Melissa Kurtz, Res/cross-app. V. State Of Wa D/b/a Uw And Uw Medical Center, App/cross-res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MELISSA KURTZ, individually,

No. 80686-6-I

Respondent/

Cross-Appellant, DIVISION ONE

v. UNPUBLISHED OPINION

STATE OF WASHINGTON d/b/a

UNIVERSITY OF WASHINGTON

and UNIVERSITY OF

WASHINGTON MEDICAL

CENTER,

Appellants/

Cross-Respondents.

SMITH, J. — Melissa Kurtz, a disabled woman with an increased risk of

bone injury, suffered a serious arm fracture during an assisted transfer from her

wheelchair to a table at the University of Washington Medical Center. Kurtz sued

the State of Washington and the University of Washington Medical Center

(collectively UW) for damages, including the cost of chore services that she

required after the injury. Among other claims, Kurtz alleged that (1) UW had

committed corporate negligence by failing to provide its employees with the

training or tools necessary for safe patient handling and (2) UW had violated the

Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, by failing

to reasonably accommodate her disability. The trial court instructed the jury on

both claims. After jury deliberations began, a juror was dismissed for conducting

Citations and pin cites are based on the Westlaw online version of the cited material.

No. 80686-6-I/2

outside research, and the court denied UW’s motion for mistrial. The jury found

that UW was liable for corporate negligence and denied Kurtz’s other claims.

UW appeals the trial court’s denial of its motion for mistrial and claims that

Kurtz failed to establish both the necessity of her chore services and the

standard of care attributable to UW under her corporate negligence claim. Kurtz

cross appeals the court’s decision not to give a jury instruction defining the term

“reasonable accommodation.”

We conclude that the trial court did not abuse its discretion by denying

UW’s motion for mistrial because it was able to instruct the jury to disregard the

extrinsic information and received assurances from the jurors that they could do

so. Furthermore, viewing the record in the light most favorable to Kurtz, we

conclude that she provided sufficient evidence to establish the necessity of her

chore services and UW’s standard of care. Finally, we conclude that the court

did not abuse its discretion by declining to give Kurtz’s requested jury instruction.

Therefore, we affirm.

FACTS

In December 2015, Kurtz went to the echocardiography lab at the

University of Washington Medical Center for an echocardiogram ordered by her

primary care provider. Kurtz has osteogenesis imperfecta (OI), commonly known

as “brittle bone disease,” which causes her bones to break easily. Due to OI,

Kurtz, who is about 3 feet 6 inches tall, uses a wheelchair. During her

appointment, the UW echosonographer, Margaret Falkenreck, asked Kurtz to

transfer to a specialized echocardiogram table that was four to six inches higher

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than her wheelchair. While Kurtz was generally able to self-transfer to surfaces

that were about the same height as her wheelchair, she was unable to self-

transfer to the echocardiogram table because it was too high. Testimony differed

as to the sequence of events, but, ultimately, another UW echosonographer,

Maurizio Corona, came in to help move her. Corona placed his hands on Kurtz

and bore some amount of her weight to assist the transfer. During the transfer,

Kurtz fractured her upper left arm bone. Due to Kurtz’s OI, the fracture never

healed, and the bone did not fuse back together. Kurtz sued UW for medical

malpractice, corporate negligence, and violation of the WLAD.

Jury trial began on August 6, 2019. Kurtz retained Dr. Nirav Pandya, a

pediatric orthopedic surgeon at the University of California San Francisco, as an

expert witness. Despite several objections from UW, Dr. Pandya testified about

Kurtz’s condition, her injury, and UW’s standard of care for safe patient handling.

Kurtz also introduced into evidence UW’s Safe Patient Handling policy, which

provided that “manual patient handling . . . shall be restricted to emergency, life

threatening or otherwise exceptional circumstances,” and required annual

training on the policy. Testimony established that UW had not provided training

to the echosonographers on this policy. Kurtz testified that her injury severely

limited or eliminated her ability to do many daily activities, including dressing

herself, brushing her hair, taking a shower, and driving her car. Kurtz’s niece

also testified that Kurtz was unable or less able to do these activities in the wake

of the fracture. Kurtz further testified that she had to hire home care assistance

for help with these activities as a result of her injury. Over UW’s objection, Dr.

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Pandya testified that such chore services were reasonably necessitated by her

injury.

Toward the close of trial, UW moved for judgment as a matter of law and

argued that Kurtz had presented insufficient evidence to support her claims for

corporate negligence or economic damages. The court nonetheless instructed

the jury on corporate negligence, medical malpractice, and Kurtz’s WLAD claim.

However, the court declined to give one of Kurtz’s requested WLAD instructions

defining “reasonable accommodation.”

After the jury began deliberations, the court discovered that a juror had

searched the Internet to determine how much noneconomic damages should be.

The juror had informed the rest of the jury that noneconomic damages are

commonly three times the amount of economic damages but could be between

one and five times the amount of economic damages. Upon discovering this

misconduct, the court asked each juror under oath if they could disregard that

information going forward. Each juror agreed that they could. The court

discharged the juror who had searched the Internet, brought the alternate juror

back, and instructed the recomposed jury to “disregard all previous deliberations

and begin deliberations anew.” The court denied UW’s motion for mistrial.

The jury found that UW was negligent and awarded Kurtz $518,004.34 in

economic damages and $962,000.00 in noneconomic damages. The jury

rejected Kurtz’s other claims, including her WLAD claim.

UW appeals the denial of its mistrial motion and several of the court’s

decisions relevant to Kurtz’s corporate negligence and economic damages

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No. 80686-6-I/5

claims. Kurtz cross appeals the court’s decision to not instruct the jury about the

meaning of reasonable accommodation.

ANALYSIS

UW contends that the court erred by denying its motion for mistrial, by

permitting Kurtz to proceed with her claim for economic damages, and by

permitting Kurtz to proceed with her claim for corporate negligence. Kurtz

contends that the court erred by denying her requested jury instruction explaining

reasonable accommodation. We affirm the trial court on all counts.

Jury Misconduct and Motion for Mistrial

UW contends that the trial court erred by denying UW’s motion for a

mistrial in light of the juror misconduct. The trial court concluded that a mistrial

was not necessary because although the juror had committed misconduct, the

remaining jurors were confident that they could disregard the extrinsic evidence.

We conclude that the court did not abuse its discretion in coming to this

conclusion.

A juror commits misconduct if they introduce extrinsic evidence into jury

deliberations. Kuhn v. Schnall, 155 Wn. App. 560, 575, 228 P.3d 828 (2010).

When this happens, the court must generally “make an objective inquiry into

whether the extrinsic evidence could have affected the jury’s determination, not a

subjective inquiry into the actual effect of the evidence on the jury.” Kuhn, 155

Wn. App. at 575. If there are “reasonable grounds” to believe a party has been

prejudiced, a new trial is warranted. Kuhn, 155 Wn. App. at 575.

“Deciding whether juror misconduct occurred and whether it affected the

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No. 80686-6-I/6

verdict are matters for the discretion of the trial court, and will not be reversed on

appeal unless the court abused its discretion.” Breckenridge v. Valley Gen.

Hosp., 150 Wn.2d 197, 203, 75 P.3d 944 (2003). The trial court abuses its

discretion if its decision is manifestly unreasonable or based on untenable

grounds. State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006). We give greater

weight to a decision to grant a new trial than a decision to deny a new trial.

Breckenridge, 150 Wn.2d at 204.

In Lockwood v. AC&S, Inc., 109 Wn.2d 235, 241-42, 744 P.2d 605 (1987),

a deliberating jury was discussing damages when one juror informed the jury that

he had looked up the defendants and determined that they could “well afford to

pay.” Having discovered this before the jury rendered its verdict, the trial court

gave the jury a curative instruction not to consider the financial circumstances of

the parties and denied the defendant’s motion for a mistrial. Lockwood, 109

Wn.2d at 242. On appeal, our Supreme Court noted that “the trial court’s

curative instruction to the jury promptly and directly dealt with the juror

misconduct[,] . . . significantly reduc[ing] the probability that the misconduct

would have any prejudicial effect.” Lockwood, 109 Wn.2d at 265. The Supreme

Court took note of the trial court’s “careful examination” of the proceedings, along

with the fact that the jury damages award was substantially lower than the

amount requested, in determining that there was “little reason to doubt that the

misconduct did not affect the verdict.” Lockwood, 109 Wn.2d at 265-66. The

court therefore concluded that the trial court did not abuse its discretion by

denying the motion for mistrial. Lockwood, 109 Wn.2d at 266.

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No. 80686-6-I/7

In this case, the trial court not only instructed the jury to disregard the

extrinsic information like the court in Lockwood, it also received sworn

assurances from every juror who heard the information that they could set that

information aside in their deliberations. The court noted that it “felt that [the

jurors] were all very confident that they were and are able to disregard” the

extrinsic information. Furthermore, the court dismissed the juror who had

committed misconduct, brought in the alternate juror, and directed the jury to

begin their deliberations anew. These facts provide an even stronger basis than

in Lockwood to conclude that “the extrinsic information . . . had no prejudicial

effect.”1 Lockwood, 109 Wn.2d at 266. Therefore, the trial court did not abuse

its discretion when it denied UW’s motion for a mistrial.

UW disagrees and contends that the court was required to make an

explicit finding that UW was not prejudiced beyond a reasonable doubt. While

courts are required to grant a mistrial when there is a reasonable doubt as to

whether juror misconduct affected the verdict, the trial court is not required to

make an explicit finding to this effect. See Gardner v. Malone, 60 Wn.2d 836,

846-47, 376 P.2d 651, 379 P.2d 918 (1962) (new trial should be granted when

there is a reasonable doubt whether misconduct affected a material issue); State

v. Strine, 176 Wn.2d 742, 755, 293 P.3d 1177 (2013) (A “‘trial judge declaring a

mistrial is not required to make explicit findings . . . nor to articulate on the record

1Furthermore, while the ultimate noneconomic damages award was in the

broad range of one to five times the economic damages, it was significantly less

than three times the economic damages, the standard amount cited by the

dismissed juror.

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No. 80686-6-I/8

all the factors which informed the deliberate exercise of his discretion.’” (internal

quotation marks omitted) (quoting Renico v. Lett, 559 U.S. 766, 774-75, 130 S.

Ct. 1855, 176 L. Ed. 2d 678 (2010))). UW cites no Washington cases stating

otherwise. Here, although the court did not make an explicit finding as to

whether UW was prejudiced, the record is sufficient to review the trial court’s

decision and determine that it did not abuse its discretion. We affirm the court’s

denial of the motion for mistrial.

Claim for Economic Damages

UW alleges that the trial court erred by allowing Kurtz’s claim for economic

damages to proceed. It assigns error to several of the court’s decisions: (1) its

decision to admit Dr. Pandya’s testimony as to the necessity of Kurtz’s chore

services, (2) its denial of UW’s CR 50(a) and CR 50(b) motions for judgment as a

matter of law, and (3) its decision to instruct the jury on past and future economic

damages. We disagree.

1. Admission of Dr. Pandya’s Testimony

UW moved in limine to exclude testimony from Dr. Pandya “regarding

whether Ms. Kurtz’s post-fracture home chore services are necessary.” The

court reserved ruling “for trial pending foundation laid.” At trial, UW objected to

Kurtz’s question as to how the fracture would affect Kurtz’s day-to-day activity,

which the court overruled, and as to the necessity of the chore services, which

the court initially sustained but overruled after more foundation was laid. The

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No. 80686-6-I/9

court then denied UW’s request to voir dire Dr. Pandya.2

Where a court reserves its ruling on a motion in limine regarding the

admissibility of evidence, we review the decision that it ultimately makes at trial.

Braut v. Tarabochia, 104 Wn. App. 728, 730-31, 733, 17 P.3d 1248 (2001). We

review admission of opinion testimony for abuse of discretion. City of Seattle v.

Levesque, 12 Wn. App. 2d 687, 698, 460 P.3d 205, review denied, 195 Wn.2d

1031 (2020). “If the basis for admission of the evidence is ‘fairly debatable,’ we

will not disturb the trial court’s ruling.” Johnston-Forbes v. Matsunaga, 181

Wn.2d 346, 352, 333 P.3d 388 (2014) (internal quotation marks omitted) (quoting

Grp. Health Coop. of Puget Sound, Inc. v. Dep’t of Revenue, 106 Wn.2d 391,

398, 722 P.2d 787 (1986)).

“If 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.” ER 702. “Before allowing

an expert to render an opinion, the trial court must find that there is an adequate

foundation so that an opinion is not mere speculation, conjecture, or misleading.”

Johnston-Forbes, 181 Wn.2d at 357.

Here, the first piece of opinion testimony that UW objected to was Dr.

Pandya’s statement that an unhealed fracture like Kurtz’s would

2 UW does not provide specific argument on the court’s denial of its

request to voir dire. Accordingly, we do not address this issue. Billings v. Town

of Steilacoom, 2 Wn. App. 2d 1, 21, 408 P.3d 1123 (2017) (“Failure to provide

argument and citation to authority in support of an assignment of error precludes

appellate consideration.”).

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No. 80686-6-I/10

in general . . . affect activities of daily living for using the arm in the

way that she normally would use it in the past, whatever that may

have been. So if she was depending on that arm a lot for those

activities and now that arm is painful and not stable, that’s going to

impact her in terms of just doing normal activities.

Dr. Pandya had previously explained his expertise to opine on this issue: “As an

orthopedic surgeon, we see fractures a lot. And if an individual doesn’t have a

fracture that heals, it’s pretty consistent what we will see in terms of their function

down the road. So it’s something that I feel very comfortable [discussing].”

We conclude that the court did not abuse its discretion by admitting Dr.

Pandya’s opinion on the general impacts of such a fracture. During cross-

examination, Dr. Pandya conceded that this testimony was “offered . . . in more

of a general sense.” Dr. Pandya’s experience as a doctor dealing with fractures,

and specifically fractures that do not heal, provided ample foundation for the

court to admit this testimony.

UW next challenged Dr. Pandya’s testimony that Kurtz’s home care

services were reasonably necessitated by her arm fracture. UW objected on the

basis that Dr. Pandya was not familiar with Kurtz’s needs before the fracture and

therefore could not speak specifically to which services were required only as a

direct result of the fracture. However, Dr. Pandya stated that he had reviewed

Kurtz’s deposition to get a sense of her abilities before and after the fracture and

that “as an orthopedic surgeon who takes care of individuals [with] upper

extremity fractures, I believe that the services that Ms. Kurtz is requesting are

consistent with any individual who has a nonunited fracture of their upper

extremity.” He also explained that in Kurtz’s deposition, she “did state that there

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No. 80686-6-I/11

are things that she just can’t do [anymore] because of the fact that her arm is

broken. So I think that the services that she’s requested or receiving are

reasonable for someone who can’t undergo the activities that she can’t do now.”

While Dr. Pandya’s lack of direct knowledge as to Kurtz’s prefracture

abilities undermines the strength of his testimony, UW “ably raised these

foundational challenges for the jury’s consideration during . . . cross-

examination.” Johnston-Forbes v. Matsunaga, 177 Wn. App. 402, 412, 311 P.3d

1260, 1265 (2013), aff’d, 181 Wn.2d 346 (2014). UW’s challenge “goes to the

testimony’s weight, not its admissibility.” Johnston-Forbes, 181 Wn.2d at 357

(An “expert’s testimony ‘not based on a personal evaluation of the subject goes

to the testimony’s weight, not its admissibility.’” (quoting In re Marriage of Katare,

175 Wn.2d 23, 39, 283 P.3d 546 (2012))). The trial court’s decision to admit Dr.

Pandya’s testimony is at least “‘fairly debatable.’” Johnston-Forbes, 181 Wn.2d at

352 (internal quotation marks omitted) (quoting Grp. Health Coop., 106 Wn.2d at

398). We conclude that the court did not abuse its discretion.

2. Denial of Motions for Judgment as a Matter of Law

UW next alleges that the trial court erred by denying UW’s CR 50(a)

motion to dismiss Kurtz’s economic damages claim and its subsequent CR 50(b)

motion for judgment as a matter of law, or alternatively for a new trial. UW

contends that because Dr. Pandya had not examined Kurtz prior to her injury, his

testimony was insufficient to establish that Kurtz’s chore services were a

necessary result of her injury. We disagree.

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No. 80686-6-I/12

We review a motion for judgment as a matter of law using the same

standard as the trial court. Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948

P.2d 816 (1997). The court should grant a motion for judgment as a matter of

law when, viewed in the light most favorable to the nonmoving party, “there is no

substantial evidence or reasonable inference to sustain a verdict for the

nonmoving party.” Sing, 134 Wn.2d at 29. However, “‘[i]f there is any justifiable

evidence upon which reasonable minds might reach conclusions that sustain the

verdict, the question is for the jury.’” Douglas v. Freeman, 117 Wn.2d 242, 247,

814 P.2d 1160 (1991) (internal quotation marks omitted) (quoting Lockwood, 109

Wn.2d at 243).

A plaintiff is entitled to damages that are “the direct, natural, and

proximate consequences of the wrongful act . . . and such as are established

with reasonable certainty.” Dyal v. Fire Cos. Adjustment Bureau, 23 Wn.2d 515,

521, 161 P.2d 321 (1945). “Prior to an allowance for the cost of future medical

care, evidence must indicate the care will be necessitated by the plaintiff’s injury.

Once liability for damages is established, a more liberal rule is applied when

allowing assessment of the damage amount.” Erdman v. Lower Yakima Valley,

Wash. Lodge No. 2112 of B.P.O.E., 41 Wn. App. 197, 208, 704 P.2d 150 (1985)

(citations omitted). While the necessity of medical expenses are often

established through expert testimony, Lakes v. von der Mehden, 117 Wn. App.

212, 219, 70 P.3d 154 (2003), evidence of suffering can also “tend[ ] to show the

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No. 80686-6-I/13

necessity for the services.”3 Howells v. N. Am. Transp. & Trading Co., 24 Wash.

689, 694, 64 P. 786 (1901).

In Maurer v. Grange Insurance Ass’n, 18 Wn. App. 197, 202-03, 567 P.2d

253 (1977), the trial court concluded that evidence of damages was properly

considered by the jury where the plaintiff’s doctor testified that the accident

caused pain and other symptoms that required medical care, and the plaintiff

testified that “the bills were for medical care and directly related to the injuries

from the accident.” We noted that the plaintiff was not required to prove the

causal connection as a matter of law but needed only to “produce sufficient

evidence of causal connection to go beyond speculation and conjecture,” and

concluded that the plaintiff had done so. Maurer, 18 Wn. App. at 203.

Here, viewing the evidence in the light most favorable to Kurtz, sufficient

evidence supports the claim for economic damages. UW challenges the

necessity of Kurtz’s home chore services, claiming that Kurtz failed to provide

sufficient evidence that her fracture necessitated these services. In denying

UW’s first motion, the court concluded that there was substantial evidence

supporting the necessity of these services, in light of both Dr. Pandya’s expert

opinion and the lay testimony concerning Kurtz’s abilities. The court discussed

the “lay testimony of Ms. Kurtz and her niece Amanda, who very clearly indicated

that there were deficits post injury that did not occur pre injury with regards to her

3Kurtz contends that her home chore services were not medical expenses

and therefore the standard for medical expenses need not apply. While it

appears that medical testimony was useful to determine the necessity of these

expenses, we need not address this issue because there is sufficient evidence

even under the standard for medical damages.

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No. 80686-6-I/14

ability.” It noted that this was complemented by the testimony of Dr. Pandya,

who, although he “had no knowledge of Ms. Kurtz prior to the injury,” was able to

give his expert opinion “that her injury[,] . . . as an unhealed fracture, was

consistent with any individual who has a nonunited fracture of an upper extremity

and . . . how that would affect anybody and decrease one’s function.” We agree

that, in light of the complementary lay and expert testimony, Kurtz established

sufficient evidence to allow the jury to consider the necessity of economic

damages “beyond speculation and conjecture.” Maurer, 18 Wn. App. at 203.

3. Instruction on Economic Damages

UW next challenges the court’s decision to instruct the jury on economic

damages. “A defendant is entitled to have the jury instructed on her theory of the

case when there is evidence to support the theory.” State v. Jarvis, 160 Wn.

App. 111, 120, 246 P.3d 1280 (2011). “When determining whether the evidence

was sufficient to support giving an instruction, we view the evidence in the light

most favorable to the party requesting the instruction.” Jarvis, 160 Wn. App. at

120. Because we have already concluded that there was sufficient evidence

supporting the necessity of Kurtz’s chore services to allow her claim to proceed,

we also conclude that the court did not err by instructing the jury on these

damages.

Corporate Negligence Claim

Finally, UW alleges that the court erred by allowing Kurtz’s corporate

negligence claim to proceed, again challenging the court’s evidentiary decisions,

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No. 80686-6-I/15

instructions to the jury, and ruling on UW’s motion for judgment as a matter of

law, as well as its pretrial summary judgment order. We disagree.

1. Admission of Dr. Pandya’s Testimony

UW challenges the court’s admission of additional portions of Dr.

Pandya’s testimony, alleging that there was not sufficient foundation to support it.

We apply the same standard as in the evidentiary discussion above, and we

disagree.

First, UW objected to Dr. Pandya’s testimony regarding the importance of

a hospital having the right equipment available for patients with disabilities: “It’s

extremely important, in order to provide the best care for a patient, to have the

equipment that you need to actually do what you need to do. So it’s one of the

most critical parts of what we do as a physician.” This statement was supported

by several of Dr. Pandya’s previous statements that were not objected to by UW.

Specifically, Dr. Pandya had testified that he had worked at 10 or 11 hospitals,

that a large portion of his practice dealt with patients with disabilities, that

hospitals make patient safety important to clinicians daily, and that patient safety

was “part of our minute-by-minute existence in the hospital.”4 Given Dr.

4 UW seems to contend that it made a standing objection to all of Dr.

Pandya’s testimony on this issue through its motion for summary judgment.

When a motion in limine to suppress evidence is denied, the moving party has a

standing objection to that evidence which can be raised on appeal. Garcia v.

Providence Med. Ctr, 60 Wn. App. 635, 641, 806 P.2d 766 (1991). Here, UW

made no motion in limine regarding Dr. Pandya’s testimony. Contrary to UW’s

claim that “the trial court’s denial of summary judgment was necessarily premised

on a determination” that Dr. Pandya’s testimony was admissible, the court ruled

only that there were questions of fact about the corporate negligence claim that

justified proceeding to trial. Because the trial court had not expressly ruled that

Dr. Pandya’s testimony was admissible, we conclude that UW preserved its right

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No. 80686-6-I/16

Pandya’s foundational testimony regarding his experience in hospitals, his

testimony on the importance of a hospital having the right equipment for safe

patient handling is not “mere speculation, conjecture, or misleading,” and the

court did not abuse its discretion by admitting it. Johnston-Forbes, 181 Wn.2d at

357.

Next, UW assigns error to Dr. Pandya’s testimony that it is “absolutely

critical” that hospitals train their staff on their safe patient handling policies. Dr.

Pandya’s prior statements also establish the foundation for this testimony. In

addition to his earlier testimony regarding his experience working in hospitals and

the importance of patient safety, Dr. Pandya also testified that it is important for

hospitals to have safe patient handling policies “so that care can be

standardized.” UW did not object to this foundational testimony. Again, the court

did not abuse its discretion by admitting Pandya’s testimony that training on safe

patient handling was important because it was not “mere speculation, conjecture,

or misleading.” Johnston-Forbes, 181 Wn.2d at 357.

2. Instruction on Corporate Negligence

UW next claims that the court erred by instructing the jury on corporate

negligence.5 Specifically, it alleges that Kurtz failed to establish the hospital’s

to appeal only the admission of those portions of Dr. Pandya’s testimony that it

objected to at trial.

5 UW also challenges the court’s denial of its summary judgment motion

and for judgment as a matter of law. These orders are not properly before us.

First, UW cannot appeal the summary judgment order. “When a trial court

denies summary judgment due to factual disputes and a trial is subsequently

held on the issue, the losing party must appeal from the sufficiency of the

evidence presented at trial.” Caulfield v. Kitsap County, 108 Wn. App. 242, 249

n.1, 29 P.3d 738 (2001); see also DGHI, Enters. v. Pac. Cities, Inc., 137 Wn.2d

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No. 80686-6-I/17

standard of care. We again review the record in the light most favorable to Kurtz,

and we conclude that the instruction was supported by sufficient evidence.

In a corporate negligence claim, the hospital’s standard of care “is based

on proof of the customary and usual practices” among hospitals. Douglas, 117

Wn.2d at 248. This standard of care may be defined by the Joint Commission on

Accreditation of Hospitals’ accreditation standards, the hospital’s bylaws, or

statute. Douglas, 117 Wn.2d at 248-49. “Usually, the standard of care must be

established by expert testimony.” Douglas, 117 Wn.2d at 249.

Here, Dr. Pandya testified that the safe patient handling standard of care

was a national standard, that safe patient handling policies “help to establish a

standard of care,” and that UW’s failure to provide a lower table or safe transfer

method for Kurtz, along with UW’s failure to train its employees in safe patient

handling techniques, constituted negligence and caused Kurtz’s injury. UW did

not challenge this testimony. UW objects that Dr. Pandya was not a hospital

933, 949, 977 P.2d 1231 (1999) (“‘The issue can be reviewed after trial in an

appeal from final judgment.’” (quoting Rodin v. O’Beirn, 3 Wn. App. 327, 332, 474

P.2d 903 (1970))).

Second, the CR 50(b) order is not before us because UW did not file a

CR 50(a) motion on the issue of corporate negligence. “[A] party must file a

motion for a judgment as a matter of law before submitting the case to the jury if

the party wishes to renew its previous motion after the jury returns a verdict.”

Millies v. LandAmerica Transnation, 185 Wn.2d 302, 314-15, 372 P.3d 111

(2016); CR 50. The sole case UW cites on this issue does not state otherwise.

Kaplan v. Nw. Mut. Life Ins. Co., 115 Wn. App. 791, 804 & n.6, 65 P.3d 16 (2003)

(holding that court could review preverdict summary judgment denial order

because it presented an issue of law and that appellant was not required to make

any CR 50 motions to preserve the issue for appeal).

Despite these procedural issues, we still address the ultimate question

presented by UW—whether Kurtz provided sufficient evidence to support her

corporate negligence claim—by addressing the jury instructions on corporate

negligence.

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administrator and did not have knowledge of hospital administration, but we are

not persuaded that administrative experience specifically is necessary to speak

to the “customary and usual practices” of hospitals. Douglas, 117 Wn.2d at 248.

Combined with the testimony discussed above and the UW Safe Patient

Handling policy requiring annual training and discouraging manual lifts, there is

sufficient evidence, viewed in the light most favorable to Kurtz, to establish UW’s

standard of care. Therefore, the court did not err by presenting Kurtz’s corporate

negligence claim for consideration by the jury.

Rejected Instruction on Reasonable Accommodation

On cross appeal, Kurtz claims that the trial court erred by declining to give

a proposed instruction explaining the term “reasonable accommodation” under

the WLAD. We disagree.6

We review jury instructions de novo for errors of law and consider

instructions to be sufficient if they allow counsel to argue their theory of the case,

are not misleading, and as a whole properly instruct the trier of fact on the

applicable law. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851,

860, 281 P.3d 289 (2012). Instructions that fail to meet these criteria require

reversal if the instructions prejudice a party. Anfinson, 174 Wn.2d at 860. By

contrast, a court’s “refusal to send a proposed instruction to the jury is a

discretionary decision reviewed for abuse of discretion.” In re Det. of Pouncy,

6 We reject UW’s allegation that Kurtz waived this issue because she later

amended the instruction but ostensibly challenges the court’s refusal to give her

original proposed instruction. Kurtz properly challenged the refusal to give the

amended instruction, and it is the amended instruction that we review on appeal.

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168 Wn.2d 382, 390, 229 P.3d 678 (2010). Trial courts do not need to define

terms in instructions that are self-explanatory or commonly understood, but they

must define technical words and expressions. Pouncy, 168 Wn.2d at 390.

“Whether a word is technical in nature is a question within the discretion of the

trial court.” Pouncy, 168 Wn.2d at 390. Furthermore, “[t]he trial court need never

give a requested instruction that is erroneous in any respect.” Vogel v. Alaska

S.S. Co., 69 Wn.2d 497, 503, 419 P.2d 141 (1966).

Here, the trial court did not abuse its discretion by failing to give Kurtz’s

proposed instruction because the instruction contained an error. The proposed

instruction mostly quoted a regulation interpreting reasonable accommodation

under WAC 162-26-080. However, it also included a statement that “[t]he duty to

reasonably accommodate is an affirmative duty that arises as soon as the

University of Washington or its agents or employees becomes aware of a

person’s disability.”7 This statement is a misstatement of the law because the

duty to reasonably accommodate arises only if “same service would prevent the

person from fully enjoying the place of public accommodation,” regardless of

when the entity becomes aware of the disability. WAC 162-26-080(1). Because

Kurtz’s proposed instruction misstated the law, the court was not required to give

it. Vogel, 69 Wn.2d at 503.

7In support of this statement, Kurtz cites Goodman v. Boeing Co., 127

Wn.2d 401, 408, 899 P.2d 1265 (1995), an employment discrimination case, and

6A Washington Practice: Washington Pattern Jury Instructions: Civil 330.34 (7th

ed. 2019), discussing employment discrimination.

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Kurtz disagrees and contends that we should review the court’s failure to

define “reasonable accommodation” even if her instruction partially misstated the

law. To support her contention, she cites Hopkins v. Seattle Public School

District No. 1, 195 Wn. App. 96, 380 P.3d 584 (2016), and Quynn v. Bellevue

School District, 195 Wn. App. 627, 383 P.3d 1053 (2016). In Hopkins, the

appellant objected to the court’s failure to give his proposed instruction defining a

school district’s duty to protect a student from harm. 195 Wn. App. at 105.

However, he also objected generally to the court’s refusal to give any jury

instruction on this duty. Hopkins, 195 Wn. App. at 105. We held that although

the appellant’s proposed instructions “contained more language than was

appropriate,” because he also objected to the court’s failure to give an instruction

on a school district’s duty, we could properly review the instructions as given to

determine whether they were erroneous. Hopkins, 195 Wn. App. at 105.

The same issue was raised in Quynn, where the appellants’ proposed

instruction on the school district’s duty contained more language than was

appropriate. 195 Wn. App. at 643. However, because they objected not only to

the court’s refusal to give their requested instruction, but also to the erroneous

instructions ultimately given by the court, we held that we could appropriately

review the court’s jury instructions. Quynn, 195 Wn. App. at 643.

This case is distinguishable from both Hopkins and Quynn because in

those cases, the appellants’ objections put the court on notice that its final jury

instructions misstated the law. Here, there is no contention that the court’s

instructions, as given, misstated the law. Therefore, we conform to the usual rule

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that the “trial court need never give a requested instruction that is erroneous in

any respect.” Vogel, 69 Wn.2d at 503. The trial court did not abuse its discretion

by declining to give the proposed instruction.

Finally, Kurtz claims that she should be awarded attorney fees under

RCW 49.60.030(2), which provides attorney fees to a person who substantially

prevails on their WLAD appeal. See Carle v. McChord Credit Union, 65 Wn.

App. 93, 111, 827 P.2d 1070 (1992) (applying RCW 49.60.030 to attorney fees

on appeal). Because Kurtz does not prevail on her WLAD claim, she is not

entitled to attorney fees.

We affirm.

WE CONCUR:

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