Rebecca West, V. Ride The Ducks International, Llc ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
REBECCA WEST, an individual,
No. 80257-7-I
Respondent, (Consolidated
with No. 80258-5-I)
and
DIVISION ONE
TAMI MATSON, an individual; TIFFANY
HAMAN, an individual, UNPUBLISHED OPINION
Plaintiffs,
v.
RIDE THE DUCKS INTERNATIONAL,
LLC, a foreign company; RIDE THE
DUCKS OF SEATTLE, LLC, a
Washington company;
Appellants,
and
ERIC BISHOP and JANE DOE
BISHOP, and their marital community,
Defendants.
COBURN, J. — Rebecca West was sightseeing aboard an amphibious
“Stretch Duck” vehicle (Duck 6) on September 24, 2015, when it was involved in
a catastrophic collision with a charter bus on the Aurora Bridge in Seattle. The
collision occurred when Duck 6’s front axle housing fractured at the connection
point between the steering knuckle ball and the axle housing, causing the driver’s
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80257-7-I/2
side front wheel to come off. Duck 6 was owned and operated by Ride the
Ducks of Seattle (RTDS), which had purchased it from the manufacturer, Ride
the Ducks International (RTDI), in 2005.
About two years before the collision, in October 2013, RTDI issued a
service bulletin to its franchisees and licensees, including RTDS, directing them
to implement a “collar modification” to strengthen the axle housing on Stretch
Ducks. RTDS did not implement the collar modification. By the time RTDI
issued the service bulletin, it had observed five axle housing fractures on Stretch
Ducks over a period of approximately 10 years.
West later sued RTDI and RTDS. Against RTDI, West alleged claims
under Washington’s Products Liability Act (WPLA), chapter 7.72 RCW. Against
RTDS, West alleged negligence. A jury found both defendants liable and
apportioned 60 percent fault to RTDI and 40 percent fault to RTDS.
On appeal, RTDI contends the trial court erred by (1) denying RTDI’s
motion for judgment as a matter of law on three of West’s WPLA-based theories;
(2) not giving a superseding cause instruction; and (3) not adding RTDI’s
proposed clarification to the jury instruction on West’s post-sale failure-to-warn
claim. RTDS contends the trial court erred by (1) denying RTDS’s motion for
judgment as a matter of law; (2) admitting evidence that RTDS breached its
common carrier duty of care by not implementing the collar modification;
(3) admitting evidence of staffing and disorganization issues in RTDS’s
maintenance department; and (4) admitting West’s testimony about why she was
wearing a boot on her foot during trial.
2
No. 80257-7-I/3
We hold that because the medical cause of the problem with West’s foot
was a matter requiring specialized knowledge, and because West was not
qualified to testify as to that matter, the trial court erred by admitting West’s
testimony about why she was wearing a boot. But this error does not require
reversal, and we otherwise discern no error. Accordingly, we affirm.
BACKGROUND
Facts
Amphibious “DUKW” vehicles were originally designed and built by GMC
for use by the U.S. military to move cargo from ship to shore during World War II.
After the war, a company called Ozark Scenic Tours in Branson, Missouri, began
using parts from surplus DUKW vehicles to build tour vehicles, which it then used
to operate tours in Branson. RTDI’s parent company later purchased and
renamed Ozark Scenic Tours, and consistent with the parties’ briefing, we refer
to the company hereinafter as “RTDI” regardless of the time frame. RTDI had
tour franchises in Branson; Philadelphia; Newport, Kentucky; Stone Mountain,
Georgia; San Francisco; and Guam. Additionally, it had licensees in Boston and
Seattle. Unlike franchisees, RTDI’s licensees were independent companies that
owned the vehicles they purchased from RTDI, and in exchange for a percentage
of sales, obtained the right to use certain RTDI intellectual property and
resources. RTDS was the licensee in Seattle.
RTDI produced and sold four distinct editions of tour vehicles. Duck 6 was
a second-generation “Stretch Duck.” To build a Stretch Duck, RTDI would
refurbish an original DUKW chassis and “stretch” it by cutting it and adding 15
3
No. 80257-7-I/4
inches of frame. RTDI would then mount a hull fabricated from new steel onto
the chassis.
The axle assemblies that RTDI used for the Stretch Ducks were
refurbished 1945-era axle assemblies from GMC’s postwar military truck, the
M135/M211. RTDI would obtain the M135/M211 axle assemblies from surplus
auctions or other secondhand sources and remanufacture them. An axle
assembly includes the axle housing, which is a protective steel shell that encases
the axle and to which the suspension is attached.
Each wheel end of the axle assembly is covered with a watertight “boot”
designed to keep water out of the axle assembly. The boot covers the
connection point at each end of the axle assembly between the axle housing and
the steering knuckle ball.
RTDI began building Stretch Ducks in 1996 and produced a total of 57.
Chris Herschend, RTDI’s president, later testified that he was aware of no
evidence indicating that RTDI ever conducted any engineering or metallurgical
analysis in connection with its production of Stretch Ducks.
On July 8, 2003, a driver in Branson observed that the right front axle
housing on a Stretch Duck had broken at the knuckle ball. RTDI did not conduct
any causation analysis but attributed the fracture to a 1998 incident in which that
Stretch Duck’s hand brake was not properly set, and the Stretch Duck ran over a
retaining wall. No injuries were associated with the July 2003 fracture.
In the 2003-2004 time frame, RTDI observed that the left front wheels on
two of its parked Stretch Ducks were canted inward (i.e., toward the engine) at
4
No. 80257-7-I/5
the top. According to a later summary of the incident, “[u]pon further inspections
and examinations, it was determined that the axle housings were fractured along
the bottom of the housing between the knuckle ball and where the axle ends
were pressed into and welded to the housings.” In 2004, RTDI began welding a
small section of pipe to the bottom of the knuckle ball to bridge the gap between
the knuckle ball and the axle housing. This process is referred to throughout the
record as the “tab repair” or “tab fix.”
The tab fix was developed by RTDI’s previous owner, and later RTDI
employees testified they did not know exactly what it was intended to do. But
Frank English, RTDI’s manager of fleet operations and safety, testified that he
believed the tab fix was implemented to address the issue with wheel canting.
Duck 6, which RTDI built in 2004, had the tab fix. RTDI sold Duck 6 to RTDS in
early 2005.
On July 27, 2013, a Stretch Duck with 34 passengers on board
experienced an axle housing fracture while on a tour in Branson. The Stretch
Duck was moving slowly at the time, and although the driver reported that the
Stretch Duck had lost its left front wheel, no one was injured. RTDI concluded
the fracture was the result of a 2012 incident when that Stretch Duck was turned
onto its left side during a tornado then lifted back onto its wheels by a crane.
English later testified that RTDI did not conduct any kind of failure analysis or
consult with an engineer in reaching this conclusion; RTDI reached its conclusion
“immediately” when it recognized that it was the same Stretch Duck involved in
the tornado incident.
5
No. 80257-7-I/6
On August 10, 2013, RTDI inspected another of its Stretch Ducks in
Branson and observed that the left front wheel was canted inward at the top.
According to a later summary of the incident, “RTDI determined that the axle
housing was fractured between the knuckle ball and where the axle end is
pressed into and welded into the housing.” Additionally, that Stretch Duck had
previously undergone the tab fix. English later testified that because this time
there was no reason for the canting that RTDI was aware of, RTDI decided to
issue a “service bulletin” to “[m]ake sure it never happened again.”
On October 1, 2013, RTDI issued a service bulletin numbered SB-00-14-
13. The bulletin’s stated reason for release was “[t]o avoid axle fractures and to
strengthen the connection where the knuckle housing ball connects to the axle
housing.” The bulletin directed the reader to weld a metal “collar” into the gap
between the axle housing and the steering knuckle ball (collar modification). The
bulletin’s stated urgency was: “As soon as practical and prior to operating 2014[.]
Until such time this bulletin is reconciled all maintainers are to add the daily
visual inspection of the front wheels.”1 The daily inspection was described as
1 At oral argument, RTDI’s counsel argued the service bulletin clearly
stated that the collar modification needed to be implemented at the end of the
2013 season and before the 2014 season. RTDI’s counsel suggested the
urgency of the bulletin was therefore clear because RTDS’s 2013 season would
have ended in the fall. Wash. Court of Appeals oral argument, Rebecca West v.
Ride the Ducks International LLC, No. 80257-7-I (April 15, 2021), at 7:30-7:44,
8:06-8:08, 8:26-8:45, video recording by TVW, Washington State’s Public Affairs
Network, https://www.tvw.org/watch/?eventID=2021041060. We note this is not
consistent with the record: Eric Bishop, an RTDS driver, testified that RTDS
operates year round; Joe Hatten, RTDS’s maintenance manager, testified that
“into the colder months” RTDS would still run one or two vehicles on a day-to-day
basis; Brian Tracey, RTDS’s president, testified there was a busy and a slow
6
No. 80257-7-I/7
follows:
Due to the axle knuckle boots covering the connection in question[,]
the visual detection of a failing axle housing is not possible[.]
However during visual examination with the (front wheels straight)
you identify a wheel or wheels as being (vertically canted) the Duck
should be removed from service the damaged axle housing
removed (scrapped) and replaced with an axle housing that has
been modified in accordance with this Service Bulletin[.]
RTDI posted the service bulletin to “Duck Central,” RTDI’s resource-
sharing portal to which both licensees and franchisees had access. Herschend
later testified that posting documents to Duck Central would generate an email to
franchisees and licensees. English testified that the service bulletin was also
discussed on biweekly maintenance conference calls, which RTDI hosted as an
“open forum” for franchisees and licensees to “discuss pretty much anything.”
RTDS representatives would sometimes, but not always, participate in those
calls.
Ryan Johnson, RTDS’s director of operations, received the service bulletin
from RTDI and, on October 24, 2013, forwarded it to Joe Hatten, RTDS’s
maintenance manager, and Isaac Hoffman, RTDS’s shop foreman. Hatten later
testified that RTDS was not equipped to conduct the welding called for in the
service bulletin and that the bulletin “generated more questions than answers.”
According to Hatten, he relayed his concerns to Johnson with the understanding
that Johnson would discuss them with RTDS’s president and then get back to
Hatten about what was going to be done. Hatten later testified that he never
season; and Herschend testified that RTDS ran year round, though he could not
remember when that began.
7
No. 80257-7-I/8
heard back from Johnson about how to proceed. Meanwhile, Johnson testified
that once he passed the service bulletin along to RTDS’s maintenance
department, he left it to their discretion whether to carry it out. In any case,
RTDS did not implement the service bulletin, and according to an email Johnson
wrote to his assistant in December 2013, RTDS “ha[d] not done a large majority
of the Service Bulletins because [Johnson] was only notified they existed 2year[s]
ago and to be honest we have a lot of work on our plate and S[ervice] B[ulletin]s
tend to go on the back burner.”
During the tour season, RTDS drivers would complete an inspection at the
beginning of each tour day. That inspection included checking whether the
wheels were canted inward. The driver would also complete a post-trip
inspection at the end of the day. In conducting their inspections, the drivers
would utilize and complete a checklist on a daily vehicle inspection report (DVIR),
which included a “Driver Comments” section where drivers could record
comments. At the end of the tour day, a mechanic would review the DVIR for
driver comments and conduct another inspection. These daily inspections did
not include removing the boot covering the connection point between the axle
housing and the steering knuckle ball; Hatten testified that the boot typically was
removed only annually to inspect the axle housing during the off-season.
On September 24, 2015, RTDS driver Eric Bishop was assigned to Duck
6. He completed a pre-drive inspection at the “Duck Nest,” the Ballard facility
where RTDS kept its vehicles. He then drove Duck 6 to downtown Seattle to
pick up tour passengers near the Space Needle. Among those passengers was
8
No. 80257-7-I/9
Rebecca West, who was visiting Seattle from Montana, West’s friend Tami
Matson, and Matson’s daughter, Tiffani Haman. The three were seated toward
the rear of the vehicle.
The tour made its way through downtown Seattle, then approached the
Aurora Bridge on its way to a boat ramp near Gas Works Park, where it would
enter the water. Bishop later recalled that Duck 6 would have been approaching
the Aurora Bridge, around 10:30 or 11:00 that morning, in the far right of three
northbound lanes. Bishop then moved Duck 6 left into the center lane as the
right lane ended. Bishop recalled that “[i]t was a beautiful day,” traffic was light,
and nothing about Duck 6 seemed out of the ordinary as it approached the
bridge.
Bishop testified that when Duck 6 was on the bridge deck, Bishop heard
and felt a “clunk-clunk,” and then Duck 6 “gently veered off to the right.” Bishop
gently bumped the steering wheel to bring Duck 6 back on course. He testified
that as he started to do that,
there was a very hard, uncommanded left turn. The Duck made a
super sharp turn, she started to turn, I was standing on the brakes
the best I could with both feet, and I was pulling for all my life to get
that thing not to turn, and that steering wheel was like buried in
cement. It didn’t budge. I was a passenger. . . . I had no control.
Bishop then looked up and “saw a black and white wall,” which was the side of
an oncoming charter bus. Duck 6 collided with the bus. Bishop recalled a “loud
crash” and “glass flying everywhere.” West and Matson were ejected from Duck
6 and landed on the pavement. The undisputed cause of the collision was that
Duck 6’s axle housing had fractured at the connection point between the knuckle
9
No. 80257-7-I/10
ball and the axle housing.
West was taken via ambulance to the emergency department at Swedish
Ballard Hospital. West’s medical expert, Dr. Virtaj Singh, later diagnosed West
with a head injury and scalp laceration that required staples, a chronic cervical
sprain, a right-hip injury with a persistent seroma, 2 a chronic right ankle sprain,
fractures in her right fourth and fifth toes, and post-traumatic stress disorder.
It is undisputed that before the September 2015 collision, RTDI was not
aware it was subject to regulation by the National Highway Transportation Safety
Administration (NHTSA) as a vehicle manufacturer. It also is undisputed that
RTDI did not comply with federal reporting requirements with regard to the prior
axle housing fractures or follow NHTSA’s recall process with regard to the
October 2013 service bulletin. After the September 2015 collision, RTDI issued a
formal recall.
Procedure
On March 17, 2016, West, Matson, and Haman sued RTDI and RTDS. 3
Against RTDI, the plaintiffs alleged products liability claims under the WPLA.
Specifically, the plaintiffs alleged that RTDI was liable for construction defect,
design defect, failure to warn at the time of sale, and post-sale failure to warn.
Against RTDS, the plaintiffs alleged negligence; specifically, breach of the duty of
2 According to Singh, a seroma is an inflamed sack that remains after the
blood products from a hematoma or blood-filled bruise, have left.
3 The plaintiffs also sued Bishop. Although it is unclear from the record
when this occurred, RTDI represents that all three plaintiffs settled with Bishop
before trial, and none of the plaintiffs’ claims against Bishop are at issue in this
appeal.
10
No. 80257-7-I/11
a common carrier. 4
On February 9, 2017, the trial court consolidated the plaintiffs’ case with
21 other cases arising from the September 24, 2015 accident solely for pretrial
matters. The other cases included an existing consolidated case involving the
“Dinh Plaintiff Group.” That case was the first to go to trial, in fall of 2018, before
the same trial judge who later presided over the instant case. Among the
witnesses who testified during that trial were English and Brian Deckard, RTDI’s
general manager. The Dinh Plaintiff Group prevailed at trial, and RTDI and
RTDS appealed. 5 That appeal was voluntarily dismissed in August 2019 after
the parties settled.
Turning back to the instant case, on April 25, 2019, RTDS moved in limine
to exclude “[a]ny statement that RTD[S] . . . had a duty as a common carrier to
implement the service bulletin collar fix . . . as inaccurate and misleading.” RTDS
asserted, “Under Washington law, a common carrier is only required to adopt
approved appliances that are in general use and necessary for the safety of
passengers.” It contended the collar modification was not approved, not in
general use, and not necessary for passenger safety and, thus, “the parties
should be precluded from suggesting that RTD[S] . . . had a duty as a common
carrier to implement the collar.” The trial court denied the motion, saying, “I can’t
4 It is undisputed that RTDS was a common carrier vis-à-vis West,
Matson, and Haman. A common carrier is “[a] commercial enterprise that holds
itself out to the public as offering to transport freight or passengers for a fee.”
BLACK’S LAW DICTIONARY 264 (11th ed. 2019).
5 See Ride the Ducks September 24, 2015 Aurora Bridge Collision, No.
79693-3-I (Wash. Ct. App.).
11
No. 80257-7-I/12
say as a matter of law that RTD[S] didn’t have the duty to implement the service
bulletin.”
RTDS also moved to exclude “[r]eferences to mechanical issues other
than those related to stretch duck axle housings . . . as irrelevant and improper
propensity evidence.” It argued that “[e]vidence of maintenance issues not
central to this case would result in generally characterizing RTD[S] . . . as having
maintenance and safety problems,” and “[t]his general characterization would
then improperly encourage the jury to find fault on that basis or to infer that
[RTDS] must have done something wrong regarding Duck 6’s axle housing.” The
trial court ruled as follows:
I see argument from [RTDS] that they didn’t have to put this collar
fix on because it didn’t meet the standard of approved appliances,
and I also see a pretty good argument from [RTDI] that that’s not
why it wasn’t put on. . . . [A]nd everybody gets to fight this out. It’s
a fair defense and can be fairly attacked. Between the context of
the bigger question of did [RTDS] meet the duty of the common
carrier to these plaintiffs, and they are entitled to explore why they
think you didn’t, including the background context of what was
going on in your shop. . . . I don’t want to get into the specific
incidences of things that weren’t repaired. I don’t think anybody
does. . . . It’s a waste of time and it’s irrelevant. But I do think the
overall situation in [RTDS’s] shop allegedly, that’s fair game for
plaintiffs, and it’s fair game for [RTDI].
(emphasis added).
The jury was sworn on May 8, 2019. Testimony began the next day and
continued through June 3, 2019. Witnesses included Bishop; Herschend;
Johnson; Hoffman; RTDS’s president, Brian Tracey; Singh; Hatten; Matson;
Haman; West; West’s husband; West’s counselor; and Dr. James Rousso, a
defense medical expert. Additionally, excerpts of Deckard and English’s
12
No. 80257-7-I/13
testimony from the Dinh Plaintiff Group trial were played for the jury in lieu of live
testimony.
On May 21, 2019, RTDI moved for judgment as a matter of law on three of
the plaintiffs’ WPLA-based theories: design defect, construction defect, and
failure to warn at the time of sale. 6 RTDI asserted that judgment as a matter of
law was warranted because the plaintiffs “have not presented, and will not be
presenting,” any evidence that Duck 6 “was not reasonably safe as designed at
the time of its manufacture or not reasonably safe in construction at the time it
left the control of RTDI.” That same day, plaintiffs’ counsel notified the court that
Haman and Matson’s claims had resolved, thus leaving only West’s claims for
consideration.
On May 29, 2019, RTDS also moved for judgment as a matter of law. It
argued, as it had in its earlier motion in limine, that as a common carrier, its duty
was limited to adopting “approved appliances that are in general use and
necessary for the safety of passengers.” It asserted that judgment as a matter of
law was proper because there was no evidence the collar modification was
approved or necessary for passenger safety, and even if RTDS had a duty to
implement the collar modification, “no evidence at trial would support a finding
that the modification would have prevented the accident.”
The trial court denied both motions.
6RTDI styled its motion as a motion for directed verdict. We refer to the
motion as a motion for judgment as a matter of law in keeping with the 1993
amendments to CR 50. See 14A DOUGLAS J. ENDE, W ASHINGTON PRACTICE: CIVIL
PROCEDURE § 24:2, at 72 (3d ed. 2018).
13
No. 80257-7-I/14
The jury reached a verdict on June 11, 2019. It found that RTDS was
negligent by breaching the duty of a common carrier and that RTDI was liable
under the WPLA for construction defect, design defect, failure to warn at the time
of sale, and post-sale failure to warn. It found both RTDS’s negligence and
RTDI’s breach of its duties under the WPLA to be proximate causes of West’s
injuries and apportioned 60 percent fault to RTDI and 40 percent fault to RTDS.
And, the jury awarded West noneconomic damages of $4 million.
On July 8, 2019, the trial court entered judgment on the verdict. Both
RTDI and RTDS appealed, and their appeals were consolidated. Additional facts
relevant to the issues raised on appeal are set forth below in the discussion of
those issues.
DISCUSSION
RTDI’s Appeal
On appeal, RTDI argues the trial court erred by (1) denying RTDI’s motion
for judgment as a matter of law; (2) not instructing the jury on superseding cause;
and (3) not giving RTDI’s proposed clarification to the jury instruction on West’s
post-sale failure-to-warn claim. As further discussed below, each argument fails.
A. Judgment as a Matter of Law
RTDI asserts that for West to establish her claims of design defect,
manufacturing defect, and failure to warn at the time of sale, West was required
to prove that Duck 6’s axle housing was defective when RTDI remanufactured it
in 2004. RTDI contends that West was unable to make such a showing without
expert testimony and, thus, the trial court erred by denying RTDI’s motion for
14
No. 80257-7-I/15
judgment as a matter of law on those claims. We disagree.
Under CR 50, “[i]f . . . a party has been fully heard with respect to an issue
and there is no legally sufficient evidentiary basis for a reasonable jury to find . . .
for that party with respect to that issue,” then the court may grant judgment as a
matter of law against that party “on any claim . . . that cannot under the
controlling law be maintained without a favorable finding on that issue.” CR
50(a)(1).
“A motion for judgment as a matter of law admits the truth of the
opponent's evidence and all reasonable inferences that can be drawn from it.”
Tapio Inv. Co. I v. State, 196 Wn. App. 528, 538, 384 P.3d 600 (2016).
“ ‘Granting a motion for judgment as a matter of law is appropriate when, viewing
the evidence most favorable to the nonmoving party, the court can say, as a
matter of law, there is no substantial evidence or reasonable inference to sustain
a verdict for the nonmoving party.’ ” Id. (quoting Sing v. John L. Scott, Inc., 134
Wn.2d 24, 29, 948 P.2d 816 (1997)). “ ‘Substantial evidence is said to exist if it is
sufficient to persuade a fair-minded, rational person of the truth of the declared
premise.’ ” Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250(2001) (quoting Brown v. Superior Underwriters, 30 Wn. App. 303, 306, 632 P.2d
887 (1980)).
We review de novo a trial court's decision on a motion for judgment as a
matter of law. H.B.H. v. State, 197 Wn. App. 77, 85, 387 P.3d 1093 (2016).
15
No. 80257-7-I/16
It is undisputed that RTDI is a “product manufacturer” under the WPLA. 7
A product manufacturer is liable to a claimant if, as relevant here: (1) “the
claimant’s harm was proximately caused by the negligence of the manufacturer
in that the product was not reasonably safe as designed” (design defect); (2) “the
claimant’s harm was proximately caused by the negligence of the manufacturer
in that the product was . . . not reasonably safe because adequate warnings or
instructions were not provided” (failure to warn at the time of sale); or (3) “the
claimant’s harm was proximately caused by the fact that the product was not
reasonably safe in construction” (construction defect). RCW 7.72.030(1), (2).
A plaintiff seeking to establish a manufacturer’s liability under RCW
7.72.030 may do so in two distinct ways. Soproni v. Polygon Apartment
Partners, 137 Wn.2d 319, 326, 971 P.2d 500 (1999). “On the one hand, a
plaintiff may attempt to establish liability by showing that, at the time of
manufacture, the likelihood that the product would cause the plaintiff’s harm or
similar harms, and the seriousness of those harms, outweighed the
manufacturer’s burden to design a product that would have prevented those
harms and any adverse effect a practical, feasible alternative would have had on
the product’s usefulness.” Id. (citing Falk v. Keene Corp., 113 Wn.2d 645, 654,
782 P.2d 974 (1989); RCW 7.72.030(1)(a)). “This is the so-called ‘risk utility
7 “ ‘Manufacturer’ includes a product seller who designs, produces, makes,
fabricates, constructs, or remanufactures the relevant product or component part
of a product before its sale to a user or consumer.” RCW 7.72.010(2).
“ ‘Product’ means any object possessing intrinsic value, capable of delivery either
as an assembled whole or as a component part or parts, and produced for
introduction into trade or commerce.” RCW 7.72.010(3).
16
No. 80257-7-I/17
test.’ ” Soproni, 137 Wn.2d at 326. “Alternatively, a plaintiff may employ the
‘consumer expectations’ test, which requires the plaintiff to show that the product
was ‘unsafe to an extent beyond that which would be contemplated by the
ordinary consumer.’ ” Id. at 326-27 (citing Falk, 113 Wn.2d at 654;
RCW 7.72.030(3)).
The consumer expectations test recognizes that certain situations exist
where the type of accident itself may establish a defect:
“In the type of case in which there is no evidence, direct or
circumstantial, available to prove exactly what sort of manufacturing
flaw existed, or exactly how the design was deficient, the plaintiff
may nonetheless be able to establish his right to recover, by
proving that the product did not perform in keeping with the
reasonable expectations of the user. When it is shown that a
product failed to meet the reasonable expectations of the user the
inference is that there was some sort of defect, a precise definition
of which is unnecessary. If the product failed under conditions
concerning which an average consumer of that product could have
fairly definite expectations, then the jury would have a basis for
making an informed judgment upon the existence of a defect.”
Pagnotta v. Beall Trailers of Or., Inc., 99 Wn. App. 28, 37, 991 P.2d 728 (2000)
(quoting Bombardi v. Pochel’s Appliance & TV Co., 10 Wn. App. 243, 247, 518
P.2d 202 (1973)). Relevant considerations under the consumer expectations test
include “ ‘[t]he relative cost of the product, the gravity of the potential harm from
the claimed defect and the cost and feasibility of eliminating or minimizing the
risk.’ ” Falk, 113 Wn.2d at 649 (quoting Seattle-First Nat’l Bank v. Tabert, 86
Wn.2d 145, 154, 542 P.2d 774 (1975)). Additionally, “ ‘[i]n other instances the
nature of the product or the nature of the claimed defect may make other factors
relevant to the issue.’ ” Id. (quoting Tabert, 86 Wn.2d at 154). That said, liability
is not to be imposed “simply because a product causes harm.” Pagnotta, 99 Wn.
17No. 80257-7-I/18
App. at 37.
Applying the foregoing standards, we conclude that the evidence was
sufficient to overcome RTDI’s motion for judgment as a matter of law even in the
absence of expert testimony. Pagnotta is instructive. In February 1994, Austin
Pagnotta was hauling diesel fuel south from Spokane in a Beall trailer he bought
in October 1993. Id. at 30. The road was dry, the weather was clear and cold,
and the road was straight. Id. Pagnotta suddenly felt a tug, as if someone was
pulling on the trailer. Id. He tried to steer against the pull but had no control. Id.
The trailer went off to the right, pulling the tractor after it. Id. The investigating
officer concluded that the back end of the trailer came out of alignment causing
the trailer to leave the road without any fault on Pagnotta’s part. Id. at 31. In
reaching this conclusion, the officer interviewed one witness who said the trailer
suddenly jerked to the right and then went off the road, and another witness who
said the trailer’s axle dropped off the highway to the right and then did a
complete flip, landing on the left side of the tractor and trailer. Id. An insurance
examiner also concluded the accident was the result of some kind of failure in the
trailer’s rear axle. Id.
Pagnotta sued Beall for his injuries, claiming products liability and
negligence. Id. at 32. Beall filed a third-party complaint against Reyco, which
manufactured the trailer’s suspension components. Id. at 30, 32. Reyco moved
for summary judgment and submitted a declaration from an expert who opined
there was no evidence to suggest any of the relevant suspension parts failed
before the accident. Id. at 32. In opposition to Reyco’s motion, Pagnotta offered
18
No. 80257-7-I/19
both the investigating officer and insurance examiner’s depositions. Id. The trial
court granted Reyco’s motion, concluding that neither the investigating officer nor
the insurance examiner was qualified under ER 702 to offer an opinion about the
cause of the accident. Id. at 32-33.
On appeal, this court reversed. Id. at 29. In so doing, we held that
although neither the investigating officer nor the insurance examiner was a
professional engineer or metallurgist, their testimony “would be partly helpful in
the lay sense under ER 701 and in the expert sense under ER 702” based on the
training and qualifications they did have. Id. at 34-35. We also held that when
determining the existence of a defect applying the consumer expectations test,
“expert testimony of the exact defect is not required as a matter of law.” Id. at 39.
We reversed summary judgment, explaining, “A juror does not need to fully know
through expert testimony how a trailer suspension is designed or exactly
operates to understand the alleged defect.” Id.
Here, as in Pagnotta, a juror did not need to fully know how an axle
housing is designed or operates to understand the alleged defect, i.e., that the
connection point between the axle housing and the steering knuckle ball could
fail due to fatigue, causing the wheel to come loose. Furthermore, English
testified that losing a wheel during a fully loaded tour was something that
“shouldn’t happen”; Herschend testified that the fact that the Stretch Duck’s axle
housing could fracture constituted a defect; Hoffman testified that an axle
housing fracture occurring while a Duck was in operation would lead to a
catastrophic accident; and Johnson testified that if he knew a Stretch Duck’s axle
19
No. 80257-7-I/20
housing could unexpectedly fail and that the wheel could fall off, he would take it
out of service. From this evidence, a reasonable juror could find that Duck 6’s
axle housing fracture constituted a failure “ ‘under conditions concerning which
an average consumer of that product could have fairly definite expectations,’ ”
and thus, the jury had “ ‘a basis for making an informed judgment upon the
existence of a defect.’ ” Id. at 37 (quoting Bombardi, 10 Wn. App. at 247).
Therefore, the trial court did not err by applying the consumer expectations test
and denying RTDI’s motion for judgment as a matter of law.
RTDI disagrees and argues, relying on Heaton v. Ford Motor Co., 248 Or.
467, 435 P.2d 806 (1967), 8 that expert testimony was required because “[t]he
susceptibility of failure of an axle housing that was remanufactured 60 years after
its original manufacture and then installed on an amphibious-tour vehicle and
used heavily for another 10-plus years simply is not within common knowledge or
experience.” But RTDI’s argument fails because RTDI did not manufacture the
original axle housing. Rather, it manufactured a vehicle whose axle housing
unexpectedly failed while doing exactly what RTDI built it to do: take passengers
on tours. Furthermore, Heaton is distinguishable. There, the plaintiff appealed
from the dismissal of his claims arising from an incident where the wheel on his
truck failed about 35 miles after striking a 5- to 6-inch diameter rock. Heaton,
248 Or. at 469. The Oregon Supreme Court affirmed the dismissal, writing,
“High-speed collisions with large rocks are not so common . . . that the average
8Heaton was cited with approval in Bombardi. See Bombardi, 10 Wn.
App. at 246-47.
20
No. 80257-7-I/21
person would know from personal experience what to expect under the
circumstances. Nor does anything in the record cast any light upon this issue.
The jury would therefore be unequipped, either by general background or by
facts supplied in the record, to decide whether this wheel failed to perform as
safely as an ordinary consumer would have expected.” Id. at 473 (emphasis
added). Here, by contrast, the testimony in the record was sufficient for the jury
to find that Duck 6 did not perform as safely as an ordinary consumer would have
expected. Also, it is within a lay person’s general background knowledge that an
axle housing on a 10-year-old vehicle should not suddenly fail. Heaton is not
persuasive.
RTDI next argues that the trial court erred because West “failed to
establish either of the required threshold facts to invoke the consumer-
expectation test.” RTDI’s argument fails for three reasons.
First, RTDI cites Pagnotta and Potter v. Van Waters & Rogers, Inc., 19
Wn. App. 746, 578 P.2d 859 (1978), for the proposition that to invoke the
consumer expectation test, “[t]he plaintiff must establish two threshold facts:
(1) the incident must be of a kind that ordinarily does not occur absent a product
defect and (2) the product must have been materially in the same condition as
when it left the manufacturer.” But neither Potter nor Pagnotta so holds. Rather,
Potter and Pagnotta merely establish that the nature of the incident and the
condition of the product are circumstances the jury may consider in determining
whether a product performed in keeping with consumer expectations. See
Potter, 19 Wn. App. at 753 (observing, in reversing the defendants’ motion for
21
No. 80257-7-I/22
summary judgment, that the allegedly defective rope at issue was recently
delivered, appeared new, and was used only once—yet broke the next day while
being used in a normal fashion); Pagnotta, 99 Wn. App. at 38 (“ ‘When the jury
reasonably can find that the product is unchanged from the condition it was in
when sold and the unusual behavior of the product is not due to any conduct on
the part of the plaintiff or anyone else who has a connection with the product,
logic dictates that it is a distinct possibility that there is some defect in the
product.’ ” (quoting Brownell v. White Motor Corp., 260 Or. 251, 258, 490 P.2d
184 (1971)); cf. Falk, 113 Wn.2d at 649 (nature of product or nature of claimed
defect may dictate what factors are relevant to the issue of an ordinary
consumer’s reasonable expectations).
Second, even if West were required to show that Duck 6’s axle housing
fracture was a kind of incident that ordinarily does not occur in the absence of a
defect, there was as discussed, sufficient testimony for the jury to so find.
Finally, even if West were required to show that Duck 6 was materially in
the same condition as when it left RTDI, we are unpersuaded by RTDI’s
contention that continued use—much less use for exactly the purpose for which
Duck 6 was designed—constituted a material change in condition. Rather, the
testimony already discussed was sufficient for a jury to find that Duck 6’s
continued use was not a material change vis-à-vis an axle housing failure.
Indeed, even RTDI’s own service bulletin recommended the collar modification
for all Stretch Ducks without consideration for age or use. And other than
continued use, RTDI points to no evidence that there was an alternate
22
No. 80257-7-I/23
mechanical explanation for Duck 6’s axle housing failure. Cf. Potter, 19 Wn.
App. at 752 (“ ‘It is the law that the plaintiff must establish with reasonable
certainty a manufacturing defect as a cause of the accident . . . . In attempting so
to do, if the evidence shows that the injury is equally or else with reasonable
certainty attributable to other probable causes, he must also exclude such other
causes. But in so doing he is not compelled to meet conjecture or mere
possibilities with proof to the contrary.’ ” (emphasis added) (quoting Kuster v.
Gould Nat’l Batteries, 71 Wn.2d 474, 485, 429 P.2d 220 (1967)).
B. Superseding Cause Instruction
RTDI next contends that there was substantial evidence to support a
finding that RTDS’s failure to implement the collar modification was a
superseding cause of the accident and, thus, the trial court erred by refusing to
instruct the jury on superseding cause. We disagree.
“Jury instructions are sufficient when they allow counsel to argue their
theory of the case, are not misleading, and when read as a whole properly inform
the trier of fact of the applicable law.” Bodin v. City of Stanwood, 130 Wn.2d 726,
732, 927 P.2d 240 (1996). “Where substantial evidence supports a party’s
theory of the case, trial courts are required to instruct the jury on the theory.”
Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517 (2017).
We review a trial court’s decision whether to give a jury instruction “ ‘de
novo if based upon a matter of law, or for abuse of discretion if based upon a
23
No. 80257-7-I/24
matter of fact.’ ” 9 Id. (quoting Kappelman v. Lutz, 167 Wn.2d 1, 6, 217 P.3d 286(2009)).
Here, each of the WPLA based liability theories that West asserted
against RTDI required West to establish proximate cause. See RCW 7.72.030(1)
(“A product manufacturer is subject to liability to a claimant if the claimant’s harm
was proximately caused by the negligence of the manufacturer in that the
product was not reasonably safe as designed or not reasonably safe because
adequate warnings or instructions were not provided.”); RCW 7.72.030(2) (“A
product manufacturer is subject to strict liability to a claimant if the claimant’s
harm was proximately caused by the fact that the product was not reasonably
safe in construction.”).
“Proximate cause is composed of both cause in fact and legal cause.”
Meyers v. Ferndale Sch. Dist., 197 Wn.2d 281, 289, 481 P.3d 1084, (2021).
“[T]he cause in fact inquiry focuses on a ‘but for’ connection, [while] legal cause
is grounded in policy determinations as to how far the consequences of a
9 In a footnote, RTDI characterizes as “puzzling” our Supreme Court’s
statements that refusing an instruction based on a factual dispute is reviewable
only for abuse of discretion. RTDI asserts “the weight of authority from the
federal courts favors de novo review of the sufficiency of the evidence to warrant
instructing on a theory,” and it likens the analysis to an appellate court’s de novo
review under CR 50(a) of whether the evidence is sufficient to support a verdict.
RTDI App. Br. at 34 n.21. Additionally, RTDI has filed a motion to submit
supplemental briefing in support of its assertion that that the trial court abuses its
discretion if it refuses to instruct on a theory that is supported by substantial
evidence.
We do not consider this assertion because, as discussed below, RTDI
was not entitled to a superseding cause instruction as a matter of law.
Accordingly, we deny RTDI’s pending motion to submit supplemental briefing on
the issue of the applicable standard of review.
24
No. 80257-7-I/25
defendant’s acts should extend.” Id. at 289. “A defendant’s conduct is not a
proximate cause if, although it might otherwise have been a proximate cause, a
superseding cause intervenes.” State v. Meekins, 125 Wn. App. 390, 397-98,
105 P.3d 420 (2005). Washington courts regularly look to the Restatement
(Second) of Torts in applying the doctrine of superseding cause. See, e.g.,
Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 812, 733 P.2d 969 (1987);
Herberg v. Swartz, 89 Wn.2d 916, 927-28, 578 P.2d 17 (1978); Anderson v.
Dreis & Krump Mfg. Corp., 48 Wn. App. 432, 445, 739 P.2d 1177 (1987); Doyle
v. Nor-West Pac. Co., 23 Wn. App. 1, 7, 524 P.2d 938 (1979).
The Restatement defines “superseding cause” as “an act of a third person
or other force which by its intervention prevents the actor from being liable for
harm to another which his antecedent negligence is a substantial factor in
bringing about.” Restatement (Second) of Torts § 440 (Am. Law Inst. 1965).
Whether a third party’s intervening act rises to the level of a superseding cause is
an issue of cause in fact. State v. Frahm, 193 Wn.2d 590, 601, 444 P.3d 595(2019) (citing Maltman v. Sauer, 84 Wn.2d 975, 982, 530, P.2d 254 (1975);
McCoy v. Am. Suzuki Motor Corp., 136 Wn.2d 350, 358, 961 P.2d 952 (1998));
but see Campbell, 107 Wn.2d at 824 (Goodloe, J., dissenting) (“Superseding
cause is a relevant factor in determining legal causation.” (emphasis added));
Anderson, 48 Wn. App. at 442 (“The doctrine of superseding cause . . . limits the
situations in which legal causation can be held to exist between two events.”
(emphasis added)). Accordingly, the question is ordinarily left to the jury but may
be determined as a matter of law if reasonable minds could not differ. Frahm,
25
No. 80257-7-I/26
193 Wn.2d at 601. The relevant considerations for determining whether an
intervening act constitutes a superseding cause are “whether (1) the intervening
act created a different type of harm than otherwise would have resulted from the
actor’s negligence; (2) the intervening act was extraordinary or resulted in
extraordinary consequences; [and] (3) the intervening act operated
independently of any situation created by the actor’s negligence.” Campbell, 107
Wn.2d at 812-13 (citing RESTATEMENT (SECOND) OF TORTS § 442 (AM. LAW INST.
1965).
We conclude as a matter of law that RTDS’s failure to implement the collar
modification was not a superseding cause relieving RTDI of liability.
Campbell is instructive. In Campbell, Steve Campbell was working as a
wireman with a crew for Snohomish County Public Utility District 1 (PUD).
Campbell, 107 Wn.2d at 809. The crew was completing maintenance on a
substation, including cleaning of the roof bushings on top of metal-clad
switchgear. Id. The crew foreman went through the standard procedures for de-
energizing the substation so the crew could safely clean the roof bushings. Id. at
810. Unbeknownst to the crew, one set of bushings remained energized after
going through normal shutdown procedures due to an unusual wiring
configuration manufactured by ITE Imperial. Id. Campbell was electrocuted
when he reached down to clean one of those bushings, and he suffered serious
injuries. Id.Campbell sued ITE Imperial, alleging that its wiring configuration was
unreasonably safe unless accompanied by a warning that the bushings could
26
No. 80257-7-I/27
remain energized even after normal shut-down procedures were followed. Id. at
810-11. The trial court instructed the jury that if Campbell’s employer, PUD, was
negligent in failing to discover and warn of the defect and take appropriate
precautions, and if the PUD’s negligence was “ ‘so unanticipated that it can be
said to fall without the realm of reasonable foreseeability’ ” by ITE Imperial, then
PUD’s negligence would be a superseding cause, thus relieving ITE Imperial of
liability. Id. at 812. The jury returned a defense verdict, and on direct appeal to
the Supreme Court, Campbell argued the trial court erred by giving the jury a
superseding cause instruction. Id.Our Supreme Court agreed with Campbell and reversed. Id. at 817. In so
doing, the court concluded that the PUD’s negligence in failing to warn its
employees was reasonably foreseeable. Id. at 814. The court went on:
Viewed differently, the intervening negligence of the PUD did not
result in a different kind of harm than otherwise would have resulted
from ITE Imperial’s failure to warn. The harm caused by PUD’s
negligence—electrical shock and burns—is identical to the harm
brought about by ITE Imperial’s failure to warn. Secondly, the
intervening negligence of the PUD did not operate independently of
the situation created by ITE Imperial’s failure to warn[;] . . . the
PUD’s negligence was “activated” by ITE Imperial’s failure to affix a
warning to its product.
Id. at 815 (emphasis added) (quoting Herberg, 89 Wn.2d at 928).
Here, as in Campbell, RTDS’s alleged intervening negligence did not
result in a different kind of harm to West than otherwise would have resulted from
RTDI’s conduct. Rather, the harm brought about by RTDS’s intervening failure to
implement the collar modification is exactly the same harm the risk of which was
increased by RTDI’s conduct in allegedly designing or manufacturing a defective
27
No. 80257-7-I/28
product and failing to warn of its danger: A catastrophic collision resulting from an
axle housing fracture. Additionally, RTDS’s conduct did not operate
independently of the situation created by RTDI’s conduct. Rather, as in
Campbell, RTDS’s alleged negligence was “activated” by RTDI’s antecedent
conduct in that the only reason RTDS was allegedly negligent was because
RTDI’s product was allegedly defective. Furthermore, that RTDS might not
implement the collar modification cannot reasonably be characterized as an
“extraordinary” occurrence. See Smith v. Acme Paving Co., 16 Wn. App. 389,
396, 558 P.2d 811 (1976) (“Only when the intervening negligence is so highly
extraordinary or unexpected that it can be said to fall without the realm of
reasonable foreseeability as a matter of law, will it be held to supersede
defendant’s negligence.”). For these reasons, we hold as a matter of law that
RTDS’s decision not to implement the collar modification was not a superseding
cause relieving RTDI of liability.
Our holding finds support not only in Campbell, but also in the
Restatement (Second) of Torts, which provides:
Where the negligent conduct of the actor creates or increases the
risk of a particular harm and is a substantial factor in causing that
harm, the fact that the harm is brought about through the
intervention of another force does not relieve the actor of liability,
except where the harm is intentionally caused by a third person and
is not within the scope of the risk created by the actor’s conduct.
RESTATEMENT (SECOND) OF TORTS § 442B (AM. LAW INST. 1965) (emphasis
added). A comment to Restatement § 442B explains further:
If the actor's conduct has created or increased the risk that a
particular harm to the plaintiff will occur, and has been a substantial
factor in causing that harm, it is immaterial to the actor's liability that
28
No. 80257-7-I/29
the harm is brought about in a manner which no one in his position
could possibly have been expected to foresee or anticipate. This is
true not only where the result is produced by the direct operation of
the actor's conduct upon conditions or circumstances existing at the
time, but also where it is brought about through the intervention of
other forces which the actor could not have expected, whether they
be forces of nature, or the actions of animals, or those of third
persons which are not intentionally tortious or criminal. This is to
say that any harm which is in itself foreseeable, as to which the
actor has created or increased the recognizable risk, is always
“proximate,” no matter how it is brought about, except where there
is such intentionally tortious or criminal intervention, and it is not
within the scope of the risk created by the original negligent
conduct.
Id., Comment b (emphasis added). Cf. Doyle, 23 Wn. App. at 7 (“[E]ven if the
intervening acts were as a matter of law unforeseeable, there would remain the
question of whether the harm was within the risk created by [the antecedent
actor’s] negligence.” (emphasis added) (citing RESTATEMENT (SECOND) OF TORTS
§ 442B)). Here, the harm caused by RTDS’s failure to implement the collar
modification fell squarely within the scope of the risk created by RTDI’s original
negligent conduct. Accordingly, RTDS’s failure to implement the collar
modification, however unforeseeable by RTDI, does not relieve RTDI of liability.
Furthermore, with regard to West’s failure-to-warn claim, this case also
falls within the coverage of § 449 of the Restatement, on which the Campbell
court also relied: “Under § 449, even criminal conduct of a third party does not
constitute a superseding cause ‘[i]f the likelihood that a third person may act in a
particular manner is . . . one of the hazards which makes the actor negligent’.”
Campbell, 107 Wn.2d at 815 (alteration in original) (quoting RESTATEMENT
(SECOND) OF TORTS § 449 (AM. LAW INST. 1965). Here, as was the case in
Campbell, the likelihood that RTDS would not implement the collar modification
29
No. 80257-7-I/30
(or take some other action in response to the service bulletin) is one of the
hazards that made RTDI’s service bulletin allegedly inadequate. See id. (“In this
case, the likelihood that the PUD would not properly shut down the . . . bushing is
the very hazard which makes ITE Imperial’s switchgear unreasonably safe if
unaccompanied by an adequate warning. Accordingly, under § 449 the PUD’s
negligence does not constitute a superseding cause.”). For the foregoing
reasons, we conclude as a matter of law that RTDI was not entitled to a
superseding cause instruction and, thus, the trial court did not err by refusing to
give one.
RTDI disagrees and chiefly relies on Little v. PPG Industries, Inc., 19 Wn.
App. 812, 579 P.2d 940 (1978), aff’d as modified, 92 Wn.2d 118, 594 P.2d 911(1979), to argue it was entitled to a superseding cause instruction. In Little,
Robert Little, a Bethlehem Steel employee, was overcome by and died from a
chemical produced by PPG Industries after using the chemical to clean a poorly
ventilated space. 19 Wn. App. at 814. The barrels in which PPG sold the
chemical to Bethlehem Steel bore a warning advising, “Vapor may be harmful.
Use with adequate ventilation. Avoid prolonged or repeated breathing of vapor.”
Id. Additionally, there was evidence that Bethlehem Steel had specific
knowledge of the chemical’s dangerous propensities, and Laverne Crossen,
Bethlehem’s representative in charge of employee safety, testified that before
Little’s death, Crossen had received a memo from the company’s home office
“advising him of two separate accidents involving four employees who were
overcome and lost consciousness by overexposure to vapors from the solvent in
30
No. 80257-7-I/31
question” and reiterating the requirement for adequate ventilation. Id. at 825.
Yet Crossen took no action with regard to the notice. Id. Based on the foregoing
evidence, this court held the issue of superseding cause based on Bethlehem
Steel’s negligence should be presented to the jury on retrial. Id.
RTDI’s reliance on Little is misplaced for three reasons. First, Little
involved only failure-to-warn claims. See id. at 819. Nothing in Little suggests
that a downstream buyer’s failure to implement a recommended repair is a
superseding cause with regard to the manufacturer’s antecedent conduct in
designing or constructing a defective product. Accordingly, Little does not
support the proposition that RTDI was entitled to a superseding cause instruction
with regard to West’s design defect and construction defect claims.
Second, Little is distinguishable even with regard to West’s failure-to-warn
claims because Little involved an intervening act that directly contravened the
manufacturer’s specific instructions about how its otherwise non-defective
product should and should not be used. Specifically, in Little, PPG had affixed a
warning on its product advising Bethlehem Steel that “[v]apor may be harmful”
and directing Bethlehem Steel that its inherently dangerous chemical should be
used with adequate ventilation and that prolonged or repeated breathing should
be avoided. Id. at 814. Bethlehem Steel’s home office later reiterated the
requirement for adequate ventilation. Id. at 825. Yet it nonetheless assigned
Little to use the product in a manner directly contrary to those instructions. See
id. In other words, Bethlehem Steel intervened by ignoring the manufacturer’s
specific instructions about how to use a non-defective product.
31
No. 80257-7-I/32
Here, by contrast, RTDI does not claim that RTDS intervened by ignoring
a specific instruction about how to (or not to) use an otherwise non-defective
Stretch Duck. Rather, the service bulletin directed the reader to repair RTDI’s
already defective product. 10 Furthermore, nothing in the service bulletin directed
that Stretch Ducks be taken out of service or used a certain way until the collar
modification was performed; rather, it recommended only that Stretch Ducks be
taken out of service if wheel canting was observed. Little is distinguishable on its
facts.
Finally, in Campbell, our Supreme Court characterized the outcome in
Little as anomalous:
The manufacturer bears responsibility for affixing an adequate
warning to its product, and this duty generally is not delegable.
Thus, it would be anomalous to hold that an employer’s failure to
warn constituted a superseding cause. But see Little . . . . Such a
rule might improperly shift the duty of warning to product
purchasers. Although such a purchaser might be held jointly liable
for breach of its duty to warn, its negligence generally should not
relieve the manufacturer of liability for failure to warn.
Campbell, 107 Wn.2d at 814 (emphasis added; some citations omitted).
Accordingly, it did not adopt the principle that the court applied in Little, i.e., that
“ ‘[w]here the buyer is notified of the danger, or discovers it for himself, and
10In this regard, the instant case is also distinguishable from two other
cases on which RTDI relies. See Taylor, 187 Wn.2d at 768 (trial court was within
its discretion to give superseding cause instruction where doctor used defendant
manufacturer’s equipment to operate on obese patient with prior lower abdominal
surgeries despite specific warnings not to use equipment on such patients);
Minert v. Harsco Corp., 26 Wn. App. 867, 873, 875, 614 P.2d 686 (1980) (holding
that trial court did not err by giving superseding cause instruction where plaintiff’s
employer failed to follow defendant manufacturer’s instructions requiring
scaffolding be stabilized).
32
No. 80257-7-I/33
delivers the product without warning, it usually has been held that the
responsibility is shifted to him, and that his negligence supersedes the liability of
the seller.’ ” Little, 19 Wn. App. at 824 (quoting W ILLIAM L. PROSSER, TORTS §
102, at 667-68 (4th ed. 1971)). Instead, the Supreme Court in Campbell held
that “[a]ssuming this court were to adopt this principle, it does not apply to this
case.” Campbell, 107 Wn.2d at 817 (emphasis added). It then distinguished
Little on its facts, observing that Little involved an employer that “had actual,
specific knowledge that the product was unreasonably unsafe, and that four
employees had been overcome by the chemical on two previous occasions.” Id.
at 816.
In short, and contrary to RTDI’s assertions, the Campbell court did not
adopt a general standard wherein a non-employer’s intervening act constitutes a
superseding cause when the intervening actor had actual, specific knowledge
that a product was unreasonably unsafe and failed to warn or protect the plaintiff.
Rather, the Campbell court confined Little to its facts while not expressly
disapproving of the specific outcome therein but acknowledging it as anomalous
given the general rule that a manufacturer’s duty to warn is not delegable.
Because Little is distinguishable from the instant case for reasons already
discussed, 11 we too confine Little to its facts and find it unpersuasive here.
11 Although the parties do not discuss it, there is an additional policy based
reason to distinguish Little. Little was decided in 1978, i.e., when Washington
was still a joint-and-several liability jurisdiction. See Kottler v. State, 136 Wn.2d
437, 443, 963 P.2d 834 (1998) (explaining that in 1986, the Legislature abolished
common law joint-and-several liability in most circumstances in favor of
proportionate liability). And because Bethlehem Steel was an industrial
employer, it almost certainly was immune from tort liability under Washington’s
33
No. 80257-7-I/34
RTDI next argues that a superseding cause instruction was warranted
because there was sufficient evidence from which a jury could find that RTDS’s
failure to implement the service bulletin was unforeseeable. But as illustrated by
Campbell and by the Restatement (Second) of Torts § 442B, when it comes to a
superseding cause analysis, the proper focus of the foreseeability inquiry is the
nature of the harm, not the nature of the intervening act. Indeed, even RTDI’s
proposed superseding cause instruction recognized this stating, “It is not
necessary that the sequence of events or the particular resultant injury or event
be foreseeable. It is only necessary that the resultant injury or event fall within
the general field of danger which the defendant should reasonably have
anticipated.” (emphasis added); see also 6 WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTIONS: CIVIL 15.05, at 206 (2019). Where, as here, RTDS’s
intervening act resulted in exactly the same harm the risk of which was increased
by RTDI’s antecedent conduct, no reasonable juror would have found that the
industrial insurance laws. The Little court may well have been concerned with
holding PPG fully responsible for Little’s death given Bethlehem Steel’s highly
culpable conduct vis-à-vis its employee. Cf. Clark v. PacifiCorp, 118 Wn.2d 167,
190, 822 P.2d 162 (1991) (holding that under proportionate fault principles, third-
party tortfeasors should be allowed to plead an employer’s negligence as a
partial defense to “prevent the employer from taking advantage of his own
wrong”), superseded by statute as stated in Gilbert H. Moen Co. v. Island Steel
Erectors, Inc., 128 Wn.2d 745, 759 n.7, 912 P.2d 472 (1996). Indeed, one
commentator has listed Little among cases applying superseding cause in
response to “the unfairness of holding a manufacturer liable for the entirety of an
employee’s injury when an employer’s culpable or highly culpable conduct also
caused the injury.” Michael D. Green, The Unanticipated Ripples of Comparative
Negligence: Superseding Cause in Products Liability & Beyond, 53 S.C. L. REV.
1103, 1133-34 & n.140 (2002) (positing that “there . . . is no need for superseding
cause analysis . . . in those jurisdictions that have modified joint and several
liability so that non-parties may be considered by the jury for apportionment of
comparative responsibility”).
34
No. 80257-7-I/35
harm fell outside the field of danger that RTDI should reasonably have
anticipated. RTDI’s argument fails as a matter of law.
C. Instruction on “Product User”
RTDI’s final contention on appeal is that reversal is required because the
trial court’s Instruction 20 misled the jury by suggesting that RTDI’s duty to warn
extended to individual Duck passengers. 12 We disagree.
Under the WPLA, “[a] product manufacturer is subject to liability to a
claimant if the claimant’s harm was proximately caused by the negligence of the
manufacturer in that the product was . . . not reasonably safe because adequate
warnings or instructions were not provided.” RCW 7.72.030(1). For purposes of
a post-sale failure-to-warn claim,
A product is not reasonably safe because adequate warnings or
instructions were not provided after the product was manufactured
where a manufacturer learned or where a reasonably prudent
manufacturer should have learned about a danger connected with
the product after it was manufactured. In such a case, the
manufacturer is under a duty to act with regard to issuing warnings
or instructions concerning the danger in the manner that a
reasonably prudent manufacturer would act in the same or similar
circumstances. This duty is satisfied if the manufacturer exercises
reasonable care to inform product users.
RCW 7.72.030(1)(c) (emphasis added).
12 RTDI objected to this instruction by incorporating by reference the
arguments it made during the Dinh Plaintiff Group trial. In the Dinh Plaintiff
Group trial, RTDI argued, as a matter of statutory interpretation, that the term
“product users” excludes passengers, who “no more ‘use’ the Duck than an
airline passenger ‘uses’ a Boeing 737.” On appeal, RTDI “abandons that specific
contention,” arguing instead that because no reasonable manufacturer in its
position would have attempted to warn individual Duck passengers, no
reasonable juror could find that RTDI breached its duty by warning only RTDS.
RTDS does not contend that this argument is being raised for the first time on
appeal, and thus, we reach the merits.
35
No. 80257-7-I/36
Here, the court, in Instruction 20, instructed the jury as follows:
RTDI as a manufacturer has a duty to supply products that
are reasonably safe.
A product may be not reasonably safe because adequate
warnings or instructions were not provided after the product was
manufactured.
A product is not reasonably safe because adequate
warnings or instructions were not provided after the product was
manufactured if:
1. A manufacturer learned, or if a reasonably prudent
manufacturer should have learned, about a danger connected with
the product after it was manufactured;
2. Without adequate warnings or instructions, the product
was unsafe to an extent beyond that which would be contemplated
by an ordinary user; and
3. The manufacturer failed to issue warnings or instructions
concerning the danger in the manner that a reasonably prudent
manufacturer would act in the same or similar circumstances.
The duty to issue warnings or instructions is satisfied if the
manufacturer exercises reasonable care to inform product users.
(emphasis added).
RTDI asserts that as a matter of law, no reasonably prudent manufacturer
in RTDI’s position would have attempted to warn all Duck passengers that
Stretch Duck axle housings could fail. Thus, RTDI contends, the trial court
abused its discretion by refusing to give a proposed instruction that would have
added, at the end of Instruction 20, “In this case, the product user is RTDS.”
Specifically, RTDI contends that without this additional sentence, the court’s jury
instruction “was misleading because it suggested that RTDI was required to warn
Duck passengers, in addition to RTDS.” We disagree.
As discussed, “[j]ury instructions are sufficient when they allow counsel to
argue their theory of the case, are not misleading, and when read as a whole
properly inform the trier of fact of the applicable law.” Bodin, 130 Wn.2d at 732.
36
No. 80257-7-I/37
“When these conditions are met, it is not error to refuse to give detailed
augmenting instructions.” Id.
Here, as RTDI acknowledges, Instruction 20 correctly stated the law. And
contrary to RTDI’s assertion, Instruction 20 does not suggest that RTDI was
required to warn individual Duck passengers. Rather, it correctly instructed the
jury that a manufacturer breaches its duty by failing to “act with regard to issuing
warnings or instructions concerning the danger in the manner that a reasonably
prudent manufacturer would act in the same or similar circumstances,” RCW
7.72.030(1)(c), but can satisfy that duty by exercising reasonable care to inform
product users, which RTDI concedes on appeal could include passengers.
Furthermore, had RTDI’s theory been that despite not notifying NHTSA or issuing
a recall, RTDI exercised reasonable care to inform product users by informing
only RTDS, Instruction 20 would have allowed RTDI to so argue. Cf. Lunt v. Mt.
Spokane Skiing Corp., 62 Wn. App. 353, 361, 914 P.2d 1189 (1991) (ski bindings
manufacturer satisfied duty to warn end user by providing detailed warnings to
equipment rental provider where manufacturer had reasonable basis to believe
rental provider would pass along warnings). Instead, during closing, RTDI’s
counsel simply conceded that by not issuing a formal recall, RTDI breached its
duty. 13 For these reasons, we hold that the trial court did not abuse its discretion
by refusing to give RTDI’s augmenting instruction. Cf. Anfinson v. FedEx Ground
13 Specifically, RTDI’s counsel argued, “So on this question on the special
verdict form, warnings after the sale, you will have to say, I think, in fairness, that
[RTDI] didn’t meet its burden to provide the post-sale warning with this product.
So you’re going to answer this question yes.”
37
No. 80257-7-I/38
Package Sys., Inc., 159 Wn. App. 35, 44, 244 P.3d 32 (2010) (“Jury instructions
are sufficient if they permit each party to argue their theory of the case, do not
mislead the jury, and when read as a whole, properly inform the jury of the
applicable law. No more is required.” (emphasis added; footnote omitted)). 14
RTDI disagrees and points out that the Restatement (Third) of Torts:
Products Liability provides:
(a) One engaged in the business of selling or otherwise distributing
products is subject to liability for harm to persons or property
caused by the seller’s failure to provide a warning after the time of
sale or distribution of a product if a reasonable person in the seller’s
position would provide such a warning.
(b) A reasonable person in the seller’s position would provide a
warning after the time of sale if:
(1) the seller knows or reasonably should know that the product
poses a substantial risk of harm to persons or property; and
(2) those to whom a warning might be provided can be
identified and can reasonably be assumed to be unaware of the
risk of harm; and
(3) a warning can be effectively communicated to and acted on
by those to whom a warning might be provided; and
(4) the risk of harm is sufficiently great to justify the burden of
providing a warning.
RESTATEMENT (THIRD) OF TORTS – PRODUCTS LIABILITY § 10 (AM. LAW INST. 1998)
(emphasis added). RTDI relies on this section of the Restatement to assert that
no reasonable manufacturer in RTDI’s position would have provided a warning to
Duck passengers because (1) “RTDI had no ability to identify potential Duck
14 Because the panel may affirm on the basis that Instruction 20 was
sufficient and not misleading, it need not consider RTDI’s argument that the trial
court erred by relying on Rublee v. Carrier Corp., 192 Wn.2d 190, 428 P.3d 1207(2018), in reaching its decision. See Young v. Toyota Motor Sales, U.S.A., 9 Wn.
App. 2d 26, 37, 442 P.3d 5 (2019) (“We can affirm a trial court judgment on any
basis within the pleadings and proof.”). Similarly, it also need not consider
West’s response that RTDI’s argument “is a ‘learned intermediary’ argument by
another name.”
38
No. 80257-7-I/39
passengers or effectively communicate a warning to them” and (2) “even if RTDI
could somehow reach potential Duck passengers, they were not in a position to
act to prevent axle-housing failure.”
But no Washington court has adopted this section of the Restatement to
assess whether a manufacturer satisfied its duty under RCW 7.72.030(1)(c), and
we decline to do so here. 15
Furthermore, even if Instruction 20 were misleading (which it was not),
RTDI fails to establish prejudice. See Keller v. City of Spokane, 146 Wn.2d 237,
249, 44 P.3d 845 (2002) (“Even if an instruction is misleading, it will not be
reversed unless prejudice is shown.”). RTDI points out that during closing West’s
counsel argued, with regard to RTDI’s response to the July 2013 incident in
which an axle housing failed during a Branson tour,
[T]hey don’t disclose to anybody, at least they don’t disclose to
Seattle what the real problem was, or that they had a Duck full of
passengers in a vehicle where that axle housing fractured, and they
don’t notify the national governing board about it, they just do their
own in-house thing. In fact, they don’t do the recall, which we saw
this morning that they were supposed to do, they just in-house fix it
with the guys we saw on TV, Frank English and Brian Deckard.
RTDI contends, relying on Anfinson v. FedEx Ground Package System, 174
Wn.2d 851, 281 P.3d 289 (2012), that “the jury could well have taken this
argument as suggesting that one of the ways RTDI breached its post-
manufacture duty to warn was not issuing warnings to Duck passengers.”
15 Even in the Iowa case that RTDI cites in favor of adopting this
Restatement section, the court adopted the factors set forth in § 10 only as
“factors to consider” and recognized that “the particular facts of each case
determine whether conduct is reasonable.” Lovick v. Wil-Rich, 588 N.W.2d 688,
695-96 (Iowa 1999).
39
No. 80257-7-I/40
But Anfinson is readily distinguishable because there, one party’s counsel
took advantage of an ambiguous instruction by “actively encourag[ing] the jury to
apply an erroneous legal standard.” 174 Wn.2d at 876. Here, by contrast,
West’s counsel merely pointed to evidence from which a jury could reasonably
infer, consistent with RCW 7.72.030(1)(c) and Instruction 20, that RTDI breached
its duty by failing to act in the manner that a reasonably prudent manufacturer
would have—not by failing to warn individual Duck passengers. And although
the trial court did observe during the Dinh Plaintiff Group arguments regarding
the “product user” issue that it was concerned about the jury reaching an
“erroneous verdict,” that statement does not necessarily mean, as RTDI asserts,
that the trial court was worried about “holding RTDI liable on an improper basis.”
The trial court could just as likely have been concerned about the jury relieving
RTDI of liability where liability should attach.
RTDI next suggests that the trial court’s ruling would lead to absurd
results. It asserts, “Under the trial court’s ruling, every time Boeing sends its
airline customers a service bulletin directing them to address a safety issue with
its planes, Boeing will need to publish advertisements for an indefinite number of
years afterward to notify potential airline passengers about the issue and
recommend that they check with their airline before flying to make sure the airline
took the necessary steps to address the problem.” RTDI is incorrect. Under the
trial court’s ruling, and consistent with the WPLA, a manufacturer like Boeing
need only act as a reasonably prudent manufacturer in the same or similar
circumstances would act.
40
No. 80257-7-I/41
RTDS’s Appeal
In its appeal, RTDS argues the trial court erred by: (1) denying RTDS’s
motion for judgment of law; (2) denying RTDS’s motion in limine to exclude
evidence that RTDS had a duty to implement the collar modification; (3) denying
RTDS’s motion in limine to exclude evidence of staffing issues in its maintenance
department; and (4) allowing West to testify to medical causation. We discuss
each of these alleged errors below.
A. Judgment as a Matter of Law
RTDS contends that there was no evidence from which the jury could find
that RTDS breached its duty to West, and thus, the trial court erred by denying
RTDS’s motion for judgment as a matter of law. We disagree.
West alleged that RTDS was negligent. To prevail on her negligence
claim, West was required to establish “ ‘(1) the existence of a duty to [West], (2) a
breach of that duty, (3) a resulting injury, and (4) the breach as the proximate
cause of the injury.’ ” Meyers, 481 P.3d at 1088 (internal quotation marks
omitted) (quoting N.L. v. Bethel Sch. Dist., 186 Wn.2d 422, 429, 378 P.3d 162(2016)).
It is undisputed that RTDS is a common carrier. “[A] common carrier owes
the highest degree of care to its passengers ‘commensurate with the practical
operation of its conveyance at the time and place in question’ and ‘consistent
with the practical operation of its business.’ ” Tortes v. King County, 119 Wn.
App. 1, 7, 84 P.3d 252 (2003) (internal quotation marks omitted) (quoting Tinder
v. Nordstrom, Inc., 84 Wn. App. 787, 796, 929 P.2d 1209 (1997)). Washington
41
No. 80257-7-I/42
has long recognized that a common carrier’s duty to exercise the highest degree
of care extends to “ ‘the selection, maintenance, inspection and use of its cars
and their appliances.’ ” Leach v. Sch. Dist. No. 322, 197 Wn. 384, 387, 85 P.2d
666 (1938) (quoting Adduci v. Boston Elevated Ry. Co., 215 Mass. 336, 337, 102
N.E. 315 (1913)). Accordingly, if there was any evidence that RTDS failed to
exercise the highest degree of care in maintaining or inspecting Duck 6, the trial
court was required to submit the question of negligence to the jury. See
Peterson v. City of Seattle, 51 Wn.2d 187, 192, 316 P.2d 904 (1957) (“If there is
any evidence tending to show that the carrier failed to comply with the required
standard of care, then the question of negligence must be left to the jury.”) That
said, “the duty or standard of care owed by a common carrier is not one of strict
liability.” Tortes, 119 Wn. App. at 7. “A common carrier is not the insurer of its
passengers’ safety, and negligence should not be presumed or inferred from the
mere happening of an accident.” Id. at 7-8.
Here, there was evidence from which a reasonable juror could find that, by
not implementing the collar modification, RTDS breached its common carrier duty
of care. The collar modification was recommended in a service bulletin issued by
the manufacturer itself and that expressly stated its reason for release was to
“avoid axle fractures.” Multiple RTDS employees testified they understood the
risk a potential axle housing fracture posed. Johnson testified that he understood
that “if there are problems with the front axle or steering, that incidents could
happen.” Hoffman testified that from a mechanic’s standpoint, the risk of a
fracture was that a “[w]heel can come off,” and he knew that if an axle housing
42
No. 80257-7-I/43
fracture occurred while a Stretch Duck was in operation, it could lead to a
catastrophic accident. Hatten also testified that when an axle housing fracture
occurs, it can lead to a catastrophic accident.
Furthermore, and although Hatten testified RTDS was not equipped to
conduct the welding called for in the service bulletin, he also testified that on prior
occasions, RTDS had hired outside welders for projects. English testified that
after RTDI issued the service bulletin, he called Johnson to make sure that RTDS
was taking care of it, and Johnson “responded that, yes, he would take care of it,
that he had some kind of other issue that was too close to home, or something
like that, on a rear wheel.” English also testified that all of RTDI’s licensees and
franchisees other than RTDS implemented the collar modification.
Viewing the foregoing evidence in the light most favorable to West and
RTDI, a reasonable juror could have found that by not implementing the collar
modification, RTDS breached its common carrier duty of care.
RTDS disagrees and asserts that “[t]o establish a breach of duty, [West]
had to establish that RTDS had the obligation to implement the collar
modification because it was in general use, approved, and was necessary for
passenger safety.” RTDS cites Leach and Brown v. Crescent Stores, Inc., 54
Wn. App. 861, 776 P.2d 705 (1989), for the proposition that a common carrier’s
duty is limited to adopting approved appliances that are in general use and
necessary for the safety of passengers.
But neither Leach nor Brown so holds. Rather, each case confirms that a
common carrier has a duty to exercise a high degree of care in selecting,
43
No. 80257-7-I/44
maintaining, inspecting, and using its vehicles. Leach, 197 Wn. at 387; Brown,
54 Wn. App. at 867. While adopting approved appliances that are in general use
and necessary for the safety of passengers is certainly one aspect of that duty,
neither case holds that adopting such appliances is the extent of that duty.
Furthermore, Leach and Brown are distinguishable. In Leach, the plaintiff
argued that the defendant should have installed shatterproof glass in its school
busses alleging that this kind of glass “was well known and easily obtainable in
the open market, and had been in common use in school busses . . . for several
years.” 197 Wn. at 385. In Brown, the plaintiff, who was injured when she was
struck by a closing elevator door, argued that the elevator’s owner should have
installed photoelectric eyes in its elevators despite evidence that photoelectric
eyes were not available at the time of the accident. 54 Wn. App. at 863, 867-68.
In each case, the court disagreed with the plaintiff, explaining that a common
carrier “is not required to provide immediately and regardless of expense every
new equipment that human skill and ingenuity devises to prevent accidents.”
Leach, 197 Wn. at 387-88; Brown, 54 Wn. App. at 867-68.
The instant case is not a case about a common carrier that merely
declined to implement “every new equipment that human skill and ingenuity
devises to prevent accidents.” Instead, and viewing the evidence in the light
most favorable to West and RTDI, this is a case about a common carrier that did
not implement a modification despite the fact that the modification was specified
by the manufacturer itself, urged to be completed no later than the beginning of
the next tour season, and expressly intended to prevent a possible axle housing
44
No. 80257-7-I/45
fracture—an occurrence that the common carrier’s own mechanics understood
could be catastrophic. Leach and Brown do not control, and the jury did not need
to find that the collar modification was approved, in general use, and necessary
for passenger safety to find that RTDS breached its common carrier duty by not
implementing it. 16
RTDS argues that even if there was evidence from which the jury could
find that RTDS breached its duty by not installing the collar modification,
judgment as a matter of law was still proper because there was no evidence
upon which a jury could reasonably find that breach was the proximate cause of
the collision. But as discussed, English testified that all of RTDI’s licensees and
franchises other than RTDS implemented the collar modification. He also
confirmed that before recommending the collar modification, RTDI had
experienced five axle housing failures within a span of 10 years—an almost 10
percent failure rate among Stretch Ducks. And Herschend testified that he was
not aware of any incidents involving any Stretch Duck axle housing on which the
collar modification was implemented. Viewing this evidence and all reasonable
inferences therefrom in the light most favorable to West and RTDI, a reasonable
juror could find that had RTDS implemented the collar modification, the
September 24, 2015 collision would not have occurred. Accordingly, judgment
16Because we affirm based on evidence of this alleged breach alone, we
need not rely on evidence of the other alleged breaches West points to in her
response brief, i.e., “failing to follow up with RTDI about performing the collar
modification, failing to contact an outside welding vendor to perform the
modification, failing to attempt effective inspections of axle housings, or failing to
take Stretch Ducks out of operation until the axle housing defect was addressed.”
45
No. 80257-7-I/46
as a matter of law was properly denied.
B. Evidence of Duty to Implement Collar Modification
RTDS argues that reversal is required because the trial court erred by
denying RTDS’s motion in limine to exclude evidence that RTDS had a duty to
implement the collar modification. We disagree for two reasons.
First, to support its argument, RTDS relies entirely on its assertion that
RTDS was required to implement the collar modification only if it was an
approved appliance that was in general use and necessary for passenger safety.
But as discussed above, installation of such appliances is not the extent of a
common carrier’s duty.
Second, an evidentiary error requires reversal only if it is prejudicial.
RTDS asserts that “[t]he admission of the evidence and argument about the
collar modification was prejudicial error requiring a new trial.” But RTDS does
not provide any analysis for this conclusory assertion, nor does it provide
references to “the evidence and argument” it asserts was prejudicial. See RAP
10.3(a)(6) (requiring argument to include references to relevant parts of the
record). Therefore, even if the trial court erred in denying RTDS’s motion in
limine, RTDS fails to establish that reversal is required.
C. Evidence of Other Maintenance Issues
RTDS contends the trial court erred by denying RTDS’s motion in limine
seeking to limit the introduction of evidence that RTDS had maintenance or
safety problems. Specifically, RTDS contends that the evidence was
inadmissible propensity evidence under ER 404(b). RTDS also contends the
46
No. 80257-7-I/47
probative value of that evidence was substantially outweighed by its potential for
prejudice and, thus, it was an abuse of discretion to admit it. We hold that RTDS
failed to preserve these contentions for appeal.
RTDS’s motion in limine was narrowly focused on “mechanical issues
other than those related to stretch duck axle housings.” RTDS confirmed this
during oral argument below, stating, “references to mechanical issues, other than
those related to stretch Duck axle housing[s] should be excluded as irrelevant
and propensity evidence.” RTDS’s counsel’s argument also focused on specific
mechanical failures:
I think the Court expressed concern that if one digs really deeply
into the specs of every single event that one argues is a
maintenance failure it then begins to color – it allows the exception
– the potential exceptions to become the rule. Because we can’t
say oh, let’s go to, you know, April 21st, no failures. April 22, no
failures. April 23rd, no failures. Because frankly that would be
boring and cumulative. But on the other hand, if you are able to – if
plaintiffs are able to highlight every single failure, regardless of
whether it was a turn signal that went out, if it was a lug nut that
didn’t get tightened properly, if it was a rear axle shaft that tends to
break, which is no fault of the maintenance department at all. It’s a
quirk of the vehicle. Then all of a sudden not only are we having an
extraordinarily like then trial in order to sort things out, which is a
huge waste of time under 403, but it’s not going to the heart of the
case . . . . [M]aybe some direction needs to be given . . . , otherwise
we walk right into 404(b) and create each one of these failures as a
microcosm of what our shop is about, and how we handled things.
And, RTDS proposed a resolution consistent with the trial court’s earlier ruling in
the Dinh Plaintiff Group trial:
I think the way in which the Court balanced this in [Dinh], I think it
was appropriate, not exactly what I asked for, but I think it was
appropriate in that it allowed the plaintiffs to explore those issues,
and issues in a grander sense of what staffing levels were required,
what staffing levels should have been used in contrast to the fact
that we did have the staffing levels of [RTDI] months before the
47
No. 80257-7-I/48
accident.
The trial court ultimately ruled, consistent with this proposal, that “specific
incidents of things that weren’t repaired” would be excluded as irrelevant, but that
“the overall situation in your shop allegedly, that’s fair game for plaintiffs, and it’s
fair game for [RTDI].”
In short, the only argument RTDS advanced below was that evidence of
specific mechanical issues should be excluded, and the trial court agreed. Yet
on appeal, RTDS contends that the trial court should also have excluded more
generalized evidence that RTDS’s maintenance department was understaffed or
disorganized. RTDS did not make that argument below, and it also did not object
on ER 404(b) or ER 403 grounds to any of the specific instances of testimony it
now argues were prejudicial. Therefore, we decline to review the trial court’s
decision to admit that evidence. See RAP 2.5(a) (“The appellate court may
refuse to review any claim of error which was not raised in the trial court.”); ER
103(a)(1) (requiring timely objections “stating the specific ground of objection”). 17
D. Lay Testimony Regarding Boot
West wore a boot on her right foot during trial. According to West’s
husband, West started wearing the boot that week. During West’s direct
examination, her testimony about the boot was as follows:
Q. . . . I see you have a boot.
A. I do.
17West and RTDI also rely on the invited error doctrine to argue that this
court should decline to review the trial court’s decision to admit generalized
evidence of RTDS’s maintenance and staffing issues. Because we hold that
RTDS failed to preserve error under RAP 2.5(a) and ER 103(a)(1), we need not
decide whether the trial court’s decision also constituted invited error.
48
No. 80257-7-I/49
Q. I don’t know if you can show your boot. You have a boot on.
Why do you have a boot on your foot, as you understand it?
A. Yeah, on Mother’s Day, I had – my foot started swelling, so I
went into Same Day Care and they put me on some
antibiotics. They did an ultrasound and an X-ray.
Q. And so what do you understand is the problem with the foot
right now?
[RTDI COUNSEL]: I’m going to object, it calls for a
legal – or excuse me, a medical opinion.
THE COURT: Not her understanding, okay. Again,
this isn’t a medical opinion, it’s just her understanding, folks.
Go ahead and give your understanding.
A. I saw another doctor . . . , and he said that –
[RTDI COUNSEL]: Objection, calls for hearsay.
THE COURT: Just tell us what your understanding is.
A. My understanding, it’s called a deep tissue infection.
Q. And what do you understand is causing the deep tissue
infection?
[RTDI COUNSEL]: Objection, your Honor, that calls
for causation testimony.
THE COURT: Overruled. It’s just her understanding.
You can go ahead and tell them.
[WEST]: Okay.
THE COURT: And again, it’s not a medical opinion,
folks.
A. Not a clot, but there are little pockets that are remaining from
my surgery have traveled to my foot.
Q. You’re talking about from your hip?
A. From my right hip, have traveled to the foot.
On appeal, RTDS contends the trial court abused its discretion by allowing
West to testify as to her understanding as to the cause of her deep tissue
infection. We conclude that although the trial court erred by admitting West’s
testimony as to the cause of the infection, that error does not require reversal.
As an initial matter, West points out that only RTDI objected to her
testimony regarding the boot. West contends that because RTDS did not
separately object, it failed to preserve review of the trial court’s admission of her
testimony. But under RAP 2.5(a)(3), “[a] party may raise a claim of error which
49
No. 80257-7-I/50
was not raised by the party in the trial court if another party on the same side of
the case has raised the claim of error in the trial court.” Because RTDI and
RTDS were both defendants, RTDI’s objection preserved the issue of West’s
testimony for appeal even though RTDS did not separately object. 18
Turning to the merits of RTDS’s challenge to the admission of West’s
testimony, we review the trial court’s evidentiary decisions for abuse of
discretion. Gerlach v. Cove Apartments, LLC, 196 Wn.2d 111, 119, 471 P.3d
181 (2020). “A trial court abuses [its] discretion when its ruling is ‘manifestly
unreasonable or based upon untenable grounds or reasons.’ ” Bengtsson v.
Sunnyworld Int’l, Inc., 14 Wn. App. 2d 91, 99, 469 P.3d 339 (2020) (internal
quotation marks omitted) (quoting Veit v. Burlington N. Santa Fe Corp., 171
Wn.2d 88, 99, 249 P.3d 607 (2011)). “However, ‘[e]videntiary error is grounds for
reversal only if it results in prejudice.’ ” Id. (alteration in original) (quoting City of
Seattle v. Pearson, 192 Wn. App. 802, 817, 369 P.3d 194 (2016)). “ ‘An error is
prejudicial if within reasonable probabilities, had the error not occurred, the
outcome of the trial would have been materially affected.’ ” Id. (internal quotation
18 Admittedly, our Supreme Court came to the opposite conclusion in State
v. Davis, 141 Wn.2d 798, 10 P.3d 977 (2000), on which West relies. There, the
court held, “Appellant cannot rely upon the objection of a codefendant’s counsel
to preserve an evidentiary error on appeal.” Id. at 850. But RAP 2.5(a) was
amended effective September 1, 1994 to add the language relating to the
objection of a codefendant, and Davis relied on a pre-1994 case as authority for
its holding. Id. at 850 n.286 (citing State v. Latham, 35 Wn. App. 862, 866-67,
670 P.2d 689 (1984)); see also 2A KARL B. TEGLAND, W ASHINGTON PRACTICE:
RULES PRACTICE RAP 2.5 author’s cmts. at 264 (2014 ed.). Accordingly, and
given the plain language of RAP 2.5(a)(3), we conclude the 1994 amendment
was not brought to the Davis court’s attention, and we decline to follow Davis in
this regard.
50
No. 80257-7-I/51
marks omitted) (quoting Pearson, 192 Wn. App. at 817). “But improper
admission of evidence constitutes harmless error if the evidence is cumulative or
of only minor significance in reference to the evidence as a whole.” Hoskins v.
Reich, 142 Wn. App. 557, 570, 174 P.3d 1250 (2008).
Lay witnesses may not testify as to opinions or inferences that are “based
on scientific, technical, or other specialized knowledge within the scope of [ER]
702.” ER 701. Rather, if such testimony would be helpful to the jury, it must be
given by “a witness qualified as an expert by knowledge, skill, experience,
training, or education.” ER 702.
Whether the swelling in West’s foot was caused by a deep tissue infection
and whether that infection was caused by West’s most recent surgery are the
subject of specialized medical knowledge. And it is undisputed that West was
not a qualified medical expert. Furthermore, we are unpersuaded by West’s
contention that because her testimony was limited to her “personal
understanding,” it was a proper lay opinion. To accept this contention would be
to allow an end-run around ER 702 simply by asking a lay witness to preface her
testimony with “My understanding is . . . .” For these reasons, the trial court
abused its discretion by allowing West to testify as to the medical cause of her
foot swelling that necessitated a boot. 19
19At oral argument, West’s counsel relied on Brown v. Coca-Cola Bottling,
Inc., 54 Wn.2d 665, 344 P.2d 207 (1959) to argue that West’s testimony was
properly admitted. But in Brown, the only objection to the plaintiff’s testimony
was a hearsay objection, whereas here, RTDI objected on both hearsay and
medical causation (i.e., qualification) grounds. Accordingly, Brown is
unpersuasive.
51
No. 80257-7-I/52
Nevertheless, reversal is not required because West’s testimony linking
her boot to her surgery (and thus the collision) was cumulative of other testimony
linking her injuries from the collision to her ongoing ambulatory issues.
Specifically, Singh testified that despite multiple surgeries, the seroma on West’s
hip “just won’t go away.” He also testified that West’s ankle injuries were
permanent, that West’s prognosis was “poor,” that West’s hip seroma was
causing persistent inflammation and resulting weakness in her hips, and that in
light of West’s pre-existing multiple sclerosis, Singh had concerns about a future
of falls due to West’s weakened hip and unstable ankle. Singh also testified that
West had undergone physical therapy for her injuries and had not had a
successful outcome to date.
West’s husband testified that after West’s surgeries, her seroma “was
starting to grow again,” that it would cause West shooting pains and limit her
activities, and “it has continued to grow and grow and pains have gotten worse.”
He testified that West “can’t walk very fast” and “can’t walk any distance[, a]nd if
she does, she pays for it later in the day.” Matson testified, when asked about
West’s ability or inability to walk, “She walks very slow. She has to hold on to
someone or something.” She also testified that West walked with a limp that she
did not have before the collision, and that she cannot sit for very long because
“[s]he has to walk around and massage her bump.”
In light of the other evidence that West experienced and would continue to
experience ambulatory issues as a result of the September 2015 collision, we
conclude that West’s testimony was merely cumulative and did not result in
52
No. 80257-7-I/53
reversible prejudice.
RTDS disagrees and relies on Smith v. Ernst Hardware Co., 61 Wn.2d 75,
377 P.2d 258 (1962), for the proposition that reversal is required. In Smith, the
trial court, for reasons unclear from the opinion, had reason to believe that
improperly admitted testimony as to the cause of the plaintiff’s sinus condition
resulted in the jury increasing its verdict from $10,000 to $15,000. 61 Wn.2d at
76. Thus, the trial court ordered a new trial after the plaintiff refused to accept
judgment in the lower amount. Id. On appeal, our Supreme Court affirmed the
trial court’s decision, stating, “It would be sheer conjecture for this court to
attempt to determine what value the jury placed upon the sinus condition or to
conclude that the jury placed no value upon it at all.” Id. at 80. RTDS relies on
this statement to argue that reversal is warranted. But RTDS’s reliance is
misplaced because in Smith, the trial court, which was in the best position to
determine whether its error affected the verdict, had reason to believe it did.
Here, there was no such determination, and thus, Smith is factually
distinguishable and does not control. Cf. Clark v. Teng, 195 Wn. App. 482, 492,
380 P.3d 73 (2016) (observing that trial court is in best position to gauge
prejudicial impact on jury, and appellate court requires a “ ‘much stronger
showing of abuse of discretion to set aside an order granting a new trial than one
denying a new trial’ ” (quoting Teter v. Deck, 174 Wn.2d 207, 222, 274 P.3d 336(2012)).
In its reply brief, RTDI joins RTDS’s challenge to West’s testimony and
cites Thomas v. French, 99 Wn.2d 95, 659 P.2d 1097 (1983), for the proposition
53
No. 80257-7-I/54
that reversal is required. In Thomas, three former students sued the Spokane
School of Hair Design for breach of contract and CPA violations. 99 Wn.2d at
96-97. The former students claimed that they received little or no instruction
even though they were promised one hour of instruction per day, that the school
“was in a total state of confusion,” and that contrary to statutory requirements,
students were required to style hair for customers without supervision and before
they completed 400 hours of study. Id. at 97-98. At trial, the court admitted, over
the school’s hearsay objection, a letter of complaint that was addressed to the
Washington State director of licensing and signed by 18 students, two
instructors, and a manager. Id. at 101.
Our Supreme Court held the trial court erred by admitting the letter. Id. at
104. It also held that reversal was required:
The prejudicial value of the letter in the present case is evident on
its face. Without a limiting instruction, the jury was free to accept
the contents of the letter as true. While the contents of the letter
were somewhat cumulative of respondents’ testimony at trial, the
fact that several other persons signed the letter served to reinforce
the credibility of respondents’ statements. Such reinforcement of
their credibility may well have prejudiced the jury’s assessment of
respondents’ testimony in other respects, especially as to damages
for breach of contract and emotional distress. Because there is no
way to know what value the jury placed upon the improperly
admitted evidence, a new trial is necessary.
Id. at 105 (emphasis added).
In other words, the Thomas court expressly recognized that the
cumulative nature of the letter weighed against reversal but ultimately concluded
that reversal was required under the specific circumstances of that case—i.e.,
the lack of a limiting instruction and the fact that several other people signed the
54
No. 80257-7-I/55
letter, thus lending extra credibility to the three plaintiffs.
Here, as discussed, West’s testimony regarding her boot was largely
cumulative of testimony from other witnesses that she continued and would
continue to experience problems with ambulation, and unlike in Thomas, nothing
about the nature of West’s testimony lent extra credibility to the testimony of
other witnesses. This is particularly so given that the trial court expressly
reminded the jury that West’s testimony did not constitute a medical opinion, and
the defense medical expert, Rousso, called West’s causation testimony into
question by testifying, “I don’t know what in the world would cause” the swelling
that West described. Accordingly, Thomas is distinguishable and does not
require reversal.
Fees on Appeal
In a one sentence conclusion, West “asks this court to affirm and award
her attorney fees and costs for this appeal.” We deny West’s bald request for
fees. See Stiles v. Kearney, 168 Wn. App. 250, 267, 277 P.3d 9 (2012) (RAP
18.1 “requires more than a bald request for attorney fees on appeal.”). West’s
request for costs should be directed to a commissioner or court clerk as provided
in Title 14 RAP. We affirm.
WE CONCUR:
55