Melissa Kurtz, Res/cross-app. V. State Of Wa D/b/a Uw And Uw Medical Center, App/cross-res. ( 2021 )

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v. UNPUBLISHED OPINION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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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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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
16No. 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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No. 80686-6-I/18
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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