington decisions. If Bauman v. Complita was the only
relevant Washington Supreme Court decision, we would hold that the jury must decide
anew whether Tamera Swager, CCM Holdings, and/or Value Village were to blame for
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No. 38438-1-III,
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the slip and fall. But Bauman v. Complita appears as an outlier. The Supreme Court did
not explain why Complita should receive a new trial on his negligence, regardless of
conflicting facts, when one jury already found him negligent. The first jury nearly
always faces conflicting facts on an issue, including damages, that this court considers
resolved and withholds from new consideration in a retrial. Bauman contradicts
established Washington principles that the court should only submit to the trier of fact
during a retrial those issues infected by some error. Bauman conflicts with the
underlying goal of conserving judicial resources and expense to the parties when the
litigants already enjoyed a fair opportunity for a jury to resolve a question.
The Washington Supreme Court decided both Bauman v. Complita and Cramer v.
Bock when contributory negligence was a complete defense. This court wrote in
Crawford v. Miller, 18 Wn. App. 151, 154, 566 P.2d 1264 (1977):
Heretofore, when contributory negligence was a total defense, the
practice was to grant a retrial of the damage issue when the error concerned
liability in a close case because of the likelihood of a compromise verdict.
Shaw v. Browning, 59 [Wn.]2d 133, 367 P.2d 17 (1961). It was felt that in
such a case, the jury fashioned its own comparative negligence rule. V.
Schwartz, Comparative Negligence § 21.1 (1974). That problem has been
eliminated, it is said, by the adoption of the comparative negligence
formula, RCW 4.22.010, and use of the special verdict form. Prosser,
Comparative Negligence, 51 Mich.L.Rev. 465 (1953); Haugh, Comparative
Negligence: A Reform Long Overdue, 49 Ore.L.Rev. 38 (1969).
We deem the first jury’s determination of fault on the part of Tamera Swager
distinct from the question of fault by Inland Lawn. Swager’s fault when knowingly
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No. 38438-1-III,
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walking on icy conditions bore no relation to Inland Lawn’s alleged failure to monitor
conditions at Value Village other than Inland Lawn’s failure set the stage for the icy
conditions. Conversely, Swager’s unreasonable conduct did not influence whether Inland
Lawn acted negligently. The jury may consider whether Inland Lawn should have known
that someone would slip on the ice when assessing Inland Lawn’s fault, but not that
Swager in particular would eventually fall. The Swagers identify no intermingling nexus
between the fault of Inland Lawn and Swager.
We distinguish Cramer v. Bock because the purported negligence of the plaintiff
and defendant occurred simultaneously, unlike the conduct of Tamera Swager and Inland
Lawn. In Cramer v. Bock the conduct of the other party influenced whether both the
plaintiff and defendant shouldered some of the fault.
The error infecting the first trial concerned the bar of an expert’s testimony that
Inland Lawn acted unreasonably when failing to monitor conditions at Value Village or
failing to discuss with CCM Holdings who should monitor conditions. Expert Lisa Rose
expressed no opinions as to the fault of Tamera Swager.
Tamera and Marty Swager already had a full opportunity to litigate the absence of
fault on the part of Swager. The jury disagreed.
For the same reason that we rule that the second jury will not decide anew whether
Tamera Swager shares some blame for her fall, we hold that the second jury will not
decide afresh whether Value Village shares fault. Value Village did not hire Inland
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Lawn. CCM Holdings hired and dealt directly with Inland Lawn. The fault of Value
Village was distinct from the conduct of Inland Lawn. Lisa Rose did not hold any
opinions about the fault of Value Village. The Swagers assert no interweaving
connection between Value Village’s conduct and Inland Lawn’s conduct such that the
negligence of Inland Lawn might erase or diminish the negligence of Value Village.
We distinguish the question of fault on behalf of CCM Holdings from the question
of fault on behalf of Tamera Swager and Value Village. CCM Holdings hired Inland
Lawn. Swager’s expert Lisa Rose criticized CCM Holdings for not vetting Inland Lawn
before hiring it. More importantly, Rose faulted CCM Holdings for failing to clearly
outline the duties of Inland Lawn under the snow removal contract. Since Rose faulted
both CCM Holdings and Inland Lawn for failing to identify in advance who should
monitor conditions, the respective questions of fault for the two defendants are
intertwined. Thus, the jury should decide anew any fault on the part of CCM Holdings.
Assuming on remand that the second jury finds fault of Inland Lawn, the jury must
allocate the fault of Tamera Swager and Value Village and in possible fault of CCM
Holdings among the three or four responsible parties. RCW 4.22.070(1) declares in part:
In all actions involving fault of more than one entity, the trier of fact
shall determine the percentage of the total fault which is attributable to
every entity which caused the claimant’s damages. . . . The sum of the
percentages of the total fault attributed to at-fault entities shall equal one
hundred percent. The entities whose fault shall be determined include the
claimant or person suffering personal injury or incurring property damage,
defendants, third-party defendants, entities released by the claimant, entities
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with any other individual defense against the claimant, and entities immune
from liability to the claimant. . . . Judgment shall be entered against each
defendant except those who have been released by the claimant or are
immune from liability to the claimant or have prevailed on any other
individual defense against the claimant in an amount which represents that
party’s proportionate share of the claimant’s total damages.
No Washington case addresses whether a plaintiff may gain a new trial on the
allocation of fault when the jury found the plaintiff partially at fault, one of the
defendants partially at fault, and another defendant absent of negligence, but error
infected the defense verdict. One foreign decision tangentially addresses this situation.
Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 689 A.2d 757 (1997), Charles
Kurak, who worked for forty-four years in the presence of asbestos, suffered from
mesothelioma. He sued various manufacturers of asbestos. The jury performed the task
of allocating responsibility among the manufacturers of the product and imposed five
percent of fault on Kurak. The appellate court held that insufficient evidence supported a
verdict against one manufacturer. The court directed a new trial, in which the jury would
reallocate the fault among other manufacturers. Separate from the lack of evidence for
one manufacturer was the problem of a jury question that indicated a strong possibility
that the jury considered inflating the damage award as a means of assuring that Kurak
and his wife received full recovery of damages despite an allocation of partial fault to
Kurak or an allocation of fault to manufacturers who could not pay. The appeals court
ruled that the trial court erred when it refused to remind the jury that it was obliged to set
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damages without regard to the apportionment of fault. In a murky decision, the New
Jersey court, because of the many complicating factors, opted to give Kurak the choice of
either accepting the imposition of five percent fault on him or face a new trial on both
liability and damages.
In Kurak v. A.P. Green Refractories Co., the court only allowed the plaintiff the
option to erase the finding of his five percent fault because of the jury question that
wished to grant him a higher award so that his allocated fault did not reduce what he
otherwise would receive. More importantly, the court, when dismissing one defendant,
ruled that the second jury must reallocate responsibility among all defendants. We agree
with the New Jersey court’s direction that, on remand, the jury must reallocate fault
among all responsible parties. The percentage of fault by Tamera Swager and other
responsible defendants obviously intertwine. Thus, we cannot separate the evidentiary
error with the allocation of fault among responsible parties.
One might argue that the Swagers are bound by the jury determination of Tamera
Swager being seventy percent at fault. In turn, assuming the jury finds Inland Lawn at
fault, the jury should only deduct some of the percentage of fault from the other
defendants. But no reason exists to distinguish the fault of other defendants from the
fault of Swager. The first jury never calculated the fault on the defendants as a team.
RCW 4.22.070(1) requires the jury to assess separately the percentage of fault for each
responsible party, not the defendants combined and the plaintiff by herself. A finding of
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liability against Inland Lawn can just as easily decrease the percentage of fault of Swager
as CCM Holdings and Value Village.
We recognize that the Swagers, on retrial, lack motivation to assert or submit
evidence of negligence on behalf of CCM Holdings and Value Village. Nevertheless, we
anticipate that Inland Lawn will submit such testimony. The retrial will not differ from
any other trial with an empty chair defendant.
Damages on Retrial
Washington courts have repeatedly ruled that, when the appeal challenged only
rulings regarding liability, the parties are bound by the first jury’s damages award during
any retrial on liability. Mina v. Boise Cascade Corp., 104 Wn.2d 696, 710 P.2d 184
(1985); France v. Peck, 71 Wn.2d 592, 599, 430 P.2d 513, 517 (1967); Nelson v.
Fairfield, 40 Wn.2d 496, 244 P.2d 244 (1952); Chau v. City of Seattle, 60 Wn. App. 115,
802 P.2d 822 (1991); Crawford v. Miller, 18 Wn. App. 151 (1977). The Washington rule
follows the prevailing, if not universal rule, that a full retrial is ordinarily required only
when the issues of liability and damages are interwoven. 58 AM. JUR. 2d New Trial § 26
(2023).
An anomaly in Washington decisions is Bauman v. Complita, 66 Wn.2d 496
(1965). We already discussed the facts of the case and the ruling that directed the second
jury to decide the fault of both the Irwin Bauman and Louis Complita. The court
surprisingly even granted Complita a new trial on damages. The court wrote:
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Nor should the new trial be limited solely to the issue of liability.
The question presented is the converse of that usually presented, of whether
the new trial should be limited to the issue of damages. The point is a
narrow one, and the cases involving it are few. We recognize that there are
situations, especially where the evidence as to damages is largely objective
and the extent thereof is not seriously challenged on the appeal, where a
new trial could well be limited to the issue of liability. However, in the
present case, the details of the injury sustained by the plaintiff-driver and
the symptoms thereof are largely subjective and supplies by him. The
proof as to liability and as to most of the damages comes from the same
source and should be evaluated by the same jury.
Bauman v. Complita, 66 Wn.2d 496, 502 (1965).
Once again, we consider Bauman v. Complita to be an outlying decision. In all
personal injury cases, the claimant seeks subjective damages. In all personal injury cases,
the claimant’s injuries arise from the defendant’s conduct that relates to liability. If one
followed the quoted passage from Bauman, the retrial would always submit the question
of damages to the second jury.
Twenty years after Bauman v. Complita, the Washington Supreme Court decided
Mina v. Boise Cascade Corp., 104 Wn.2d 696 (1985). Mina entailed a multiple car
accident in a cloud of fog on the familiar and undulating stretch of Interstate 82 between
Yakima and Ellensburg. The jury found defendant Hofstrand Logging negligent, but also
found plaintiff Ezzat Mina eighty-five percent at fault. The Court of Appeals reversed
because of an erroneous instruction that informed the jury that a driver possessed a duty
not to park on the roadway. Mina’s car stalled in a lane of traffic after being struck.
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Hofstrand Logging Company, before the Supreme Court, also argued that, because
of the remand for a new trial, the second jury should also again decide damages in
addition to the fault of the parties. The Supreme Court disagreed because the trial court
had properly instructed the jury on damages and the verdict form separated damages from
liability. On appeal, neither party asserted that the award of damages was excessive or
insufficient. Mina v. Boise Cascade, not Bauman v. Complita, aligns with the
Washington and majority rule.
In Chau v. City of Seattle, 60 Wn. App. 115 (1991), the city of Seattle appealed
the trial court’s order for a trial anew following a mistrial. The order barred the city by
collateral estoppel from relitigating damages assessed by the jury. Vouch Chau died
when struck by a car while crossing a Seattle street in a marked cross walk. Chau’s
family sued the driver and the city of Seattle. The driver never appeared and the trial
court entered a default judgment against him. During deliberations, the jury could not
reach a verdict on liability against the city and announced they were deadlocked. The
court, at the city’s request, directed the jury to complete a special verdict form. Question
1 asked whether the city of Seattle was negligent. The jury stated that it could not answer
that question. The second question, whether negligence of the city was a proximate cause
of the accident, was left unanswered. Questions 3 and 4 asked for the damages sustained
by the decedent’s husband and children. The jury answered both questions, determining
the total damages to be $343,500. The trial court entered judgment against the driver for
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No. 38438-1-III,
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this sum and an order for a new trial on the claim against Seattle that precluded the city
from challenging the amount of the verdict.
On review, in Chau v. City of Seattle, this court wrote that the trial court possessed
discretion to limit the new trial to the issue of liability alone as long as such a limitation
did not work an injustice to either party. The city did not demonstrate any unfairness. It
did not argue the verdict was excessive. The city suggested that the jury might assess
less damages if the driver was no longer a defendant. The court responded that such
argument assumed that the jury violated its oath and no evidence showed a violation.
The court even suggested that collateral estoppel applied. The court noted a burden of
the widow relitigating damages. The court did not emphasize that the city of Seattle had
requested that the jury complete the special verdict.
In Lindquist v. Dengel, 20 Wn. App. 630, 581 P.2d 177 (1978), aff’d, 92 Wn.2d
257, 595 P.2d 934 (1979), a patient brought a malpractice action against a physician for
negligence in diagnosis of tuberculosis. The jury found in favor of the the patient, but
found the patient fifty percent at fault. The trial court reduced the award of damages
from $5,000 to $2,500. On appeal, this court ruled that the trial court erred in giving a
jury instruction that physicians who treat a patient during different and distinct time
periods are liable to the patient only for their own negligence and not for the negligence
of the other. The trial court also erred when refusing to give the patient’s proposed
instruction that the doctor could not avoid liability for aggravation of injuries to his
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patient on the ground that it was caused by a negligent act of later treating physician.
This court also reasoned that, when the actual award to the patient closely approximated
the patient’s special damages, the verdict showed a compromise on issues of liability as
well as damages. Therefore, this court granted the patient a new trial not only on liability
but damages.
In Crawford v. Miller, 18 Wn. App. 151 (1977), Kelly Ann Crawford suffered a
fractured leg while riding her bicycle when a truck driven by Martin Miller struck the
bicycle. In a special verdict, the jury awarded $6,000 to Kelley Ann and $1,500 to her
father. It also found Kelley Ann 50 percent contributorily negligent, reducing the awards
to $3,000 and $750. After trial, the trial court agreed that he committed instructional
error in the relative duties of Crawford and Miller. The trial court ordered a new trial on
both liability and damages. This court reversed the new trial on damages and remanded
only for a new trial on liability and presumably an apportionment of fault if the second
jury found both Crawford and Miller at fault. Crawford sought a new trial on damages
because of the low amount. This court recognized the award to be low, but discerned that
the award was within the evidence presented. Crawford had enjoyed the full opportunity
to present evidence on the question of damages at the first trial. Justice did not require
resubmission of the entire case to the jury when the award was not so low as to, by itself,
justify a new trial. The jury had the opportunity to decide damages and liability
separately.
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The jury found the Swagers’ damages to be $684,961.52. CP 1899, 1942. The
Swagers do not contend that this award approximated Tamera Swager’s special damages.
Neither party contends that the award was excessive or inadequate. Neither party claims
the award of damages constituted part of a compromise verdict. Neither party assigned
error to any evidentiary rulings or jury instructions relating to damages.
The Swagers contend they should receive a new trial on damages because the jury
should be allowed to consider deterrence when awarding compensatory damages.
Nevertheless, in Washington, compensatory damages seek to redress a loss or injury,
while punitive damages serve a deterrent function. Bircumshaw v. State, 194 Wn. App.
176, 206, 380 P.3d 524 (2016). Washington law disallows punitive damages unless
expressly authorized by statute. Broughton Lumber Co. v. BNSF Railway Co., 174
Wn.2d 619, 638 n.14, 278 P.3d 173 (2012). No case law supports the grant of a new trial
on damages in order to allow the jury to deter a defendant from further negligence.
The last sentence of RCW 4.22.060(2) declares:
However, the claim of the releasing person against other persons is
reduced by the amount paid pursuant to the agreement unless the amount
paid was unreasonable at the time of the agreement in which case the claim
shall be reduced by an amount determined by the court to be reasonable.
Both parties are bound by the prior jury award of $684,961.52 in damages. As a result of
RCW 4.22.060 and the payment of $207,289.36 in the aggregate by CCM Holdings and
Value Village, Inland Lawn receives a credit for this sum in the event of any judgment
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against it. Therefore, for any judgment to be entered against Inland Lawn, the jury must
allocate to Inland Lawn, CCM Holdings, and Value Village in the aggregate fault of at
least thirty percent. Otherwise, the judgment against Inland Lawn will not exceed
$207,289.36.
CONCLUSION
We remand to the superior court for a new trial, consistent with this opinion.
A 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.
_________________________________
Fearing, C.J.
WE CONCUR:
______________________________
Siddoway, J.
______________________________
Pennell, J.
66