Opinion
No. 54283-4-I
Filed: May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-04282-1. Judgment or order under review. Date filed: 04/29/2004. Judge signing: Hon. Ronald Kessler.
Counsel for Appellant(s), M.L. Daniel, Daniel Law Offices, 3511 SW Alaska Street, Seattle, WA 98126-2730.
Counsel for Respondent(s), John William Cobb, Attorney at Law, 900 King Co Administration Bldg, 500 4th Ave, Seattle, WA 98104-2337.
Jonah Karch appeals the final judgment entered against him in his action against King County. Karch sued the county after he was injured while dumping garbage at a solid waste transfer facility. He contends the trial court erred by allowing the jury to consider the county's assumption of the risk defense. But substantial evidence in the record establishes that Karch subjectively knew of the hazards that caused his injuries and voluntarily chose to proceed anyway. Because this is enough evidence to submit the defense to a jury, and because that evidence is sufficient to support the verdict, we affirm.
FACTS
Until a disabling back injury forced his retirement in 1978, Jonah Karch had worked as a truck driver for the City of Seattle Engineering Department, a job which required him to make frequent trips to solid waste transfer facilities. In January 1997, when he was 69 years old, Karch went to the Renton Solid Waste Transfer Station to dump household trash. That transfer station has a drop of approximately 12 feet between the dumping platform and the trailer below. Three horizontal cables separate the platform from the drop.
Karch backed his pickup truck into one of the dumping stalls, opened the tailgate, and stepped up into the back of the truck. He then attempted to unload a student organ, which was approximately two and one-half feet long, two feet high, and one and one-half feet wide and weighed 60-70 pounds. Unable to lift the entire organ, Karch propped its back end on the top cable separating the platform from the trailer below. Karch then stood in the back of his truck and lifted the front end. He testified that he hoped the cable would act as a fulcrum, but that once the organ was on top of the cable, he noticed the cable was loose and he determined that it would not work. He nevertheless swung the organ back and forth on the cable several times, and finally gave it one big push. With that last push, Karch lost control and fell into the trailer below. He lost consciousness and fractured his nose and neck.
Karch sued King County for negligence, alleging that it failed to maintain the facility in a reasonably safe manner, warn of the dangers associated with dumping refuse, notify patrons of the dangers associated with dumping refuse over loose cables, and provide disability accommodations. In its answer, the county asserted contributory negligence and assumption of the risk defenses. The county also moved unsuccessfully for summary judgment.
After a four-day trial in March 2004, Karch moved for a directed verdict and to exclude the county's assumption of the risk defense. The court denied the motions, and a jury entered a special verdict finding that Karch assumed the risk by attempting to unload the organ the way he did. On April 29, 2004, the trial court entered a final judgment dismissing the case with prejudice. Karch appeals.
DISCUSSION I. Sufficiency of the Evidence to Support Assumption of the Risk Defense Traditionally, the assumption of the risk doctrine has four facets:
(1) express assumption of risk; (2) implied primary assumption of risk; (3) implied reasonable assumption of risk; and (4) implied unreasonable assumption of risk. Only the second facet, implied primary assumption of risk, is pertinent here. Implied primary assumption of risk, which we will refer to as `assumption of the risk,' arises when a plaintiff impliedly consents to relieve a defendant of its duty to protect the plaintiff from specific known and appreciated risks. If a plaintiff impliedly consented before the accident or injury to negate a duty the defendant otherwise would have owed him, the defendant has no duty and there can be no negligence. In other words, a successful assumption of the risk defense acts as a complete bar to recovery. In this case, Karch was a public invitee, so the county was obligated to exercise reasonable care for his safety. The county must exercise that care with respect to conditions on the premises that pose an unreasonable risk of harm, and it has the duty to ascertain and warn of dangerous conditions.
Scott By Through Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992) (citing Shorter v. Drury, 103 Wn.2d 645, 655, 695 P.2d 116, cert. denied, 474 U.S. 827 (1985)).
Id. at 497 (citing Kirk v. Wash. State Univ., 109 Wn.2d 448, 453, 746 P.2d 285 (1987)).
Erie v. White, 92 Wn. App. 297, 302, 966 P.2d 342 (1998) (citing Scott, 119 Wn.2d at 498; Kirk, 109 Wn.2d at 453-54; Alston v. Blythe, 88 Wn. App. 26, 33, 943 P.2d 692 (1997); Dorr v. Big Creek Wood Prods., Inc., 84 Wn. App. 420, 426-27, 927 P.2d 1148 (1996)), review denied, 137 Wn.2d 1022 (1999).
Id. (citing Scott, 119 Wn.2d at 497; Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 143, 875 P.2d 621 (1994); Dorr, 84 Wn. App. at 427; Alston, 88 Wn. App. at 33; Leyendecker v. Cousins, 53 Wn. App. 769, 773, 770 P.2d 675, review denied, 113 Wn.2d 1018 (1989)).
Id. (citing Scott, 119 Wn.2d at 496-97; Alston, 88 Wn. App. at 33; Dorr, 84 Wn. App. at 425; Leyendecker, 53 Wn. App. at 773)).
A person is a public invitee if he or she is invited to enter or remain on land as a member of the public for a purpose for which the land is open to the public. Home v. N. Kitsap Sch. Dist., 92 Wn. App. 709, 717, 965 P.2d 1112 (1998) (citing McKinnon v. Wash. Fed. Sav. Loan Ass'n, 68 Wn. 2d 644, 650, 414 P.2d 773 (1966); Younce v. Ferguson, 106 Wn.2d 658, 667, 724 P.2d 991 (1986); Steele v. Thorne, 72 Wn.2d 714, 716, 435 P.2d 544 (1967), overruled on other grounds, Memel v. Reimer, 85 Wn.2d 685, 538 P.2d 517 (1975); 6 Washington Pattern Jury Instructions: Civil, 120.05 (3d ed. 1989)). We have previously suggested that one who visits a solid waste transfer station is a public invitee. Radford v. City of Hoquiam, 54 Wn. App. 351, 360-61, 773 P.2d 861 (1989). Karch could also be characterized as a business visitor, a person who is invited to enter or remain on land for a purpose connected to business dealings with the possessor of the land. Home, 92 Wn. App. at 717-18 (citing McKinnon, 68 Wn.2d at 650; Younce, 106 Wn.2d at 667; Steele, 72 Wn.2d at 716); Washington Pattern Jury Instruction 120.05). Either way, the duty owed is the same.
Johnson v. State, 77 Wn. App. 934, 941, 894 P.2d 1366, review denied, 127 Wn.2d 1020 (1995).
Id. (citing Ford v. Red Lion Inns, 67 Wn. App. 766, 770-71, 840 P.2d 198 (1992), review denied, 120 Wn.2d 1029 (1993)).
Id. (citing Swanson v. McKain, 59 Wn. App. 303, 310 n. 4, 796 P.2d 1291 (1990), review denied, 116 Wn.2d 1007 (1991)).
To rely on assumption of the risk as a defense, the defendant must show that the plaintiff: "(1) had full subjective understanding, (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter that risk." In other words, the evidence must show that the plaintiff had knowledge of the risk, appreciated and understood its nature, and voluntarily chose to take it. `Knowledge and voluntariness are questions of fact for the jury, except when reasonable minds could not differ.'
Erie, 92 Wn. App. at 303 (quoting Kirk, 109 Wn.2d at 453; citing Wagenblast v. Odessa Sch. Dist. No., 105-157-166J, 110 Wn.2d 845, 858, 758 P.2d 968 (1988)).
Id. (citing Shorter, 103 Wn.2d at 656; Martin v. Kidwiler, 71 Wn.2d 47, 49, 426 P.2d 489 (1967); Bailey v. Safeway Stores, Inc., 55 Wn.2d 728, 731, 349 P.2d 1077 (1960)).
Id. (citing Alston, 88 Wn. App. at 34)).
A plaintiff knowingly assumes a risk if, at the time of the decision, he or she actually and subjectively knew all the facts that a reasonable person in the defendant's position would know and disclose, or all facts that a reasonable person in the plaintiff's position would want to know and consider. Thus the test is subjective, asking whether the plaintiff in fact understood the risk, as opposed to whether a reasonable person of ordinary prudence would understand the risk. `The plaintiff must `be aware of more than just the generalized risk of [his or her] activities; there must be proof [he or she] knew of and appreciated the specific hazard which caused the injury.''
Home, 92 Wn. App. at 720.
Id. (citing Shorter, 103 Wn.2d at 656-57).
Id. at 720-21 (alteration in original) (quoting Shorter, 103 Wn.2d at 657; citing Klein v. R.D. Werner Co., Inc., 98 Wn.2d 316, 319, 654 P.2d 94 (1982); Martin, 71 Wn.2d at 49-50; Restatement (Second) of Torts sec. 496 D cmt. b).
A plaintiff voluntarily assumes a risk if he or she elects to take it despite knowing of a reasonable alternate course of action. The plaintiff "must have had a reasonable opportunity to act differently or proceed on an alternate course that would have avoided the danger."
Id. at 721 (citing Zook v. Baier, 9 Wn. App. 708, 716, 514 P.2d 923 (1973); Restatement (Second) of Torts sec. 496 E).
Id. (quoting Zook, 9 Wn. App. at 716).
In this case, Karch argues that the county did not present enough evidence to justify the trial court's decision to allow the assumption of the risk defense to go to the jury. A trial court may submit this defense to the jury if substantial evidence in the record supports it. We hold that the trial court did not err by allowing the jury to consider the defense because there is substantial evidence that Karch knew of the hazards that caused his injuries but voluntarily chose to proceed anyway. Karch's own testimony indicated that he knew that there was a significant drop between the platform and the trailer below and that a person could fall into the trailer if he or she was not careful. He testified that his back injuries disabled him, and that he was unable to lift the organ by himself, which is why he tried to use the cable as a fulcrum. He knew that the top cable separating the platform from the drop was extremely loose and sagging, and he testified that he was especially aware of the sagging cable when he put weight upon it. Once he put the weight on the cable, he realized that he could not use it as a fulcrum. Yet he pushed the organ several times so that the organ and cable together swung like a `porch swing.' He testified that he knew he was having difficulty unloading the organ, but he kept pushing.
Klein, 98 Wn.2d at 318 (citing Langan v. Valicopters, Inc., 88 Wn.2d 855, 866, 567 P.2d 218 (1977)); Dorr, 84 Wn. App. at 430.
Karch argues that there is no evidence that he assumed the risk because he did not subjectively know that he was going to fall into the trailer by trying to use the loose cable as a fulcrum. But Karch knew the facts that constituted the risk. He clearly knew that he could not dump the organ by himself without using the cable as a fulcrum, the cable was loose and not working as he wished, and there was a risk of falling into the trailer. And Karch voluntarily chose to take on that risk, as he admitted that he could have stopped pushing the organ and asked someone to help him, but chose not to do so.
Karch also argues that there was insufficient evidence of assumption of the risk to justify the jury's verdict and the trial court's final judgment. We review a jury verdict in a civil case to determine whether it is supported by sufficient evidence. A verdict is so supported if the record contains enough evidence to persuade a rational, fair-minded person that it is true. For the same reasons we held that there was sufficient evidence to submit the defense to the jury, we conclude that sufficient evidence supports the final judgment. It follows that the trial court did not err by denying Karch's motions for a directed verdict and to exclude the assumption of the risk defense.
Wilbun v. Moore, 143 Wn.2d 206, 213, 18 P.3d 576 (2001) (citing Adcox v. Children's Orthopedic Hosp. Med. Ctr., 123 Wn.2d 15, 35, 864 P.2d 921 (1993)).
Id. (citing Canron, Inc. v. Fed. Ins. Co., 82 Wn. App. 480, 486, 918 P.2d 937 (1996), review denied, 131 Wn.2d 1002 (1997)).
II. Jury Instructions and Special Verdict Form
Karch next challenges the jury instructions and special verdict form, arguing that they did not adequately state the law. We review jury instructions for an abuse of discretion. A trial court does not abuse its discretion in instructing the jury if the instructions permit the parties to argue their theories of the case, are not misleading, and properly inform the trier of fact of the applicable law. Special verdict forms must adequately present the contested issues to the jury in an unclouded, fair manner, when read as a whole and in light of the general charge. If a special verdict form contains an erroneous statement of applicable law and is prejudicial, giving it may be reversible error.
Herring v. Dep't of Soc. Health Servs., 81 Wn. App. 1, 22, 914 P.2d 67 (1996) (citing Safeway, Inc. v. Martin, 76 Wn. App. 329, 332, 885 P.2d 842 (1994)).
Id. at 22-23 (citing Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 194, 668 P.2d 571 (1983)).
Capers v. Bon Marche, Div. of Allied Stores, 91 Wn. App. 138, 142, 955 P.2d 822 (1998) (citing Lahmann v. Sisters of St. Francis of Philadelphia, 55 Wn. App. 716, 723, 780 P.2d 868 (1989)), review denied, 137 Wn.2d 1002 (1999).
Id. (citing Hue v. Farmboy Spray Co., Inc., 127 Wn.2d 67, 92, 896 P.2d 682 (1995)).
Karch first challenges jury instruction 13. But that instruction is entirely appropriate, as it simply informs the jury that Karch asserts a negligence claim and the county asserts contributory negligence and assumption of the risk defenses. Because the trial court correctly submitted the county's assumption of the risk defense to the jury, this instruction contains no error.
Karch also challenges instruction 20, asserting that it did not adequately identify the specific risk that Karch had to know and appreciate. The relevant portion of the instruction stated that to find that Karch assumed the risk, the jury must find that `the plaintiff had knowledge of the specific risk associated with dumping garbage over the chains and into the pit[.]' Karch argues that it should have identified the risk as that associated with using loose cables as a fulcrum to dump refuse. But that degree of specificity is not required. The court's instruction was sufficiently specific so as to adequately state the law, it was not misleading, and it permitted both parties to argue their theories of the case. The trial court did not abuse its discretion by giving it.
Karch next challenges jury instruction 22, arguing that like instruction 20, instruction 22 inadequately describes the specific risk. But instruction 22 simply informs the jury of the relevant law defining assumption of the risk, stating that
Knowledge in an implied assumption of the risk defense means that the Plaintiff must be aware of more than just the generalized risk of his activities; there must be proof he knew of the specific facts which create the hazard which caused his injury and must also appreciate the danger itself. A plaintiff appreciates the specific hazard or risk only if he actually and subjectively knows all facts that a reasonable person in the defendant's shoes would know.
This instruction adequately reiterates the law, and there was no error.
See, e.g., Home, 92 Wn. App. at 720-21.
Finally, Karch disputes the special verdict form the court gave the jury because it asked about generalized risk, rather than specific risk as required. The first question on the form asked, `Did the plaintiff have knowledge and appreciate the specific risk associated with attempting to unload the organ from the back of his pickup?' It is true that this question phrased the risk differently from the jury instructions. But if anything, it is more specific than the instructions and could not have misled the jury. The special verdict form adequately and fairly presented the contested issues when read in conjunction with the instructions. While it is arguably preferable to phrase the risk in the same words as those used in the instructions, we cannot say that the form erroneously stated the law to the point of causing prejudice.
We affirm.
AGID, GROSSE and KENNEDY, JJ.