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lake coveProperty owners may be liable for injuries that result from a dangerous condition on their property.  The duty a property owner owes to a person on his or her property regarding a dangerous condition of the property often turns on the status of the injured person.  A landowner has different obligations to business invitees, licensees, and trespassers.  A Washington appeals court recently considered whether a landowner can be liable in a Washington premises liability case if the dangerous condition is actually on someone else’s property.

According to the appeals court’s opinion, an eight-year-old girl drowned while camping as part of a youth group.  The landowner allowed the group to camp on the property for free for several years.  The property was near a lake, and four counselors took 15 children swimming at a cove on the lake.  To get to the cove, the group walked from the campsite across property owned by the federal government.  The appeals court described the victim as a “non-swimmer.” According to the opinion, the counselors lost track of her while caring for another child.  A search and rescue team found her body the next day.

The victim’s estate sued the landowners, alleging they had a duty to warn the child about the dangerous conditions in the cove.  The trial court granted summary judgment in favor of the defendants, finding they did not have a duty to warn about conditions on property they did not own.  The estate appealed. Continue reading

marijuana dispensaryWashington criminal defense attorneys understand that people sometimes face drug charges because they were in a vehicle or a home where drugs were present.  This can be particularly true of the owner or resident of the property where the drugs were found.  Although a landlord generally cannot be held liable for a tenant’s criminal actions just because he or she failed to evict the tenant, a Washington appeals court recently upheld a conviction of a woman whose boyfriend allegedly had a marijuana grow operation in her home.

According to the appeals court’s opinion, the defendant lived in a home owned by her stepmother with no formal lease agreement.  She shared the home with her children, her boyfriend, and her boyfriend’s brother.  The police executed a search warrant and found 27 marijuana plants in the back yard, marijuana in the kitchen, and drying marijuana and glass pipes in the basement.  The defendant was charged with manufacturing marijuana.  She testified that the marijuana was her boyfriend’s and denied any involvement with the marijuana grow.  She testified she had asked him to stop, but he did not do so.  She admitted it was her choice to allow her boyfriend to remain at the residence.

The jury instruction on the definition of manufacture stated it is “the direct or indirect production, preparation, propagation or processing of any controlled substance.”  The defendant’s attorney objected to the instruction, contending that it was vague and misleading.  The state argued the defendant acted as a de facto landlord and was therefore responsible for providing a location for the grow operation.  The state argued the defendant had dominion and control over the property and therefore had direct or indirect involvement in manufacturing marijuana. The jury asked the court to define “indirect” during its deliberations, and the court referred them to the jury instructions.  The jury convicted the defendant.

custody disputeWhen a parent does not exercise his or her visitation time, the child is obviously affected, but so is the other parent.  In addition to any scheduling issues that may result, there are also financial effects on the other parent.  A parent who completely stops visitation may reduce his or her own child-related expenses while increasing those of the other parent.  A Washington appeals court recently held that, in a Washington family law case, a court may deviate from the standard calculation to put a greater child support obligation on a parent who abdicates visitation.

Facts and History of the Case

In this case, the parties had been divorced since 2004. Under a modified parenting plan, the father had residential time with the two children on Wednesday evenings, every other weekend, and half of holidays, school vacations, and other special occasions. The mother sought an increase in child support above the standard calculation in 2013.  She argued she had an increased financial burden because the father had abdicated his residential time with the children.  The trial court found the father had voluntarily stopped having contact with the children in late 2010.  The trial court found it was not authorized to deviate from the standard calculation due to the father’s lack of residential time because the combined monthly income of the parties was less than $12,000.  On appeal, the appeals court found the trial court did have the authority to deviate from the standard calculation where a parent lessens his or her financial responsibility by abdicating visitation.  The appeals court sent the case back to the trial court to make appropriate findings and determine the appropriate deviation.

car accidentA defendant in a Washington personal injury case may try to limit damages by alleging the plaintiff failed to mitigate damages.  A defendant seeking a failure to mitigate jury instruction must show that the plaintiff acted unreasonably in deciding on treatment when there were alternative options.  The defendant must show through expert testimony that the alternative treatment would more likely than not improve the plaintiff’s condition.  A defendant recently challenged a court’s decision not to instruct the jury on failure to mitigate in an automobile collision case.

According to the appeal court’s opinion, the defendant rear-ended the plaintiff’s vehicle.  The plaintiff went to a chiropractor who found she had a ligament injury as a result of the accident.  The chiropractor also found the injury was permanent.

The plaintiff filed suit and the defendant admitted liability, leaving only damages at issue for trial.  According to the opinion, the plaintiff worked as a licensed practical nurse.  She testified she had talked with her colleagues about her treatment options.  She did not want to take medications that would interfere with her work, or to have surgery or injections.  She testified the chiropractic treatments helped manage her pain.  She also testified that immobilization was no longer recommended and that no one she talked to recommended it to her.

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behind barsViolation of a Washington no-contact order is generally a gross misdemeanor.  In some circumstances, however, it can be elevated to a class C felony if the violation includes an assault.  Defense of property can be an affirmative defense to assault.  The Washington Supreme Court has recently reviewed a case in which the defendant sought a jury instruction on defense of property as an affirmative defense to felony violation of a no-contact order.

According to the Court’s opinion, the defendant checked his car after thinking he saw someone near it.  His phone and other items were missing.  The defendant saw his former girlfriend walking down the street.  There was a no-contact order prohibiting the defendant from coming near or having any contact with her at the time.  He followed her and tried to take her purse to retrieve his phone.   A witness testified to seeing a man hit a woman, then lift her off the ground and slam her back down.  According to the appeal court’s opinion, the defendant denied hitting her.

The defendant was charged with felony violation of a no-contact order predicated on assault.  He requested a jury instruction on defense of property.  The judge, however, found he “was acting offensively, not defensively…” and was not entitled to the instruction. The jury convicted the defendant, and he appealed, arguing he had been improperly denied the jury instruction.  The appeals court affirmed, finding the defendant was not entitled to the defense because he used force to try to recover the property, not prevent its theft.

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courtroomWhen a court sentences a defendant to community custody in a Washington criminal case, there are some conditions the court must impose and others that the court may impose in the court’s discretion.  These conditions are set forth in RCW 9.94A.703.  Pursuant to the statute, the court may require an offender to “[p]articipate in crime-related treatment or counseling services” or “in rehabilitative programs” that are reasonably related to the offense, the risk of reoffending, or community safety.  Additionally, a court may order an offender convicted of a domestic violence crime to participate in a domestic violence perpetrator program, if either the offender or the victim have a minor child.

In a recent case, a defendant challenged the imposition of domestic violence treatment.  The defendant was convicted of second degree assault, unlawful imprisonment, and felony harassment of his former girlfriend.  The jury found the defendant and the victim were members of the same family or household.

The state asked the trial court to require the defendant to complete domestic violence treatment.  He objected.  The defendant argued the statute only authorized the court to require domestic violence treatment if the offender or victim had a minor child.  The trial court found it did have the authority to require the treatment and did so. The defendant appealed.

financesIn a Washington divorce, the court must characterize the assets as separate or community property.  While categorizing some types of property are fairly straightforward, others can be more complicated.  Employee stock options, for example, are characterized based on when they were acquired.  The court must look not only at when the stock options were granted, but also when they vest and what they were intended to compensate.

If the stock options are vested, they are acquired when granted.  However, the court must apply the “time rule” to unvested stock options.  The time rule is a formula that allocates the stock options according to the services performed before and after separation.  The court must first determine if the employee received the stock options as compensation for past, present, or future services.  Unvested stock options granted for present services during the marriage while the spouses are living together are acquired when they are granted.  If the unvested stock options compensate for future services, they are acquired as they vest.  Once it makes this determination, the court then must apply the time rule to the first stock option to vest after the separation date.

In a recent case, the wife challenged the characterization of the husband’s employee stock awards as separate property and the husband challenged the split distribution of future stock awards. The couple married in 1994.  They moved to Seattle in 2013 for the husband’s job.  At the time of the trial, he was earning $185,000 in base salary, plus variable annual bonuses.

car accidentAn employer may be held vicariously liable for the negligence of its employees in a Washington automobile accident case when the employees are acting within the scope of their employment.  An employee is acting within the scope of employment when engaged in the performance of duties required or directed by the employer or engaged in the furtherance of the employer’s interest.  An employee is not acting within the scope of employment when engaged in conduct involving a personal objective that is not related to the employer’s business.  The issue of vicarious liability was recently before a Washington appeals court.

The defendant driver failed to stop in time to avoid rear-ending the plaintiff’s stopped vehicle.  The defendant driver works as a regional manager for the defendant employer.  He works from his home and frequently travels for his job.  The defendant employer provides him with a monthly vehicle allowance for the cost of his vehicle and insurance.  The defendant employer also reimburses 80% of his vehicle maintenance and operation expenses.  The defendant driver did not tell his employer about the accident.

The plaintiffs sued the defendant driver and he admitted liability for the accident.  The defendant employer was subsequently added to the lawsuit, and the plaintiffs ultimately added a vicarious liability claim against it. The defendant driver testified in his deposition that he was driving home after working at the time of the accident.

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criminal lawA misdemeanor Washington DUI can be elevated to a felony under some circumstances, including a prior conviction for “[v]ehicular assault while under the influence of intoxicating liquor or any drug.”  To elevate a charge, the state must prove the existence of the conviction and that it relates to the defendant.  Vehicular assault is an alternative means offense, with three alternatives, but not all of the alternatives qualify for the enhancement.  A Washington appeals court recently considered whether the state had proved a defendant’s prior conviction for vehicular assault qualified for the enhancement.

The defendant was charged with a DUI in 2016.  The state alleged the defendant’s prior conviction for vehicular assault while under the influence made the current offense a felony.  After finding the defendant had committed DUI, the jury was then asked to determine whether the defendant had a qualifying prior vehicular assault conviction. The state introduced the court records from the previous conviction as well as testimony from a police officer.  The jury found the defendant had a prior vehicular assault while under the influence of alcohol conviction.

The defendant appealed, arguing the state did not produce sufficient evidence to elevate the offense to a felony.  He argued the evidence only established a generic conviction for vehicular assault, rather than showing that he was convicted of vehicular assault while under the influence pursuant to RCW 46.61.522(1)(b).

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Legal News GavelCourts have broad discretion in ordering postsecondary educational support in Washington family law cases.  Washington law sets out a number of factors courts should consider, including the parent’s expectations for the child, the child’s aptitude, the nature of the education sought, and the parents’ level of education. RCW 26.19.090(2).  If the court considers the factors, it does not abuse its discretion in awarding postsecondary educational support.

A Washington appeals court recently considered whether a trial court abused its discretion in modifying an order for postsecondary educational support.  The father had obtained modification of child support through default after the mother did not appear or respond to his petition.  The modified child support order required the mother to pay for postsecondary educational support and 52% of the son’s uncovered medical expenses.  She was also required to maintain a life insurance policy.  The order allowed either parent to petition for modification as long as the son was enrolled full time in school until the age of 24.

The mother subsequently moved to reduce her child support obligation.  The husband moved to dismiss, arguing that there was not a substantial change in circumstances to justify the modification.  The appeals court noted, however, that the default order had provided for modification.  The court considered the financial evidence and how the parties expected their son’s college to be funded.  The court lowered the postsecondary support payment and eliminated the obligation to pay uncovered medical expenses and maintain life insurance.  The court also ordered all future postsecondary support payments be made to the son.  The father appealed.

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