Personal Injury

Vicarious Liability in Washington Automobile Accidents

August 31, 2018 | by Blair & Kim, PLLC

An 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.

Washington Survivorship and Wrongful Death Actions

July 27, 2018 | by Blair & Kim, PLLC

When a person is killed due to someone else’s negligence, their loved ones may be able to pursue Washington wrongful death and survivorship claims. Survivorship claims and wrongful death claims are similar, but not identical. A Washington appeals court recently considered whether a judgment in a survivorship claim precluded a wrongful death action.

The deceased sued several defendants after she was diagnosed with mesothelioma. She settled with all but one of the defendants during trial, releasing all claims arising out of her personal injury claim and any future wrongful death claim. The remaining claim was converted to a survivorship claim after she died during trial. The jury returned a verdict in favor of the estate, but the court reduced it on a motion from the defendant. The court also allocated 20% of the settlement proceeds to future wrongful death claims. The court also reduced the judgment by 80% to offset the proceeds from the settling defendants. Both parties appealed and the appeals court affirmed the verdict, but reversed the reduction.

The estate filed a wrongful death action against several defendants. The trial court dismissed, finding the claims had been extinguished by the judgment in the survivorship case. The estate appealed, arguing a wrongful death claim is a new and distinct cause of action.

Expert Witnesses in Washington Premises Liability Cases

January 5, 2018 | by Blair & Kim, PLLC

Personal injury cases often hinge on why and how the injury occurred. Although the victim and other eyewitnesses can testify to what happened, Washington personal injury attorneys know that an expert is often needed to explain how and why the incident happened. An expert may only testify within the area of his or her qualifications, however. Furthermore, the expert’s opinions must have an adequate foundation. The court has discretion in determining whether an expert may testify.

A Washington appeals court recently considered whether an expert was qualified in the area of his opinions and whether he laid an adequate foundation for those opinions. The plaintiff was injured when the chair in which he was sitting on the deck of the defendant pizza restaurant broke where the arm attached to the seat.

The assistant manager on duty at the time examined the arms to ensure they were stable when setting up the deck. He had only identified two chairs as being unacceptable in the past 11 years. He was not aware of any other incidents when chairs at the restaurant broke.

Washington Escalator Owners and Operators Are Common Carriers

December 26, 2017 | by Blair & Kim, PLLC

Many escalators are used each day, and they generally function as expected. They require appropriate maintenance and service to do so, however. When they are riding an escalator, people can be seriously injured. Washington premises liability attorneys know that an owner that fails to properly maintain escalator equipment may be liable for the resulting injuries. In fact, in Washington, the owner or operator of an escalator has the heightened duty of care of a common carrier. A Washington appeals court recently considered a case in which the court dismissed a personal injury case involving an escalator.

The plaintiffs were injured when an escalator step jammed. The escalator was in a mall and right outside a department store. Witnesses stated they heard a screeching noise. The steps then began piling up, and the escalator collapsed on itself. The escalator’s fail-safe mechanisms did not activate to stop the escalator.

The plaintiffs sued the department store owner and the owners of the mall and escalator. The department store contracted with an elevator maintenance company for service and maintenance of the escalator.

No Fault Apportioned to Washington Parent for Negligent Supervision in Child’s Personal Injury Case

July 12, 2017 | by Blair & Kim, PLLC

The fact-finder in a Washington personal injury case must allocate fault among each of the entities that were at fault for the plaintiff’s injuries, including entities with immunity, except those immune under the workers’ compensation act. Washington law recognizes the doctrine of parental immunity for claims of negligent supervision. The Washington Supreme Court recently reviewed a case addressing whether a child’s compensation from the driver who struck him could be reduced due to his father’s negligent supervision of him.

In this case, the father’s girlfriend at the time struck his two-year-old child with her vehicle in the driveway of the father’s home. A lawsuit was filed on behalf of the injured child against the father’s girlfriend. She asserted an affirmative defense that the child’s father was fully or partially responsible for the child’s injuries, based on negligent supervision. The plaintiff moved for summary judgment, arguing the law did not allow apportionment of fault to the father on these grounds. The court denied summary judgment, and the plaintiff amended the complaint to add the father as a defendant. The amended complaint stated that the other defendant contended the father was concurrently negligent or engaged in willful misconduct that proximately caused the injuries. The father did not make an appearance as a party, and the court entered a default order against him. The jury was instructed to consider whether the plaintiff had met the burden of proving the girlfriend was negligent and had proximately caused the injuries, and whether the defendant had met her burden of proving her affirmative defense that the father was also negligent.

The jury found both the girlfriend and the father were negligent and proximately caused the injuries. The jury attributed 50% of the damages to each of them. The court rejected the plaintiff’s request for a joint and several judgment entered against both the father and the girlfriend for the entire amount of damages and entered only a judgment against the girlfriend for 50% of the damages. The Court of Appeals affirmed the trial court, and the Supreme Court of Washington granted review.

Washington Recreational Immunity Statute Does Not Apply to Mixed-Use Property

May 22, 2017 | by Blair & Kim, PLLC

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.

A 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….”

Washington Bystander Negligent Infliction of Emotional Distress Claim

March 27, 2017 | by Blair & Kim, PLLC

Under Washington law, a family member who is present at the scene of an accident in which a loved one was physically injured or arrives shortly thereafter may have a claim for negligent infliction of emotional distress (NIED). A Washington appeals court recently reviewed a case to determine whether a plaintiff could bring an NIED claim when she knew about the accident before arriving at the scene.

The plaintiff’s husband died from injuries sustained in a motorcycle accident caused by an unknown driver. Her husband was riding motorcycles with some friends. A van driving erratically passed them and then suddenly hit its brakes in front of the plaintiff’s husband, causing him to crash. The van drove off, and the driver was never identified.

One of the other riders called the woman with the plaintiff and told her of the accident, saying they should come to the scene right away. They got there shortly after the ambulance, approximately 10 to 15 minutes after they received the call.