Seattle Attorneys Blog

Washington Supreme Court Allows Mother to Obtain Protection Order on Behalf of Son

July 28, 2017 | by Blair & Kim, PLLC

Washington civil protection order attorneys understand that domestic violence can be a complex issue that reaches beyond the couple. Children may become involved by witnessing the violence or by being threatened. Washington law allows a person to petition for a protection order on behalf of himself or herself, or on behalf of minor family or household members.

A Washington Court of Appeals, however, recently held that a mother could not obtain a protection order on behalf of her child when the child was not “present” for the violence and did not have fear of imminent harm, bodily injury, or assault. The Washington Supreme Court disagreed.

In this case, the mother petitioned for a domestic violence protection order against her son’s father on behalf of herself and her children following a history of domestic violence. According to the Washington Supreme Court opinion, the man had repeatedly physically and emotionally assaulted his son’s mother. He pushed her to the ground while she was pregnant, had tried to smother her with a pillow, pulled a knife on her, threatened to kidnap their son, and threatened to do something horrible to her daughters. He also threatened to kill her, her children, and himself.

Washington Appeals Court Finds Separate Property Converts to Community Property During Separation Under Prenuptial Agreement

July 23, 2017 | by Blair & Kim, PLLC

No one wants to think about divorce before they are even married, but a prenuptial agreement can protect both parties if the marriage doesn’t work out. While most people think in terms of either being married or divorced, Washington divorce attorneys understand there may be significant periods of separation. If a prenuptial agreement does not specifically address what occurs during the separation, the parties will likely be considered married until the dissolution. This could result in separate property converting to community property during the separation, as occurred in a recent case.

The husband had become wealthy from the stock options he received as a Google employee. The couple signed a prenuptial agreement and married in September 2005. They separated in 2014 when the husband filed for divorce.

They reached an agreement on a parenting plan for their child, but they had to go to trial to resolve their financial issues. The husband appealed the trial court’s distribution of property, challenging the interpretation of the prenuptial agreement.

Paraphernalia Possession Not Sufficient to Establish Probable Cause for Intent to Use in Washington

July 14, 2017 | by Blair & Kim, PLLC

Probable cause is required for a warrantless arrest. To have probable cause, the arresting officer must be aware of facts or circumstances that are based on reasonably trustworthy information that is sufficient to cause a reasonable officer to believe a crime was committed. If the arresting officer did not have probable cause for the warrantless arrest, evidence discovered in a search incident to that arrest should be suppressed.

A Washington appeals court recently considered whether possession of a pipe known by the officer to be of a type commonly used to smoke methamphetamine was sufficient to create probable cause. Two deputies responded to a call from a drugstore that a man was inside the store stuffing items in his jacket. One of the deputies detained the defendant on suspicion of shoplifting, although he did not have any unpaid merchandise with him. When the deputy frisked the defendant for weapons, he felt something he identified as being the shape of a methamphetamine pipe. He removed the pipe from the defendant’s pocket. The defendant was arrested, and, during the search incident to the arrest, the deputy found a bag of methamphetamine on the defendant.

The defendant was charged with possession of methamphetamine. He moved to suppress. He was ultimately convicted as charged in a bench trial. The defendant appealed, arguing the deputies did not have probable cause to arrest him.

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 Court Finds Traffic Stop Constitutional When Defendant Crossed Fog Line

July 1, 2017 | by Blair & Kim, PLLC

Individuals are protected from unreasonable seizures by both the U.S. and Washington Constitutions. Warrantless seizures are unreasonable unless an exception applies, and it is the state that must establish that an exception exists. A traffic stop is considered a seizure. For a warrantless traffic stop to be constitutional, there must be a reasonable articulable suspicion of criminal activity or a traffic infraction. The scope of the stop must be reasonably limited.

A Washington appeals court recently considered whether the state had a reasonable articulable suspicion when it was undisputed that the defendant had crossed the fog line for about 200 feet. A state patrol trooper was driving behind the defendant and observed her drive two wheels of her vehicle over the fog line for about 200 feet. The trooper pulled the defendant over. She submitted to sobriety tests, and the trooper arrested her for driving under the influence after observing clues of intoxication.

The defendant moved to suppress the evidence from the stop, and she moved for dismissal, arguing that the trooper did not have a reasonable suspicion to justify the stop. The state argued that the defendant committed an infraction when she drove on the shoulder.

Washington Court Denies Negligent Infliction of Emotional Distress Claim

June 21, 2017 | by Blair & Kim, PLLC

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.

The 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.

Waiver of Enforcement Limitations on Washington Child Support Orders

June 15, 2017 | by Blair & Kim, PLLC

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.”

RCW 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.

Alternative Means and Unanimous Jury Verdicts in Washington

June 8, 2017 | by Blair & Kim, PLLC

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.

At 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.

Free Speech and Washington Civil Protection Orders

May 30, 2017 | by Blair & Kim, PLLC

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.

A 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.”

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….”