Ean Oz Sager v. Sarah Mena ( 2018 )


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  •                                                                      F I LED
    1:,01,JE),T OF 11..i)",e,L5 DIV 1
    E OF WAWU I Ch
    10113 NOV -5 AM 10: 514
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    EAN OZ SAGER,                     )
    )              DIVISION ONE
    Appellant,     )
    )              No. 76879-4-1
    v.                 )
    )              UNPUBLISHED OPINION
    SARA MENA,                        )
    )
    Defendant,     )
    )
    KISIRA N. HILL, and EDDIE B. HILL )
    and JOANN HILL, Husband and Wife, )
    )
    Respondents.   )              FILED: November 5, 2018
    )
    DWYER, J. — Following two separate automobile collisions, Ean Oz Sager
    brought suit against two of the other drivers, Sara Mena and Kisira Hill, and was
    awarded damages by a jury. Sager asserts that the trial court erred by excluding
    photographic evidence of damage sustained to Hill's car. Sager contends that
    the exclusion of the photographic evidence was an abuse of the trial court's
    discretion and allowed Hill to mislead the jury, resulting in an unfair assignment
    of damages as between the defendants. Finding no abuse of the trial court's
    discretion, we affirm.
    1
    Sager was injured in two automobile collisions in the span of two days.
    On September 27, 2012, Sager's vehicle was hit from behind by a vehicle driven
    by defendant Kisira Hill while Sager's vehicle was stopped at a pedestrian
    No. 76879-4/2
    crossing (Collision #1).1 On September 29, Sager was involved in a more
    serious collision (Collision #2). In the second incident, his vehicle was struck
    from the side by a vehicle driven by defendant Sara Mena, pushing his vehicle
    into oncoming traffic where it was hit head-on by another vehicle coming from the
    opposite direction. In 2015, he sued Hill and Mena.
    The defendants in each collision admitted their negligence and that Sager
    had been injured in the collisions. The jury's task was to decide the nature and
    extent of Sager's injuries, whether he failed to mitigate his damages, if damages
    could be apportioned between the two collisions, and, if so, to actually apportion
    responsibility for damages between the defendants.
    In preparation for the argument of pretrial motions, Sager had numerous
    exhibits marked for identification, including plaintiff's proposed Exhibits 6-20,
    which were photographs of the damage sustained to the various vehicles
    involved in the collisions. Plaintiffs proposed Exhibits 12-15 were photographs
    of Hill's vehicle that showed damage to Hill's vehicle's hood, grille, and a
    headlight.
    During argument on the motions in limine, both defendants objected to the
    introduction of the photographs. The trial court acknowledged the relevance of
    the photographs, but ruled against admitting any of them, reasoning that no party
    planned to offer biomechanical expert witness testimony that would explain to the
    jury how the damage to the vehicles showed the force of the impact of the
    I Sager sued Kisira Hill as well as the owners of the vehicle Kisira was driving, Eddie B.
    Hill and Joann Hill. For convenience, unless the context indicates otherwise, "Hill" refers to Kisira
    Hill.
    - 2-
    No. 76879-4/3
    various collisions on Sager. The court explained that admitting the photographs
    into evidence could lead the jury to engage in speculation about the
    biomechanics of the collisions. Thus, the court ruled, the photographs' potential
    to mislead the jury and prejudice the defendants rendered them more prejudicial
    than probative under ER 403.
    The parties then agreed not to elicit testimony about damage to the
    vehicles. However, the trial court did allow Sager to utilize diagrams of each
    collision, created by the investigating officers, to help demonstrate how each
    collision occurred.
    At trial, Hill was allowed to testify out of order and in the middle of Sager's
    direct examination testimony. When asked to describe the collision in which she
    had been involved, Hill stated, "I was distracted and when I looked up, the traffic
    had stopped in front of me. I stepped on my brakes. Unable to stop in time, I
    made contact with Mr. Sager's vehicle." In response to a question about whether
    she spoke with Sager, Hill replied, "I did. After making contact with his car, we
    pulled to the side." This choice of words did not promote an objection from
    Sager, and Sager did not attempt to introduce the photographs at this time.
    Sager did not opt to cross-examine Hill as to her choice of words.
    After counsel finished with Hill's direct and cross-examinations, but before
    Hill was excused from the stand, three jurors submitted written questions
    regarding the speed of her vehicle at the time of impact. In the resulting sidebar
    conference concerning whether to ask Hill the jurors' questions regarding her
    vehicle's speed, Sager's attorney argued that Hill's testimony had made an issue
    3
    No. 76879-4/4
    of the force of impact on the parties' vehicles, and that her answers to the jurors'
    questions would open the door to the use of the vehicle damage photographs.
    All defendants objected to asking Hill the questions posed by the jurors. The trial
    court ruled that the likely prejudice from asking the questions outweighed their
    probative value and declined to pose the jurors' questions to Hill. Given that the
    questions were not asked, the trial court did not reach the issue of admitting the
    photographs at this time.
    After Hill was excused, Sager's counsel continued with Sager's direct
    examination. In this examination, counsel directly addressed Hill's testimony and
    Sager provided a contrasting description of Collision #1. Sager testified that, as
    a result of the impact, his "head hit the back of the headrest" and he "hit his chin."
    When asked expressly how he would describe the impact in comparison to Hill's
    "made contact" testimony, Sager testified, "it was pretty significant contact, but
    not—not as bad as the second one."
    At the conclusion of Sager's testimony, a juror proposed a question
    concerning the damage caused to Sager's vehicle in Collision #2. During the
    resulting sidebar conference, Sager's attorney acknowledged the trial court's
    initial bases for excluding the photographs—that, because there was no denial
    that both collisions caused injuries, damages from each collision could be
    determined by medical evidence. However, counsel argued that, given Hill's
    "made contact" testimony and defense counsels' cross-examination of Sager,
    both of which tended to minimize the impact of the first collision, Sager should be
    allowed to introduce the photographs of the damage to Hill's vehicle and answer
    4
    No. 76879-4/5
    the juror's question about the damage sustained by his own vehicle in both
    collisions.
    The trial court initially ruled that Sager could answer the juror's question
    about damage to Sager's vehicle and testify as to the condition of his vehicle
    after each collision, reasoning that the door had been opened, but did not allow
    the admission of any of the photographs. To this Mena's counsel objected,
    arguing that the question called for information relating to property damage that
    was not at issue and that the door to questions about the damage sustained by
    the various vehicles had not been opened—as Sager was essentially arguing
    that testimony on the first collision had opened the door to a question about
    vehicle damage in the second collision. Mena's attorney also argued that the
    information sought by the juror's question would confuse the jury as to whether it
    was to consider insurance or property damage.
    The trial court then revisited its ruling, declining to allow Sager to answer
    the juror's question regarding damage to Sager's vehicle, while maintaining its
    decision not to allow the admission of the photographs. In addition to the
    reasons given in the pretrial hearing for excluding the photographs, the judge
    now agreed with Mena's attorney that the possibility of juror confusion over
    whether insurance or property damage was at issue also rendered the proffered
    evidence more prejudicial than probative.
    In Hill's closing argument, Hill's counsel emphasized the comparative
    mildness of Collision #1 as opposed to Collision #2.
    5
    No. 76879-4/6
    Ultimately, the jury found that Sager had proved total damages of
    $59,001.00. The jury then allocated $1,400.00 of damages to Hill from Collision
    #1 and $57,601.00 of damages to Mena from Collision #2. The jury also found
    that Sager failed to mitigate his damages in the amount of $6,250.00. Judgment
    was entered on the verdict. The defendants were not assigned joint and several
    liability.
    Sager timely appealed.2 After filing his notice of appeal, Sager settled his
    case against defendant Mena. She is not a party to this appeal.
    II
    This appeal concerns the decision of the trial court to exclude photographs
    of damage to Hill's vehicle. Sager asserts that the exclusion of the photographic
    evidence of the damage to Hill's vehicle resulted in the jury assigning to Hill too
    few of the proved damages. Specifically, Sager argues that, in the absence of
    photographic evidence of damage to Hill's vehicle, he was unable to demonstrate
    the force of the collision to the jury. Thus, he asserts, Hill was allowed to
    misrepresent the nature of Collision #1.3
    Sager first assigns error to the trial court's pretrial decision to exclude the
    photographs of Hill's vehicle. Next, he contends that the trial court erred by
    2 Sager's argument on   appeal is concentrated on the disparity between the amount of
    damages assigned to Hill, as opposed to those assigned to Mena. Prejudice was manifested,
    Sager argues,"[b]ecause of the disproportionate verdict." Reply Br. of Appellant at 3. Sager
    does not assign error to the trial court's instructions, nor does Sager invest any argument or
    citations to the record that would support the view that the "total damages" amount found by the
    jury was inadequate to fully compensate Sager. In the end, however, given that we find no error,
    this matters not.
    3 Sager does not assign error to the trial court's decision not to ask the jurors' questions
    regarding the speed of Hill's vehicle at the time of the collision.
    6
    No. 76879-4/7
    continuing to exclude the photographs after Hill's testimony, notwithstanding the
    minimizing language Hill used to describe the impact and the questions posed by
    jurors that indicated a concern with the force of impact of the vehicles involved in
    Collision #1. Finally, he avers that the trial court erred by declining to admit
    these photographs at the conclusion of Sager's testimony for the purpose of
    impeachment by contradiction, especially in light of an additional juror question
    regarding vehicle damage. We hold that the trial court did not err in any of these
    instances.
    To be admissible, evidence must be relevant. ER 402. Evidence is
    relevant when it has any tendency to make the existence of any consequential
    fact more probable or less probable than it would be without the evidence. ER
    401. Facts that tend to establish a party's theory or disprove or rebut an
    opponent's theory or evidence are relevant. Fenimore v. Donald M. Drake
    Constr. Co., 
    87 Wash. 2d 85
    , 89, 549 P.2d 483(1976). However, even when
    relevant, evidence may nevertheless be excluded if its probative value is
    substantially outweighed by the likelihood that it will mislead the jury or promote a
    confusion of the issues. ER 403.
    The trial court has wide discretion in determining whether evidence will
    mislead the jury. State v. Luvene, 
    127 Wash. 2d 690
    , 707, 903 P.2d 960(1995).
    Evidence that could lead the jury to engage in improper speculation is properly
    characterized as evidence that may mislead the jury for purposes of applying ER
    403. The decision to admit or exclude evidence is within the sound discretion of
    7
    No. 76879-4/8
    the trial court; we will not reverse such a decision absent a manifest abuse of that
    discretion. State v. Iverson, 
    126 Wash. App. 329
    , 336, 108 P.3d 799(2005).
    A trial court abuses its discretion when its decision is manifestly
    unreasonable or based on untenable grounds or untenable reasons. In re
    Marriage of Littlefield, 
    133 Wash. 2d 39
    , 46-47, 940 P.2d 1362(1997)(citing In re
    Marriage of Kovacs, 
    121 Wash. 2d 795
    , 801, 854 P.2d 629(1993); In re Marriage of
    Wicklund, 
    84 Wash. App. 763
    , 770 n.1, 932 P.2d 652(1996)). A court's decision is
    manifestly unreasonable if it adopts a view that no reasonable person would
    take, given the facts and applicable legal standard; it is based on untenable
    grounds or reasons if the court applies the wrong standard or relies on
    unsupported facts. Salas v. Hi-Tech Erectors, 
    168 Wash. 2d 664
    , 669, 230 P.3d
    583(2010).
    Sager rightfully cites to cases indicating that photographs of damage to
    vehicles may be admitted to show the forces of impact on a person involved in a
    collision, even when liability is not at issue and biomechanical expert testimony is
    not available. See, e.g., Murray v. Mossman, 
    52 Wash. 2d 885
    , 888, 
    329 P.2d 1089
    (1958); Kramer v. Portland-Seattle Auto Freight, Inc., 
    43 Wash. 2d 386
    , 389, 261
    P.2d 692(1953); Taylor v. Spokane, Portland & Seattle Rv. Co., 
    72 Wash. 378
    ,
    379-80, 
    130 P. 506
    (1913). Indeed, the trial court herein never disputed the
    relevance of the photographs; rather, it exercised its discretion to determine that
    the photographs' probative value was outweighed by the danger of prejudice.
    8
    No. 76879-4/9
    The trial court first subjected the photographs in question to ER 403's
    balancing test while resolving the pretrial motions. The court did not question the
    relevance of the photographs but, rather, determined that, under ER 403, their
    probative value was outweighed by the potential for prejudicial juror confusion or
    speculation. The court reasoned that, in the absence of biomechanical expert
    testimony, admission of the photographs could invite speculation from the jury as
    to how damage to the vehicles shown in the photographs were manifested in the
    injuries sustained to Sager's person.
    Sager argues that courts, as a general rule, allow photographic evidence
    of vehicle damage because such photographs are relevant to determining
    personal injury to a plaintiff inside a vehicle, even in the absence of expert
    testimony. While many trial judges might have adopted Sager's view on the
    matter, that is not dispositive. A trial court's evidentiary ruling constitutes an
    abuse of discretion only when the ruling is one that no reasonable judge would
    make. 
    Sales, 168 Wash. 2d at 669
    . We cannot say that no reasonable judge would
    rule as the trial judge herein ruled. Nor can we say that all reasonable judges
    would have ruled in accordance with Sager's desired ruling. Thus, no abuse of
    discretion has been demonstrated. 
    Sales, 168 Wash. 2d at 669
    . There was no
    error.
    Sager next claims that the trial court erred by not admitting the
    photographs of damage to Hill's vehicle mid-trial, after Hill's testimony and the
    9
    No. 76879-4/10
    various juror questions. Sager argues that Hill's testimony, which minimized the
    force of impact with which her car collided with Sager's, opened the door to
    questions of vehicle speed and to the admission of photographic evidence of this
    force.
    Once again, the trial court was required, pursuant to ER 403, to make a
    determination as to whether admitting the photographs would invite unfair
    prejudice. Moreover, the judge was plainly aware that Hill's testimony preceded
    the conclusion of Sager's direct examination, allowing Sager the opportunity to
    rebut Hill's statements through his own testimony. Indeed, Sager's attorney
    questioned him regarding Hill's characterization of the collision, which afforded
    Sager the opportunity to offer a contrasting description of the forces at work in
    the collision.
    Sager argues that the photographs of Hill's vehicle would have conveyed
    the force of the impact in a way that Sager was not able to do in words. This
    speaks to the relevance of the photographs. But, again, the trial court never
    ruled that the photographs were irrelevant. Instead, at this point of the trial also,
    the trial judge relied on ER 403 in maintaining their exclusion. The judge
    explained the court's reasons on the record. This was an exercise of the court's
    discretion. To constitute an abuse of this discretion, the trial court's decision
    would have had to adopt a view that no reasonable person would take. 
    Salas, 168 Wash. 2d at 669
    . We cannot say that the trial court's decision, pursuant to the
    applicable facts and the ER 403 standard, meets this threshold. Thus, no abuse
    of discretion is shown. There was no error.
    -10-
    No. 76879-4/11
    Finally, Sager assigns error to the trial court's continued exclusion of the
    photographs after they were offered to impeach Hill by contradiction.
    Impeachment by contradiction is not to be confused with impeachment of a
    witness by a prior inconsistent statement under ER 613. Rather, it is recognized
    by our courts as a means to introduce rebuttal evidence contradicting a witness's
    substantive testimony on a fact issue. Jacqueline's Wash., Inc. v. Mercantile
    Stores Co., 
    80 Wash. 2d 784
    , 788-89, 498 P.2d 870(1972). This evidence must be
    independently competent and admissible for a purpose other than attacking the
    witness's credibility. Jacqueline's 
    Wash., 80 Wash. 2d at 789
    . Admissibility of the
    evidence is, however, still contingent on a trial court's evaluation of its probative
    and prejudicial characteristics under ER 403. This evaluation, in turn, will not be
    overturned on appeal absent a manifest abuse of discretion.
    Sager requested to introduce the photographs of Hill's vehicle after his
    testimony in a sidebar conference concerning whether to allow Sager to answer
    a juror's question concerning damage to Sager's vehicle after Collision #2. The
    court stated that, in addition to the concerns with the photographs that it identified
    at the pretrial conference, admitting them could invite jury speculation as to
    whether property damage or insurance claims were at issue. The concern that
    allowing both photographs of and descriptions of vehicle damage would lead to
    juror confusion as to whether the jury was to consider property damages was, as
    with the potential for speculation in the absence of biomechanical expert
    testimony, a tenable reason for continuing to exclude the proffered evidence.
    No. 76879-4/12
    The court's reasoning was not based on an incorrect legal standard. 
    Littlefield, 133 Wash. 2d at 47
    .
    Sager had moved to admit the photographs of Hill's vehicle in response to
    a juror question about the condition of Sager's vehicle after the second collision.
    These photographs, in turn, showed only indirectly the forces that would have
    acted on the plaintiff in the first collision. The relationship between the specific
    juror question and the proffered photographs was attenuated at best. It was not
    unreasonable for the trial judge to express concern about "open[ing] that
    Pandora's box" of collateral issues, including insurance and property damage, by
    admitting evidence of vehicle damage. Again, we cannot say that no reasonable
    judge would arrive at this conclusion. 
    Salas, 168 Wash. 2d at 669
    . Thus, no abuse
    of discretion is shown. There was no error.
    Affirmed.
    We concur:
    - 12 -