Opinion
No. 53878-1-I
Filed: June 6, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-17745-0. Judgment or order under review. Date filed: 02/10/2004. Judge signing: Hon. William L Downing.
Counsel for Appellant(s), David Andrews Williams, Attorney at Law, 9 Lake Bellevue Dr Ste 104, Bellevue, WA 98005-2454.
Counsel for Respondent(s), Deborah Lynn Carstens, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Jerret E. Sale, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Jessica Low was injured in a two-car collision. Low was a passenger in a northbound taxi driven by Gurdev Singh. A southbound truck driven by a drunk driver, crossed the center line and struck the taxi head-on. The taxi was in the left or center northbound lane. Low sued Singh's estate, claiming that he was violating RCW 46.61.100(2) by not driving in the far right lane at the time of the accident. The trial court rejected Low's proposed jury instructions that included RCW 46.61.100(2) and indicated that violation of a statute could be considered as evidence of negligence. Because Low's interest in not being injured in a head-on collision is not an interest protected by RCW 46.61.100(2), and she is not in the class of persons intended to be protected by the statute, we affirm.
FACTS
On December 29, 2000, a truck driven by Devin Briggs collided head-on with a taxi driven by Gurdev Singh. Briggs had been traveling southbound on East Marginal Way; Singh had been traveling northbound on the same road. Briggs and his passenger were both killed. Singh was also killed. Appellant Jessica Low, who had boarded Singh's taxi at the airport, was seriously injured. Both Briggs and his passenger were legally intoxicated at the time of the accident.
Low sued Briggs' estate, Singh's estate, and Patricia Stephens, the taxi's owner. The claims against Stephens were dismissed before trial, and Briggs' estate admitted fault and did not participate in the trial; as a result, the only issue at trial was whether Singh was at fault.
Several accident reconstructionists and investigators testified at trial. All agreed that Briggs had crossed the center line of the road and collided with Singh's taxi. However, they disagreed on whether Briggs was attempting to make a left turn or had just drifted across the center line at the time of the collision. They also disagreed on whether Singh was driving in the middle northbound lane or the far left northbound lane. Low pursued two theories of liability against Singh's estate: first, that Singh should have seen and reacted to Briggs' truck in time to avoid the crash, but that Singh was distracted because of his cell phone; and second, that Singh would have avoided the crash if he had been complying with RCW 46.61.100(2). Most of the evidence at trial pertained to the former theory, including Low's testimony that Singh had been talking on his cell phone as they left the airport and had been driving very fast, Singh's cell phone records immediately before the accident, and Low's testimony that although she did not normally wear seatbelts in taxis and did not put one on when she got in to the taxi, she had her seatbelt on at the time of the accident. In support of her latter theory, Low submitted the following two jury instructions, in pertinent part:
East Marginal Way has three northbound lanes and three southbound lanes, with a two-way left turn lane in the middle.
Although she remembered the events at the airport and immediately afterwards, Low had no memory of what happened either during the collision or in the moments before the collision. Although she did not remember putting her seatbelt on that evening when they left the airport, she did have the seatbelt on when the accident occurred. Presumably the significance of this testimony was that she must have put her seatbelt on because she feared for her safety.
INSTRUCTION NO.: The violation, if any, of a statute is not necessarily negligence, but may be considered by you as evidence in determining negligence
INSTRUCTION NO.: A statute provides that: `Upon all roadways having two or more lanes for traffic moving in the same direction, all vehicles shall be driven in the right-hand lane then available for traffic, except (a) when overtaking and passing another vehicle proceeding in the same direction, (b) when traveling at a speed greater than the traffic flow, (c) when moving left to allow traffic to merge, or (d) when preparing for a left turn at an intersection, exit, or into a private road or driveway when such left turn is legally permitted[.]'
The second instruction is an excerpt from RCW 46.61.100(2). The trial court refused to give the proposed instructions, stating that it did not think the statute was intended to protect the class of individuals of which Low was a part.
The jury found that Singh was negligent, but that his negligence was not a proximate cause of Low's injuries and damages. Low appeals.
ANALYSIS I. Low's Proposed Jury Instructions
Low claims that the trial court erred in refusing her proposed jury instructions. She claims that Singh was illegally driving in the wrong lane at the time of the accident, and that the jury should have been told so. Further, she claims, the jury should have been instructed that it could consider Singh's alleged violation of RCW 46.61.100(2) as evidence of his negligence. We find no error.
A statute may impose a duty additional to and different from the duty to exercise ordinary care. Mathis v. Ammons, 84 Wn. App. 411, 416, 928 P.2d 431 (1996), amended on denial of recons., (1997). This duty exists when the statute
meets a four-part test drawn from the restatement (second) of torts: The statute's purposes, exclusively or in part, must be (1) to protect a class of persons that includes the person whose interest is invaded; (2) to protect the particular interest invaded; (3) to protect that interest against the kind of harm that resulted; and (4) to protect that interest against the particular hazard from which the harm resulted.
Mathis, 84 Wn. App. at 416.
In 1986, the legislature enacted RCW 5.40.050, which provides, in pertinent part, that `[a] breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence.' RCW 5.40.050 did not change the four-part test for determining the existence of a statutory duty; rather, it assumes the existence and breach of that duty. Mathis, 84 Wn. App. at 417-18. Thus, in order for a violation of a statute to be admitted as evidence of negligence, the four-part test must first be met.
Here, the trial court applied the test and ruled that Low was not in the class of persons that RCW 46.61.100(2) was intended to protect, and that no breach of duty could be found from the statutory violation in this case. A trial court's refusal to give a proposed jury instruction based on a ruling of law is reviewed de novo by an appellate court. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). As the trial court's ruling pertains to an issue of law, we review it de novo.
We look to the purpose of legislation to determine whether it meets the four-part test and whether a statutory duty exists. RCW 46.61.100(2) was amended to its current form in 1986. Laws of 1986, ch. 93, sec. 2. Prior to this amendment, only vehicles moving slower than the speed limit were generally prohibited from using the left lanes of traffic; the 1986 amendment provided that all vehicles should use the right lanes unless one of the exceptions applied. Laws of 1986, ch. 93, sec. 2. The background summary of the 1986 amendment noted this difference, stating that while slower vehicles were already prohibited from using the left lanes, there currently is no statutory requirement for other vehicular traffic to keep right except when passing, turning left, moving left to accommodate merging traffic or travelling at a speed greater than the traffic flow on multi-lane highway facilities. Slower vehicles travelling in the left-hand lane(s) can disrupt the traffic flow in all available lanes and may increase the accident potential because of the speed differential.
Final Legislative Report, 49th Leg., at 32-33 (Wash. 1986). This summary indicates that the purpose of the 1986 amendment was to improve traffic flow and avoid accidents caused by vehicles driving at differing speeds in the left lanes. The purpose was not to prevent accidents caused by a vehicle crossing the center line and colliding with traffic in the left lane. Low's interest in not being injured in a head-on collision is not an interest protected by the statute; thus, there is no statutory duty and Low's claim of error must fail.
Further, Low's assertion that she is in the class of persons intended to be protected by RCW 46.61.100(2) was rejected by the court in Sadler v. Wagner, 5 Wn. App. 77, 486 P.2d 330 (1971). In Sadler, the plaintiff was driving in the left northbound lane of a four-lane highway. Sadler, 5 Wn. App. at 78. The defendant was driving westbound on a cross-street, heading towards the highway. Sadler, 5 Wn. App. at 78. The defendant made a left turn across the highway in front of the plaintiff's vehicle, and the cars collided. Sadler, 5 Wn. App. at 78. The defendant argued that the plaintiff was contributorily negligent, claiming that by driving in the left northbound lane, the plaintiff was violating RCW 46.61.100(2). Sadler, 5 Wn. App. at 81-82. The court disagreed and found that the statute did not impose a duty in this case:
Although there are no cases defining the purpose of the statute [RCW 46.61.100(2)], it is obvious that it seeks to eliminate the hazard of slower moving vehicles driving in the left-hand lane and thereby impeding safe and expeditious passing by vehicles driving at the maximum rate of speed. It was not designed to regulate the rights of vehicles at intersections. The rule is well settled that violation of a statute is not negligence per se except as to persons within the class intended to be protected by the statute. Defendant was not within that class of persons.
Sadler, 5 Wn. App. at 82 (citation omitted). Although the court specifically held that RCW 46.61.100(2) was not intended to regulate the rights of vehicles at intersections, the rationale for the holding is that the purpose of the statute is to eliminate the hazard of slow vehicles in the left lanes. Though RCW 46.61.100(2) has been amended since Sadler, the purpose of the statute has not changed significantly since that time; as the legislature noted in 1986, the statute's purpose is to improve traffic flow and avoid accidents as a result of slower-moving vehicles. Thus, the rationale for concluding that the Sadler defendant was not in the class intended to be protected by RCW 46.61.100(2) also applies to Low, and accordingly defeats her claim of negligence.
The version of RCW 46.61.100(2) that was in place when Sadler was decided provided that only vehicles driving under the speed limit or at a speed `slower than necessary' were required to be in the right-hand lane then available for traffic.
Low's reliance on Bearden v. Estate of Chisholm, 3 Wn. App. 454, 476 P.2d 127 (1970), to support her contention that she was in the class of persons intended to be protected by RCW 46.61.100(2), is misplaced. In Bearden, the defendant was allegedly driving partially left of the center line when he hit the plaintiff, a pedestrian. Bearden, 3 Wn. App. at 456. The court noted that the point of impact might thus have been on the left side of the road. Bearden, 3 Wn. App. at 455. The court held that if these allegations were true, they established prima facie negligence, as driving on the left of the center line is a violation of RCW 46.61.100, and the plaintiff was one of the class of persons protected by that statute. Bearden, 3 Wn. App. at 456. However, Bearden is too dissimilar from this case to be of help to Low. First, Bearden is concerned with the portion of RCW 46.61.100 that prohibits driving left of the center line, which is not the provision at issue here. Second, Low is suing the driver of the taxi she was in, not the driver that crossed the center line; thus, the reasoning of Bearden is not applicable to her circumstances.
II. Other Issues
Singh's estate argues that even if the trial court's failure to give Low's proposed jury instructions was error, it was harmless error. As we hold that the refusal to give Low's instructions was not error, we need not reach this issue.
Singh's estate raises several cross-assignments of error to preserve its objections if this case was remanded for a new trial. As we affirm the decision of the trial court and do not remand, we need not reach the cross-assignments of error.
Affirmed.
COX, and BAKER, JJ., Concur.