Seattle Attorneys Blog

Washington Appeals Court Allows Premises Liability Case to Proceed Against Wal-Mart for Snake Bite

January 12, 2017 | by Blair & Kim, PLLC

Generally, a property owner is liable for injuries to its customers only if it has actual or constructive notice of the hazardous condition that resulted in the injury. Washington law recognizes an exception, however, when the nature of the business and its operational methods make the existence of unsafe conditions reasonably foreseeable. This exception, set forth in Pimentel v. Roundup Company, is known as the Pimentel or self-service exception because it applies to self-service operations. “Self-service” simply means that the customers handle the goods and serve themselves.

There are three factors that must be met for the Pimentel exception to apply. First, the injury must occur in a self-service area. Second, the hazardous condition that caused the injury must also be in the self-service area. Finally, the businesss mode of operation must inherently create a hazardous condition that is reasonably foreseeable.

The Pimentel exception commonly arises in a slip and fall context. In a recent unpublished case, however, the Washington Court of Appeals applied it in an unusual context. In Craig v. Wal-Mart Stores, Inc., the exception was applied when a man was bitten by a rattlesnake in a Wal-Mart garden center.

Washington Supreme Court Holds THC Implied Consent Warning Not Required

January 5, 2017 | by Blair & Kim, PLLC

Implied consent is an important aspect of DUI defense. The Washington implied consent statute, RCW 46.20.308, requires officers to inform a driver suspected of DUI of certain consequences of refusing or submitting to a breath test. When recreational marijuana use was decriminalized in Washington, the legislature set a legal limit for THC levels in the blood while driving. It also added a warning to the implied consent statute, stating the consequences of a breath test that indicated the driver’s THC concentration was above the legal limit. The available breath tests, however, could not measure THC. Although the statute has since been amended again, there were cases that arose under the language requiring the THC warning.

This blog previously discussed the case of State v. Murray, wherein the Court of Appeals found that the defendant’s breath test results were not admissible because the officer did not provide the THC warning.

The Supreme Court of Washington recently reviewed that case, consolidated with another. The trooper involved in each case used an identical form in providing the implied consent warning. The warning did not include statutory language regarding THC, but it advised the defendant that he or she was subject to a driver’s license suspension, revocation, or denial if the test indicated he or she was under the influence of alcohol. The form stated the defendant had the right to refuse the test, but if he or she did so, his or her driver’s license, permit, or privilege to drive would be revoked or denied for at least a year, and that refusal could be used in a criminal trial. It further stated that the driver’s license, permit, or privilege to drive could be suspended, revoked, or denied for at least 90 days if the defendant was at least 21 years old, the test indicated a blood alcohol level of .08 or more, and the defendant was in violation of RCW 46.61.502, Driving Under the Influence, or RCW 46.1.504, Physical Control of a Vehicle under the Influence.

Washington Appeals Court Upholds Defense Summary Judgment for “Favored Driver”

December 31, 2016 | by Blair & Kim, PLLC

The right-of-way can be an important issue in automobile accident cases. It can be difficult for a plaintiff who fails to yield the right-of-way to recover compensation from the other driver. A Washington appeals court recently reviewed a case in which the plaintiff was hit by an oncoming vehicle as the plaintiff attempted to turn left in Colburn v. Trees.

The accident occurred when the plaintiff, traveling north, turned left at an intersection and was struck by the defendant, who was going south. There were no turn lanes at the intersection. The defendant approached in the left lane, but he moved to the right lane after seeing a bus preparing for a left turn in the left lane. The bus partially obstructed each driver’s view. Each entered the intersection on a green light. The defendant continued south, while the plaintiff crossed the southbound lanes to turn left. The defendant tried to swerve but still struck the plaintiff’s vehicle.

The plaintiff sued the defendant, and the trial court granted summary judgment in favor of the defense. The plaintiff appealed.

Contempt of Court for Property Damage in Washington Divorce

December 27, 2016 | by Blair & Kim, PLLC

Emotions run high during divorce, and sometimes unfortunately the parties will try to hurt each other. When a party to a divorce intentionally damages property or wastes the couple’s assets, the other party may seek a remedy through the court. In the recent case of In re Marriage of Fellows, a Washington appeals court reviewed an order for contempt of court against a wife who allegedly damaged the couple’s home.

The wife, Michaela, appealed the order finding her in contempt of court for violating the dissolution decree. The trial court found that she had intentionally violated its order by damaging the couple’s home.

The decree awarded the home to the husband, Charles, but allowed the wife to remain there for another 60 days. At the request of the husband’s counsel, the court ruled the home was to be maintained in the condition it was in. When presenting its written ruling, the court also instructed the wife not to damage the home in any way, and it noted that if damage did occur, the court would consider contempt and address the damage.

Waste, Separate Property, and Deviation from the Standard Calculation in Washington Divorce

December 23, 2016 | by Blair & Kim, PLLC

High-asset divorces are very complex and difficult matters. It is not uncommon for one party to allege the other has either wasted or hidden assets. Additionally, the standard calculation may not be an equitable way to determine the appropriate amount of support, so the court has some discretion to deviate from the standard if it considers the appropriate factors and makes findings of fact.

A Washington appeals court recently considered waste, separate property, and a possible deviation from the standard distribution calculation in In re Marriage of Hansen. The couple married in 2001, and the decree was issued in 2015. The couple had two children. The husband owned and operated a bail bond company, which was the couple’s primary source of income. The wife did not work outside the home and had been financially dependent on her husband well before the marriage.

In 2013, the husband purchased another bail bond company, for which he paid partially with funds from shared retirement accounts. The couple incurred early withdrawal fees and taxes of more than $120,000.

Washington Appeals Court Finds Exclusion Appropriate Remedy for State’s Failure to Disclose Witness

December 14, 2016 | by Blair & Kim, PLLC

In Washington criminal cases, the prosecution must disclose upon written demand the names and addresses of the people it “intends to call as witnesses . . .” and any expert witnesses it intends to call at trial, if that information is within its knowledge, possession, or control. The Washington Court of Appeals recently considered whether it was permissible for the State to wait until the day of trial to name the actual witness in State v. Salgado-Mendoza.

After being arrested for DUI, the defendant voluntarily submitted to two breath tests. Several months before his scheduled trial date, he requested that the State disclose information about its expert witnesses. The State filed a witness list in December 2012, naming nine toxicologists, one of whom would testify.

The defendant filed a supplementary discovery demand about two weeks before trial, seeking the names of all the expert witnesses the state intended to call. Three days before trial, he moved for the dismissal or exclusion of the toxicologist’s evidence. He argued the State had committed governmental misconduct by failing to disclose who would testify, despite multiple requests.

Washington Court of Appeals Clarifies Use of Self-Defense in Domestic Violence Case

December 14, 2016 | by Blair & Kim, PLLC

In a recent opinion, the Court of Appeals of Washington decided the issue of whether a defendant is entitled to a self-defense instruction when only the state produces evidence of self-defense. In State v. Thysell (Wash. Ct. App. June 9, 2016), the defendant was charged with fourth-degree assault, domestic violence, after a physical altercation between the defendant and her daughter. At trial, the defendant requested a jury instruction on self-defense. The prosecution objected, arguing that the defendant presented no evidence of self-defense, and any testimony that could arguably support such an instruction came through the state’s witness, the defendant’s daughter. The trial court ruled in favor of the state and denied any instruction to the jury on self-defense. The jury subsequently found the defendant guilty of fourth-degree assault, domestic violence.

On appeal, the defendant contended that the trial court erred by denying a self-defense instruction on the basis that she failed to produce the evidence on which her instruction was based. She argued that it was irrelevant who produced the evidence, as long as the evidence is sufficient to warrant a jury instruction on self-defense. The prosecution, in response, argued that a defendant is not entitled to a self-defense instruction unless she produces the evidence based on which the instruction would be warranted.

Washington Missing Person Instruction Error Where Testimony Would Be Self-Incriminating

December 7, 2016 | by Blair & Kim, PLLC

Under the missing witness doctrine, if a person who could have been called to testify is not, the jury may infer that person’s testimony would have been unfavorable to the party who naturally would have called him or her. This doctrine and the associated jury instruction can be highly detrimental to a case, and are therefore to be used sparingly, particularly in the case of a criminal defendant. There are therefore requirements and limitations to when they apply.

The Washington Court of Appeals recently considered the application of the missing witness jury instruction in State v. Houser . A woman called 911 after the defendant knocked on her door at about 9 p.m. with a swollen lip and bloody nose. He told the woman’s husband that his car was in a ditch about a mile away. The defendant later told the state trooper he had some beers that night and drove off the road and struck a pole. After a field sobriety test indicated impairment and he was arrested, the defendant said he was not driving and that his “buddy” had been the driver.

The defendant was charged with felony DUI. The defendant testified he was waiting in his truck outside his friends’ house when he saw an old friend he had not seen in many years. The two decided to get some marijuana, with the friend driving the defendant’s truck because the defendant had been drinking. Afterward, they were on their way to another friend’s house when the accident occurred. The defendant testified his friend was driving at the time of the accident. He said he could not remember exiting the truck. He knew his friend did not stay in the truck, but did not know how he got out or where he went. He had not contacted the friend since the accident, had not tried to reach him, and did not know how to do so.

Supreme Court of Washington Holds There Is No Constitutional Right to Refuse Field Sobriety Test in DUI Case

June 24, 2016 | by Blair & Kim, PLLC

In a significant ruling, Washington’s highest court tackled the question of whether a defendant’s refusal to perform a field sobriety test may be used against him at trial on a charge of driving under the influence (DUI). The court ultimately held that a field sobriety test is not a search but a seizure justified under the doctrine of Terry. Therefore, the court explained, defendants do not have a constitutional right to refuse a field sobriety test, and such a refusal may properly be used as evidence of guilt against them at trial.

In State of Washington v. Mecham (Wash. June 16, 2016), a police officer ran a random license check on the defendant’s vehicle while stopped behind him at a light. After finding an outstanding warrant, the police officer pulled over the defendant and arrested him. The officer smelled alcohol on the defendant’s breath and observed an open beer can in the defendant’s passenger seat. The officer asked the defendant if he would consent to perform a field sobriety test, and the defendant refused. The police eventually obtained a search warrant authorizing a blood draw, which indicated alcohol in the defendant’s system. Following a trial, a jury found the defendant guilty of felony DUI. The defendant appealed, arguing that the trial court erred in allowing evidence of his refusal to perform a field sobriety test to be used against him at trial.

In Washington, although prosecutors may not comment on a refusal to waive a constitutional right, the state may admit evidence that a defendant is asserting a non-constitutional right as evidence of consciousness of guilt at trial. On appeal, the court narrowed the dispositive issue to whether a defendant has a constitutional right to refuse to perform a field sobriety test.

Washington Appeals Court Addresses Recreational Use Immunity in Personal Injury Case

May 27, 2016 | by Blair & Kim, PLLC

In a recent case, the Court of Appeals of Washington reviewed a personal injury claim brought by a park visitor against the Port of Skamania County. In Hively v. Port of Skamania County (Wash. Ct. App. Apr. 4, 2016), the plaintiff was visiting one of the Port’s parks, Teo Park, when he tripped and fell on an asphalt path on the way to the restroom. The plaintiff brought suit against the Port for negligence. The Port moved for summary judgment on the ground that it was entitled to recreational use immunity, and the trial court granted the motion. The plaintiff appealed the trial court’s decision to the appellate court.

In Washington, there is a statutory exception to common law invitee premises liability, known as recreational use immunity. The purpose is to encourage landowners and those in lawful possession of land to make it available to the public for recreational purposes by limiting their liability. To be immune, the landowner must prove that the property is open to members of the public for recreational purposes and that no fee of any kind is charged.

In Hively v. Port of Skamania, the plaintiff conceded the first and second elements but argued that the Port charges a fee to cruise ships to dock and to parties who wish to exclusively rent Teo Park. On appeal, the court explained that a landowner may charge a fee to use part of its land but maintain immunity for the recreational use of the remainder of the land. However, the fee cannot be one charged for using the land or water area where the injury occurred. As a result, a landowner is not entitled to immunity when the place where the injury occurred is a necessary and vital part of the fee-generating area.