Seattle Attorneys Blog

Store May Be Liable for Parking Lot Accident in Washington

September 21, 2020 | by Blair & Kim, PLLC

When a person is seriously injured in a Washington car accident, it is important to identify all potential avenues of recovery to help fully compensate the victim for their loss. When an accident occurs in a parking lot or other private property, the property owner or business proprietor may have some liability for the accident, depending upon the facts of the case.

In a recent case, a person injured in a parking lot sued the owner of the store she was intending to enter. The woman was seriously injured when a vehicle hit her while she was using a crosswalk to go to the entrance of a store. The vehicle that hit her had to reverse into the crosswalk from the diagonal parking spot where it was parked to go north out of the parking lot. The woman and her husband sued the driver and the owner of the shopping center. They later added additional defendants, including the owner of the store.

The trial court found the store owner did not owe a duty of care to the plaintiffs and granted summary judgment to the store owner. The plaintiffs appealed and argued the store owed a duty of reasonable care because it was in control of the parking lot. The store owner argued the property owner kept sole control over the common areas under the lease. The appeals court found the property owner was the possessor of the common areas and had responsibility for maintaining them under the lease. The appeals court rejected the plaintiffs’ argument the store owner was liable as a possessor of the common area.

No Washington State Constitution Protection Against Use of Recorded Jail Calls in Criminal Case

September 14, 2020 | by Blair & Kim, PLLC

Article I, section 7, of the Washington State Constitution protects individuals from warrantless searches into their private affairs. Courts must consider what type of information may be discovered through the government’s action and how the interest being asserted has been treated in the past. A defendant in a Washington criminal case recently challenged his conviction on the grounds the state had violated his right to be free from intrusion into his private affairs.

The defendant was arrested for violating a domestic violence no contact order prohibiting him from contacting his wife. The order had been modified to allow the parties to communicate by phone, text, and email, but the detective told him the court would probably issue a new no contact order that would not allow phone contact. The trial court did so the next day.

There is a sign by the jail phone informing inmates calls “are recorded and subject to monitoring.” There is also an automated message that warns the caller and recipient that the “call is subject to recording and monitoring.” The detective searched for the defendant’s calls and found he had called his wife from the jail phone on four different days. The state charged him with four counts of felony domestic violence court order violation.

Federal Court Denies Injunction Against Title IX Final Rule

September 8, 2020 | by Blair & Kim, PLLC

A federal court has denied a preliminary injunction to stop or delay the implementation of the new Title IX regulations. The court found the plaintiffs had not established that they are likely to succeed on their claims or to suffer substantial irreparable harm.

The plaintiffs argued the K-12 grievance process exceeded the Department’s authority and is arbitrary and capricious. The court noted that the Final Rule’s requirements may not be the best way to handle Title IX in K-12 schools, but did not find that the plaintiffs would be likely to show it was arbitrary and capricious. The Final Rule includes different requirements for K-12 than for post-secondary schools. The court could not substitute its own judgment for the Department’s when the Department had considered the data and there was “a rational connection between the facts found and the choice made.”

The plaintiffs also argued the Department exceeded its authority by penalizing schools for investigating or punishing conduct that did not fit within the Final Rule’s definition of sexual harassment as Title IX violations. The court found they had “not squarely presented this argument.” The court also noted that the challenged portions of the Final Rule seemed to be rooted in the authority the Department was granted by Title IX. Finally, the Department indicated that it did not intend to withhold funding from a school for mischaracterizing a disciplinary proceeding as a Title IX proceeding, but would instead seek to clarify the nature of the proceeding for the parties. The plaintiffs therefore had not shown that they were likely to succeed on their claim the Department exceeded its authority by penalizing schools that took a broader view of sexual harassment generally, or even in the specific case of the mandatory dismissal of complaints alleging harassment that did not meet the Title IX definition.

Washington Appeals Court Vacates Conviction Based on Search of Sleeping Man

September 8, 2020 | by Blair & Kim, PLLC

Washington drug cases often turn on the legality of the search that found the evidence. Both the federal and Washington state constitutions provide protection from unreasonable searches and seizures. Generally, searches must be conducted under a lawful warrant, unless an exception applies. A man recently successfully challenged his conviction on the grounds the trial court erred in applying the Terry and community care taking exceptions to the search that found the evidence used against him.

A Starbucks employee called 911 for assistance removing a sleeping person from the store. According to the court’s opinion, the officer tried to wake the defendant, but he was unresponsive. The officer started to suspect the defendant was under the influence of drugs. He noticed a metal utensil partially sticking out of the defendant’s pocket. He was concerned it was a knife, needle, or other sharp object. He took it out of the defendant’s pocket and found it was a cook spoon with a dark brown residue and burn marks. The officer determined he had probable cause for an arrest and kept searching, finding drugs and other drug paraphernalia.

The officer then performed a “hard sternum rub” to wake the defendant. He told the defendant he was under arrest, handcuffed him, and took him to an aid car.

Washington Court Denies Grandparent Visitation

August 20, 2020 | by Blair & Kim, PLLC

Parents have a liberty interest in their fundamental right to autonomy in raising their children. Courts must therefore give weight to a parent’s decision to deny visitation to the child’s grandparents. A court can only order Washington grandparent visitation over the objection of a fit parent if the grandparent shows that denying visitation would be harmful to the child. A grandmother and stepgrandfather recently challenged a court’s denial of their petition for visitation.

In July 2015, the mother moved with the children to Washington where her mother and stepfather lived from Las Vegas. The mother moved with the children to Oregon the following November. The father filed for divorce in June 2016. The mother brought the children back to Washington to stay with her mother and stepfather. She died of suicide that October.

The father did not immediately take the children. According to the appeals court’s opinion, he said he needed help taking care of things after the mother’s death. He also said the children were in school in Walla Walla, and he was focused on getting transferred to the Air Force Base in Spokane.

Washington Appeals Court Overturns Teen’s Harassment Case Based on Text Messages

August 13, 2020 | by Blair & Kim, PLLC

A charge of harassment can punish speech, raising First Amendment issues. When the state charges a person with harassment under Washington criminal law, it has to prove the defendant’s statements were not protected speech. One way to do this is to show that the words constituted a “true threat.” A true threat is not hyperbole or a joke, but a serious threat. Courts do not consider what the speaker intended. Instead, they look at whether a reasonable person would foresee the statement being interpreted as intent to physically harm someone. The court considers this question in the context of the actual intended audience. Courts may consider whether there was a specific plan to harm, the tone of the message, and whether it was repeated to multiple audiences.

In a recent case, a 17-year-old defendant successfully challenged her adjudication of guilt on a harassment charge. During an argument with her mother, the defendant texted her friends. In one text, she stated “Bet imma get her killed [. . .]” She texted another friend, “Imma [expletive] kill this [expletive].”

The mother subsequently looked in the phone and found the texts. She also found violent comments the defendant made about another person. The mother changed the locks on the house and slept with a knife. She showed screen shots of the messages to the police.

Individualized Inquiry Required before Shackling Defendant at Pre-Trial Proceedings in Washington

August 6, 2020 | by Blair & Kim, PLLC

Washington criminal case law has established that defendants are entitled to be free of shackles at trial, unless there are extraordinary circumstances. Restraints may affect a number of constitutional rights, including the presumption of innocence, the right to testify, and the right to consult with counsel. Trial courts do, however, have discretion in deciding on courtroom security measures, including restraints, as long as they base that discretion on facts in the record.

In a recent case, a defendant challenged his conviction after he was shackled in pretrial appearances and required to wear a leg brace at his jury trial. At his first court appearance, the defendant was shackled in handcuffs and a belly chain. His attorney moved for removal of the shackles, arguing they violated the defendant’s due process rights under the Fifth Amendment and the Washington State Constitution.

The trial court held a consolidated hearing on all motions related to restraint and removal before it. The court granted the motions “to the extent the court agrees there are less restrictive means of furthering the compelling government interest of courtroom security.” The court proposed videoconferencing as an alternative, but acknowledged it would not be implemented for over a year. The court indicated its adoption of the sheriff’s policies would remain in effect until videoconferencing was implemented. The policy required leg braces at trials.

Sixth Circuit Holds Student Can Waive Cross-Examination in Title IX Hearing

July 28, 2020 | by Blair & Kim, PLLC

The new Title IX regulations will afford students accused of sexual harassment or sexual misconduct some due process protections. Those regulations are being challenged, and even when they take effect, schools may not fully follow them. Students in Washington State who are not aware of their rights may waive them or even be pressured into waiving them.

In a recent unpublished case, the Sixth Circuit held that an accused student had waived his due process rights. Following an investigation for alleged sexual misconduct, the school’s policy allowed for two options for resolution, an administrative hearing or a board hearing. The administrative hearing was a more informal process in which an adjudicator met with each party separately. The adjudicator would then determine culpability and any punishment based on those meetings and the investigatory materials. The administrative hearing process did not provide for the parties to present evidence or cross-examine witnesses. The more formal board hearing involved an actual hearing before a three member panel, where witnesses could testify and a type of cross-examination. Both parties would be allowed to question witnesses and submit questions that they wanted to ask each other to the panel. The panel would then determine culpability and punishment, if appropriate.

In this case, both parties indicated in their signed statements that they preferred an administrative hearing. The University therefore moved forward with an administrative hearing. The hearing officer found the plaintiff was “responsible for non-consensual sexual intercourse under the university sexual misconduct policy” and ordered a two year suspension. The hearing officer also barred the plaintiff from campus during his suspension and from living in University housing after the suspension.

Washington Court Does Not Allow Mother to Relocate with the Child

July 21, 2020 | by Blair & Kim, PLLC

When parents separate, there often comes a time when one of them wants to move. Relocation can cause issues with co-parenting. Under Washington family law, when a custodial parent wants to move with the child, there is a rebuttable presumption the move will be allowed. The other parent may rebut the presumption by showing the benefit of the move is outweighed by its detrimental effect, based on several factors. Those factors include: the child’s relationship with each parent and other significant people in their life; any agreement between the parties; which relationship it would be more detrimental to disrupt; whether there are restrictions under RCW 26.09.191; the reasons for each parent’s position and whether they are requesting or opposing the relocation in good faith; how the relocation would affect the child’s development; the resources and opportunities available in the current and proposed locations; ways to continue the child’s relationship and access to the other parent; alternatives to relocation; and the financial impact and logistics of relocating or not relocating.

In a recent case, a mother challenged the parenting plan entered by the court. The couple had lived together with the father’s mother and the mother and child continued to live there after they separated. The mother subsequently petitioned for a parenting plan and asked to move from Spokane to Medical Lake, where her boyfriend lived.

The trial court considered the factors in RCW 26.09.187. Under Washington family law, a court must consider certain factors when determining the parenting plan. These factors include the child’s relationship with each parent, past and potential future parenting performance, the child’s needs and emotional development, the child’s relationship with others, his environment, and his activities, the wishes of the parents and of the child if he is mature enough to express a reason and an independent preference, and the parents’ employment schedules. RCW 26.09.187.

Washington Appeals Court Reverses Organized Retail Theft Conviction

July 14, 2020 | by Blair & Kim, PLLC

In a Washington criminal case, the state must prove all of the elements of the crime. In a recent case, a defendant challenged her conviction for second degree organized retail theft, arguing that the state had not shown that she obtained goods from a “mercantile establishment” when the alleged crime involved online catalogs.

Second degree organized retail theft occurs when the defendant steals property worth a total of at least $750 from one or more “mercantile establishments.” RCW 91.56.350.

According to the appeals court’s opinion, the defendant used her neighbors’ names and accounts to place three orders from online catalogs. One of the other residents reported the incident to the complex office and the police. The defendant was charged with second degree organized retail theft, two counts of second degree possession of stolen property, and three counts of first degree identity theft.