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Negligent infliction of emotional distress is a cause of action available when a family member is at the scene of their loved one’s accident at the time of the accident or shortly thereafter and witnesses their injuries at the scene before there is a material change in the circumstances.  In March, Division Three of the Washington Court of Appeals found that a woman could recover damages on a negligent infliction of emotional distress claim, despite knowing about the accident prior to arriving on the scene.  Recently, Division One reviewed a case in which a mother knew her son had been killed in the accident before she arrived on the scene.

ambulanceThe plaintiff’s 17-year-old son died from mechanical asphyxiation as a passenger in an automobile accident.  The plaintiff lived near the scene of the accident. One of her son’s friends stopped by her home and told her to call her son because there had been an accident.  The plaintiff testified that she received no answer when she tried to call.  The driver’s father subsequently came to the plaintiff’s house and informed her there had been an accident, and her son had not survived.  The plaintiff and her husband then drove to the accident scene.

They arrived at the scene about 20 minutes after the accident.  The area was surrounded by emergency vehicles, and the scene was blocked off.  The plaintiff’s son was lying on the side of the road, covered by a sheet.

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A judgment or judgment lien for accrued child support in Washington remains in force for 10 years after the youngest child named in the order turns 18, pursuant to RCW 4.56.210.  The statute therefore generally makes a child support judgment unenforceable after the youngest child turns 28.  Washington courts have referred to this statute as a “nonclaim statute.”

calendarRCW 74.20A.220 allows a parent to extend or waive “any statute which may bar or impair the collection of the debt….”  A father recently challenged the applicability of his waiver to RCW 4.56.210 on the ground that it is a nonclaim statute rather than a statute of limitations.

The father was ordered to pay monthly child support when his marriage was dissolved.  He made the first child support payment nine years after the order was entered.  He subsequently signed a waiver eliminating the time limit for collecting the approximately $50,000 he owed in unpaid child support.  The “Waiver of the Statute of Limitations Defense” stated it applied to “[a]ny statute of limitations defense created by RCW 4.16.020, RCW 4.56.210, or RCW 6.17.020” and any other statute “that limits the time DCS can collect [the defendant’s] support debt.”  The waiver further stated it allowed DCS to collect until the defendant had paid the support debt in full.

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Domestic violence violation of a protection order is generally a gross misdemeanor under Washington law, but it can be a class C felony if a violation of the order is also an assault or if the defendant has at least two prior convictions for violating a protection order.  RCW 26.50.110.  The Washington Supreme Court considered whether a jury has to reach a unanimous decision as to which of these alternatives forms the basis of the verdict in a recent case.

surveillance cameraAt the time of the incident, there was a no-contact order prohibiting the defendant from contacting his former partner.  When the defendant’s former partner learned that he was at a nearby bus, she went there to address some items she had to return to him.  She testified that the defendant got angry and struck her twice.  She then ran to a gas station, and the defendant followed her.  The store clerk testified that the defendant followed the woman around the store for several minutes.  The defendant left the store when the clerk called the police.

The jury was instructed that there were five elements that must be proved beyond a reasonable doubt.  One of those elements was that either the defendant’s conduct was an assault, or the defendant had been convicted of violating a court order twice previously.  The court instructed that these were alternative elements, and the jury did not have to be unanimous as to which of the two alternatives had been proved, as long as each juror found that one of the alternatives was proved.  The defendant did not object to the instruction or to the prosecutor’s discussion of the instruction in the closing argument.

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Under Washington law, “unlawful harassment” is “a knowing and willful course of conduct” directed toward a particular person that “seriously alarms, annoys, harasses, or is detrimental” to that person.  To be unlawful harassment, the conduct cannot serve a legitimate or lawful purpose.  Furthermore, the course of conduct must be the type of conduct that would cause a reasonable person substantial emotional distress, and it must actually cause distress to the person seeking the protection order.  RCW 10.14.020. Although communications are included in the “course of conduct,” constitutionally protected speech is not.

Trail SignA Washington appeals court considered whether a woman’s actions were protected by the First Amendment in a recent unpublished case.  The woman appealed a civil anti-harassment protection order on the grounds that it was based on constitutionally protected speech.  She also argued that the oral findings of the trial court had not been supported by substantial evidence.

In his testimony in support of the petition, the appellant’s former romantic partner testified the appellant had contacted his female acquaintance and pointed her to a website containing a post, partly written by the appellant, that described his alleged history of affairs. He also testified that she called him an “impulsive alcoholic, with a violent streak.”

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Washington encourages landowners to open their property up to recreational use by the public by providing immunity to the landowners. The statute provides that a landowner who does not charge any kind of fee to the public is not liable for “unintentional injuries” to members of the public using the property for recreational purposes.  RCW 4.24.210.  It is clear that injuries on land open exclusively for recreational purposes may fall under the statute and that injuries on land open exclusively for other purposes do not.  It is less clear, however, whether immunity can apply when the injury occurs on land that is open to the public for mixed use.

bicycleA Washington appeals court addressed this issue in a recent case.  The plaintiff was injured while riding her bicycle on a trail.  She approached a lawn mower, operated by an employee of the county, and attempted to pass it.  She raised her hand to shield her eyes from the debris from the lawn mower.  In her deposition, she testified that she tried to veer to the left to get off the trail and clipped the bicycle being ridden by her niece.  The plaintiff fell and was injured.

The county’s website described the trail as “a popular commuter route and recreational destination for bicyclists….”  Likewise, the county’s Regional Trails Plan provided that the regional trails system would be used “for recreation and transportation….”

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Drug possession cases hinge on evidence of the drugs themselves.  Under the exclusionary rule, if drug evidence resulted from an unlawful search or seizure, it must be excluded.  It is therefore common in drug cases for the defendant to move for the evidence to be suppressed on the ground it resulted from an unlawful search or seizure.  In a recent unpublished case, a Washington appeals court considered whether evidence of drugs in a vehicle should have been suppressed.

PoliceThe defendant pulled his vehicle over to the side of the road after a police sergeant pulled behind him.  When the sergeant turned around and drove back toward him, the defendant moved forward, passing the sergeant.  The sergeant turned around again.  The defendant again pulled over and put on his flashers.  The sergeant pulled over behind him.

The defendant told the sergeant he thought he had a flat, but the sergeant did not think the tire looked flat.  The sergeant then asked the defendant if he had a driver’s license, and the defendant showed him a Colorado license.  The sergeant thought the defendant seemed unsure and nervous when asked if the license was valid, so he asked if it was suspended.  The defendant said it could be suspended because of unpaid child support.  A dispatcher confirmed that it was suspended in Washington and Colorado.

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In any divorce, it is important for the parties to identify all of the assets they want to be considered and divided.  While all of the property is before the court for distribution in a divorce, the court can only distribute those assets of which it is aware.  If the parties fail to follow the appropriate procedures to timely identify property, the court may exclude evidence of that property.

woodA Washington appeals court recently reviewed a case in which the trial court had excluded certain property that had not been included in the property worksheets the parties submitted before trial.

The parties each submitted property worksheets with their trial briefs before trial.  At trial, the wife testified about property that was not included on the property worksheets.  The husband objected to this testimony, but the objections were generally overruled.

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In cases involving driving under the influence, the state often relies on test results to show that the defendant was intoxicated.  However, the prosecutor may also point to the defendant’s behavior as evidence of intoxication.  A Washington appeals court recently considered whether a prosecutor committed misconduct when she referenced negative statements the defendant made about the other driver and her passenger after the accident in a recent unpublished case.

country-roadsThe defendant appealed his convictions for two counts of vehicular assault.  According to the appeals court’s opinion, the defendant had three or four drinks on the evening of the collision.  His blood alcohol level after the accident was .12 grams per 100 milliliters. A witness had seen the defendant’s truck swerve across the yellow line several times.  The witness saw the defendant drive into the opposite lane toward an oncoming car.  The two vehicles collided head-on.

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Often, a person charged with driving while under the influence will face additional, related charges.  Attempting to elude police is one such charge.  Sometimes, a person may feel they are justified in not stopping for the police officer, but a necessity defense is very difficult to prove in this type of case.

stoplightIn a recent unpublished case, a Washington appeals court considered a defendant’s claim of necessity based on her statement that she did not stop because she was fleeing a person who had threatened her.

According to the opinion, the defendant ran a red light in front of an officer and failed to stop when he engaged the emergency lights.  The defendant stopped in front of a residence and tried to go inside.  The officer tackled her to stop her and subsequently arrested her for DUI.

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Often, the family home is one of the more difficult assets to address in a divorce.  Even if both parties agree to sell the home, the process can still be difficult.  In a recent unpublished case, a Washington appeals court determined whether the sale of a home was “imminent,” as required by the divorce decree, or whether the husband was required to pay the wife $15,000 because it was not imminent.

for sale signThe marriage was dissolved by a degree of dissolution that awarded the home to the husband.  The wife was required to execute and deliver a quit claim deed.  The trial court subtracted $30,000 from the net value of the home for the closing costs and used that reduced value to determine the property award.  The court subtracted the closing costs because the husband assured the court he intended to sell the home imminently.  The decree included a provision that required him to pay the wife $15,000 if he did not sell the house “imminently,” which was defined as within nine months from the entry of the decree. February 18, 2016 was nine months from the entry of the decree.

A purchase and sale agreement was signed on February 11, 2016, although the purchase was subject to contingencies.  The buyers then waived all contingencies on February 17.  The wife moved the court for an order enforcing the decree and awarding her the $15,000 on March 10.  The sale of the home then closed on March 15.

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