*1 (land (Utter, J., use restriction concurring) at 415 114 Wn.2d ability a church's "markedly perform with must interfere mission"). its neutral, gener- landmark ordinances are
I hold the would exer- which neither the free implicate laws applicable ally nor article the First Amendment violate clause of cise The protec- State Constitution. Washington 11 of the section clauses religion the federal and state tions afforded denied a claimant has not been invoked when not properly in the nature of his or coerced religion ability practice applicable To hold the clauses religion practices. those true meaning unjustifiably their denigrates context this the cultural assets of the City's preserve efforts limits the welfare. See SMC 25.12- general interest in the City .020(A). Smith, JJ., concur with J. Dolliver,
Brachtenbach 6, 1993. January denied Reconsideration 25, 1992.] En Banc. November [No. 57736-6. Respondents, al, et Beatt Washburn, v. Norman Equipment Company, Appellant. *5 McClure,
Reed and Heather Hou- by William R. Hickman ston, for appellant. Sieh,
Edwards, & Wiggins by Wig- Charles K. Hathaway, Fury Bailey, William S. for gins; by Bailey, respondents. A H. Douglas Hofmann, Mary and Robert C. Spillane, on Contractors, Manlowe behalf of Associated General ami- cus appellant. curiae for
Stephen R Larson of Washington on behalf Defense Trial amicus curiae for Lawyers, appellant.
Bryan P. Harnetiaux Gary N. Bloom behalf of Washington State Association, Trial Lawyers amicus curiae for respondents. J. appeal This by defendant is from a
Brachtenbach, rendered judgment upon special verdicts. The jury plaintiffs are Norman Washburn and his wife Sharon. Mr. Washburn extensively burned and permanently injured when a standby system fuel propane caught fire and The exploded. million jury plaintiff1 awarded $6 and his wife million. $2 Plaintiffs cross-appeal calculation of the amount of judgment against defendant, Beatt Equipment Company, which was reduced $5,670,000. to total of We affirm except modify the amount of the for judgment, reasons explained hereafter. (1) briefly
We summarize the defendant's contentions. Defendant's principal argument on is liability plaintiffs' by action barred a statute The repose. statute of repose does not prоtect manufacturer. The jury was instructed on the definition "manufacturer". That instruction was pro- by verdict, The posed jury, by special found aas defendant. manufacturer, matter fact defendant awas as defined Further, verdict, by found that special defendant. safe, defendant's was not product reasonably as in defined (2) an exception instruction which no was taken. Defend- plaintiff singular, we in 1When refer it is in reference to Norman Wash- bum. an in photo- claims abuse discretion certain admitting ant (3) (4) Defendant attacks the size of the verdicts. graphs. ruling. claims error a pretrial procedural Defendant 15, 1986, and a plaintiff October Norman Washburn On Boeing Holmes, at a employee, Boeing/ fellow Scottie were building system. Kent to test a fuel standby propane system had been since its construction place propane defendant had never been put installation but saw there propane use. Plaintiff tinned on the regular *6 no on the Before he could showing gauge. was pressure just up." Report blew Verbatim investigate, "everything (VRP) 3, at vol. 159. Proceedings fire. adjacent Automobiles in the building caught The Fire shooting lot fire and was out caught exploded. parking 3, 88, of fire. at There was wall VRP vol. ground. of the fire; Holmes were both on Holmes was 160. Plaintiff and head, hair, Plaintiff "had fire on his his aflame. completely 3, ground, VRP at 91. Plaintiff rolled on the his back." vol. to Holmes ran in circles. Plaintiff ran Holmes but help but falling on fire Skin was off both of them. again. caught out the fire on Holmes and for helped yelled Plaintiff put to turn off the tank propane prevent storage someone 3, from VRP vol. at 160-63. exploding. Plaintiff, on 70
Holmes died 10 hours later. with bums 15 of his was from October body, hospitalized percent that con- surgeries during 24. He underwent six December next finement, surgeries additional over the four in His will be the discussion of described injuries months. damages award. known Equipment defendant Beatt was as Company when it contracted to construct Contractors Mid-Moimtain in system. specialized pipeline It excavation the pipeline It in experience in the western states. had constmction million done about installing gas having $150 pipelines, Defendant's president State alone. Washington work held out as an install- expert that defendant itself agreed involved 5, at 305. Defendant became VRP vol. ing pipelines. a subcontract standby system when heating in creation was awarded to it by Petrolane, which had a contract- with Boeing install a fuel standby propane system at its Kent facility. Defendant was to material, all the supply piping do various finishing processes, and bury pipeline. Exhibit 26.
There was substantial evidence that defendant did not comply with contract specifications and did not meet indus- try standards. One expert testified, without objection, these failures by defendant caused the explosion. 6, VRP vol. at 215. There was expert testimony was pipe signifi- cantly thinner than called for the specifications. VRP vol. 6, 196; 7, at vol. at 323. The was not pipe properly prepared before it welded, wrapped and coated. As a result corro- sion was inevitable. 7, VRP vol. 337-38. The coating which is applied the welded and wrapped joints critical to protection against corrosion. The specifications called for a coal-tar enamel; defendant used less cheaper, durable and more permeable asphalt coating, applied thickness a third roughly less than specified. VRP vol. at 273-83. The thinner coating would "definitely decrease the life of the coating." VRP vol. at 282-83.
A coatings expert testified, without objection, improper coating material, applied at less thickness than *7 specified, contributed to the corrosion which caused the 5, VRP explosion. vol. at 283.
The coating damaged before the was buried. pipe 6, VRP vol. at 204. The backfill material did not meet specifi- cations; consequently chunks of asphalt material damaged This was coating. a very important 6, defect. VRP vol. at 201-02, 205. The experts testified that the installation was substandard, and that the variations from the specifications and industry standards were "[gjreatly significant." VRP vol. 6, 211. The experts testified, without objection, these deficiencies were the proximate cause of the explosion.
With that background we turn to the heart of the ques- tion of The liability. defеnse only to liability asserted on is the statute appeal of repose. Defendant argues that it constructed an improvement real upon property within the .310,3 a
reach of RCW 4.16.300.2 Under RCW 4.16.300 and of accrue of substantial years cause action must within and then a claimant must of completion improvement, Del file suit within the statute of limitations. applicable Ltd., Co. Guzzi Constr. v. Global Northwest Wn.2d 719 P.2d Defendant argues plaintiffs' of have within 6 years cause action would to have accrued of its completion of work. to an
However, repose exception, the statute of is subject i.e., against to claims or causes of action apply "shall RCW 4.16.300. manufacturers". record, this we have a narrow particular very
Because of concerning issue whether defendant was a "manufacturer" if in RCW 4.16.300. More particularly, within the proviso defendant was a manu- jury question there was a whether facturer, required. affirmance is
First, however, argument pipe- note that the plaintiffs' we an within upon property" line was not real "improvement through apply to all claims or causes of action 2"RCW4.16.300 4.16.320 shall constructed, having any any against person, arising person kind from such of any improvement upon property, having performed repaired or or real altered any design, planning, surveying, or or construction furnished architectural or services, construction, supervision engineering or or of or adminis- observation any construction, repair or of for alteration of tration construction contracts only upon property. those improvement real This section is intended to benefit apply to action persons herein and shall not claims or causes of referenced against manufacturers." RCW 4.16.300. accrue, in 3"All causes action as forth RCW 4.16.300 shall claims or of set only period applicable begin during statute of limitation shall run construction, during completion years of or six after substantial within years period enumerated within after the termination the services six completion 4.16.300, phrase con later. 'substantial RCW whichever is improvement completion when an shall mean the state reached struction' Any may upon property occupied its use. cause used or for intended real be completion years which not accrued within six after such substantial action has services, construction, years after termination of whichever or within six such later, PROVIDED, asserted this shall not be shall be barred: That limitation any owner, person possession and control tenant other as defense improvement limitations at the time such cause of action accrues. The apply forth prescribed section to all claims or causes of action as set in this *8 brought name the of the state which 4.16.300 in the or for benefit RCW or commenced after June 1986." RCW 4.16.310. made 4.16.300, the of RCW to the trial court's meaning contrary If determination. was not an to pipeline improvement RCW does not and the real 4.16.300 property, simply apply 4.16.310, builder's statute of RCW does not bar repose, suit. We base our decision in this case other upon grounds, however, assume, and without deciding, pipeline an real upon property, as the trial court improvement held.
Second, theory we of the alternative seller dispose product liability Plaintiffs were allowed to their claim that pursue defendant was seller to whom the statute product true, claim, did not repose apply. It is as plaintiffs found defendant to jury necessarily be a seller under product the instructions Under instruction given. jury jury had to find that defendant was a seller in product order However, determine defendant was a manufacturer. on their that defendant was a seller prevail theory product caused negligence injuries, whose had plaintiffs' plaintiffs 7.72.040(1)(a). establish defendant's See negligence. RCW The verdict special forms directed the to first determine jury defendant then, juiy whether was manufacturer if the manufacturer, found that defendant was a to the proceed form verdict for on that special determining liability theory. The therefore never answered jury questions about whether defendant was as a seller. We do not negligent product address the seller as product theory, we the verdict uphold judgment liability manufacturer grounds.
To decide whether this case should to the gone jury have manufacturer, on the issue whether defendant was a first therefore not the statute of we protected by repose, The relevant look to the definition instructions. 17, given exactly instruction is the trial court's instruction We as submitted and set out the footnote.4 defendant then examine the facts to ascertain whether defendant's fall that definition. activities within entity engaged product person business of 4"A seller is resale, consumption. selling products, for or for use and whether the sale is *9 is emphasize We definition of "manufacturer" one instruction. That was sub only in instruction contained conference, At by the instruction mitted defendant. counsel, in to defendant's defini referring proposed defense manufacturer, tion of stated: "I think that this is a correct at 664. Defense statement the law . . VRP vol. was submitting counsel careful to note his exception manufacturer, to the case on the it was a jury theory 664-65, VRP vol. at but the of manufacturer is definition on defendant as its instruction. There was binding proposed to the of a manu stating duty no instruction exception 16; facturer. Instruction Clerk's at 708. Papers, returned verdict forms. The special jury (1) asked: "Was the defendant a manufacturer of the pipe (2) "Did Papers, Answer: "Yes." Clerk's at 724. question?" reasonably the defendant a which was not supply product safe in construction at the time the left defendant's product control?" Answer: "Ves." Clerk's at 726. The "not Papers, safe" standard the definition reasonably was established aof manufacturer's to which no was taken. duty exception
Before the facts to defendant's activi- analyzing relating ties, reject major arguments. we of defendant's portion Defendant asserts "that the court erred by accepting plain- (Italics ours.) definition of manufacturer." Brief of tiffs' above, at 30. As shown and there is no Appellant, question it, the court definition. accepted about defendant's identi The definition of manufacturer instruction act, cal to the definition in the RCW 7.72- product liability .010(2).5 "was Defendant asserts that use that definition manufacturer, wholesaler, term includes a retailer of the relevant distributor or product. makes, produсt designs, produces, "Manufacturer includes a seller who fabri- cates, part product component constructs or remanufactures relevant or of a product before its sale to a user or consumer. product performs assembly product "A in accordance seller who minor Instruc- with manufacturer's instructions shall not be deemed a manufacturer." 17; Papers, Clerk's at 709. tion product designs, pro 5"Manufacturer. 'Manufacturer' includes a seller who duces, makes, fabricates, constructs, product or remanufactures the relevant totally in this case." Brief of inappropriate at 40. Appellant, We the trial court repeat defini- accepted defendant's tion which defendant stated was a correct statement of the law.
Defendant argues extensively legislative about history, and legislative intent, all to the end that the instruction defining manufacturer was in error. It argues for narrow construction of the proviso excepting manufacturers from the statute of repose. Defendant contends that because the word "manufacturer" is not defined RCW 4.16.300 it must be given its plain Brief of ordinary meaning. 42; Appellant, Brief of Reply at 20-24. Appellant, All of these arguments are irrelevant. This case went to *10 the jury with the as exactly pro- definition of manufacturer posed by defendant.
Therefore, the only whether, issue is law, as a matter of was error to submit the case to the under the definition furnished by defendant. Because of this state of record we do not decide whether the definition of manufacturer should be that act, contained in the and we product liability do not ascertain legislative intent manufac- excepting turers from the statute of All that is decided is repose. whether definition defendant's activities were within the manufacturer as proposed by defendant as a correct state- ment of above, the law. As noted the jury's special verdict found defendant to be a manufacturer as that term was defined for it in defendant's instruction.
It is crucial in this case that theory defendant's below was that as a "contractor/installer" the statute of barred repose plaintiffs' аction However, as a matter of law. pretrial posttrial memoranda and briefs in of motions for support partial summary judgment, verdict, directed judgment trial, n.o.v. and a new the defense if there recognized were factual disputed on the issue whether defend- questions ant was a "manufacturer" and whether cause of plaintiffs' component part product of a before its sale to a user or consumer...." RCW 7.72- .010(2). action arose from then there were manufacturing activity, fact resolution requiring material issues of before applicabil- of the statute of could be determined. ity repose For the defense that an "activities" anal- example, agreed and that the activities of ysis appropriate, manufacturing and sale are not the statute of Clerk's protected by repose. 392; see v. Wn.2d Bellingham, Papers, Pfeifer P.2d 1018 In a memorandum in support partial trial court to dismiss summary judgment asking motion contractor/installer, all claims based on as a activities "[f]or defense with those activi- agreed plaintiffs alleged statute, ties not covered such as the by alleged 'manufac- ture' . . . claims are not covered the statute pipe (Italics ours.) Clerk's at 552. The defense repose." Papers, acknowledged "questions may fact remain as to whether or not Beatt was a seller or manufac- Equipment allegedly turer of the defective but maintained that pipe", there was no of fact question constructing/installing Clerk's repose. activities were shielded the statute at 378. Papers,
When the trial court determined that factual questions remained or about whether defendant was a manufacturer seller, instruc- product proposed only jury defendant tion manufacturer. defining words instruction 17 are that a manufac- operative (1) (2) (3) (4) makes, fabricates,
turer is one who produces, (5) constructs, or remanufactures the relevant product component part product.
Examination of these words must be made operative the context of defendant's theories these words do not why First, it to be a manufacturer. defendant advances permit idea that the sole the proviso implausible purpose was to exclude asbestos manufacturers. Brief of Appellant, No definition of manufacturer lends substance to that at 36. contention.
Next, defendant that manufacturer includes argues "only standardized, those manufacturers of pre-manufactured prod- ucts which are later an into to real incorporated improvement Brief of property." Appellant, Superficially 42. there some — appeal defendant's contention one to think of tends manufacturer as the of a mass operator factory, producing However, products. the definition defendant com- supplied by this pletely destroys argument Defendant's superficial appeal. goes i.e., to the nature production, standardized products, i.e., and to the quantity production, mass produced product. No such limitations are in the definition furnished defend- by make, fabricate, ant's instructions. Ib produce, or construct a single or even a product single component of a part single product can render defendant a manufacturer under defend- ant's own definition. (1) (2) (3)
Again, makes, the words produces, are: fabri- (4) (5) cates, constructs, or defi- Dictionary remanufactures. nitions prove these to encompass very words broad activi- ties.
"Produce" includes give being, form, "to or to" shape and (Italics ours.) "to make economically valuable". Webster's Third New Dictionary International Ib "make" (a bring includes "to thing) material into being by forming, or shaping, altering material"-, lay construct", "to out (Italics "to put together or components ingredients". from ours.) Webster's, at 1363. Ib "fabricate" means "to into a form whole by uniting parts" "to build into a whole up (Italics ours.) uniting interchangeable parts". standardized Webster's, form, make, at 811. Ib "construct" includes "to or create combining parts Webster's, elements". at 489. Having broad, mind very these all defi- encompassing nitions, we examine the evidence defendant's activities. contract for which prime defendant was subcontrac- tor was not for parts, individual but for a Exhibit 4. system. Defendant was a lump sum. Defendant was not paid merely make, selling pieces fabricate and construct pipe, a pipeline system. Exhibit 26. lengths
The 20-foot used in con- could be pipe they dition were manufacturer. produced by original *12 the merely contends it welded and field wrapped Defendant fact, In had to of at 39. much more Appellant, welds. Brief to integral done for become an pipe be the to be usable of the The last 6 inches on each system. length heat part in The was bare. It could not be used that condition. pipe manufac- by original balance of the was the pipe wrapped was a critical part defendant Proper wrapping turer. to meet contract finishing specifi- the pipe. Proper wrapping, corro- standards, prevent cations was crucial industry sion. the the to complete
For to be usable defendant had pipe First, the had factory coating manufacturing process. part i.e., removed, inches of the were removed wrapping to be metal, The now a edges then "feathered". exposed end, be remove thoroughly foot on each had to cleaned scale, rod-flux, oil, foreign or other rust, welding grease slag, material. get
The meticulous was to cleaning such purpose not primer. surface for a bond with That was good proper 7, 333-43, The were joints VRP vol. at 346. properly. done 5, at then welded. VRP vol. 319. applied pipe was to be bare primer
Next coal-tar After wrapped pipe. drying and the mill area of "flash Then the and the pipe material is flamed". bare is it is mill area exposed wrapping spirally wrapped. Again Then applied. "flash flamed". Coal-tar enamel is a specified 4, Exhibits joined Kraft is over the paper wrapped pieces. 24, 30. vol.
The is the coal-tar VRP important layer primer. most to contain no asphalt. at 325. The coal-tar enamel was used a enamel which con- cheaper Exhibit 24. Defendant thick- The called for a certain asphalt. specifications tained less Defendant one-third coatings. applied roughly ness 5, at VRP vol. 273-83. specified. than be should manufacturing pipeline system standards, an electricаl according industry inspected, Exhibit 20. From to detect defects. coating device in later fair coating defects discovered it is a inference that this An step process integral part done. the construction of the pipeline system damage avoiding to the protective coating system placing place. *13 Exhibit at 20. There was evidence of to the abrasions VEP at vol. 203-04. coating. determinative issue whether was there evi
dence or reasonable
arising
inferences
therefrom to sustain
a
in
verdict
favor. The
plaintiff's
evidence must be consid
light
Keck,
ered in a
most favorable to plaintiff.
v.
Shelby
911, 913,
Wn.2d
Applying definitions of the words to defendant's activi- ties leads to the firm conclusion that was a it jury question whether defendant was a manufacturer. an Defendant took unfinished unusable use product, labor its made economically materials valuable. That is one definitions "produce". Defendant altered the unfinished material and put together components make a finished That product. is one of the definitions of "make". Defendant formed a whole by uniting That is a definition parts. "fabricate". Defendant put together constituent after parts, manufacture, their completing so as to make or create some- i.e., a thing, pipeline system. usable That is a definition of "construct".
We hold that there was a jury question whether defend- a ant was manufacturer under the contained in definition own instruction. defendant's
However, we address other contentions defendant. Defendant were argues that sections a but pipe product, Further, the constructed not. defendant con- pipeline was tends the not a within the definition of pipe was "product" 7.72.010(3). act. product liability RCW product
Defendant no instruction proposed defining though even was used five in product separate word (CP), 694; 2; structions. Instruction Clerk's at instruc Papers CP, 16; CP, 708; tion at 5; 697; 17; instruction at instruction CP, 709; CP, at Defendant took no 18; at instruction 710. or of a defini- meaning about the the lack product exception its special vol. at 661-77. The juiy thereof. VRP tion a which was product form found defendant supplied verdict Clerk's reasonably safe. 726. Whether Pаpers, was is not material product pipe completed pipeline It is exception under the instructions to which no was taken. when instruction suggest too late to definition no appeal subject. on that proposed if it then every Defendant is a manufacturer argues subcontractor, it a electrician or carpenter, gas pipeline be be Brief of at 41. will a manufacturer. layer, Appellant, of hor- "parade There are several reasons defendant's why First, provided by is not accurate. it is definition ribles" Second, to its in this case. defendant which activities applied instructions, case, this a manufacturer under the to be seller, found it juiy had to be a which the product defendant will carpenter usually A subcontractor electrician or to be. Third, and most product importantly, not be seller. *14 will not be the completing electrician carpenter generally The uses two or manufacturing merely electrician process. more and manufactured already completed products starts joins together. them For the electrician with example, which is a manufac- panel complete fully the service complete in and of itself. Electrical wire is a product tured itself, of is a light manufactured in and as fully product The does to the manu- nothing complete fixture. electrician does any of these The not components. carpenter facture lumber, but makes use manufacture complete already in its manufactured form.
Using the of defendant's instruction language make, does not fabricate or construct electrician produce, or the Tb the extent that the electrician parts. would the finished there be products, assembled carpenter instruction, case, in this where the no under liability "A that: seller who performs was instructed juiy product in accordance with manufac assembly product minor not deemed a manufacturer." turer's instructions shall be 17; Instruction Clerk's at 709. The Papers, jury had the to with opportunity agree defendant's contention that it was merely assembling pieces pipe. Defendant argued that to the point jury, urging putting someone else's prod- ucts together did not make it a manufacturer. VHP vol. 753. The jury is presumed have followed the court's instructions. Bordynoski v. 97 Wn.2d Bergner, 335, 342, 644 P.2d 1173 its jury, by special verdict, did not accept defendant's It is not our argument. function to sub- stitute our evaluation of the evidence.
Next, defendant complains that the trial court erred its failing give proposed instruction 4. This instruction would have defined "installer" and would have informed the jury that any claim based upon defendant's activities as an (the installer was barred aby statute of limitations statute of repose). The trial court correctly concluded that the jury should not be instructed about the statute of repose, as the question whether it bars suit is a matter legal for the court although a trier of fact may have to decide factual questions. The trial court correctly rejected the improper instruction.
Moreover, under the instructions given defendant was
free its
argue
theory its activities in
installing
were
pipeline
activities
manufacturing
subjecting defend
ant to liability. See
Seattle,
v.
Phillips
Wn.2d
(1989) (instructions
products liability repose, safe life of 12 including life" of a the product, presumptive years. argue From these instructions defendant could manufacturing. was not fault in It fault "installation" be jury's then function to instructions apply would nonliability. and decide defendant's theories the evidence the trial court allow- Defendant erred complains introduced defendant's instal- respecting evidenсe be ing The trial con- activities. court was lation construction find way about this but could no realistic question, cerned reasoned, moreover, the evidence. The court segregate free to its that it was not a argue theory that defendant was manufacturer. trial not err in allowing
We conclude the court did be Generally, admissibility trial. presented evidence inis the trial court's rulings evidence discretion and its of evidence reviewed admissibility under the abuse Co., Brouillet v. Cowles 114 Wn.2d Pub'g discretion standard. 788, 801, 791 P.2d ruling the trial court's agree segregating
We with and "construction" activities would have "installer" activities case, and more confusing difficult this exceedingly been For introduced plaintiffs to the than jury helpful. example, kind of wrong to the effect that defendant used the evidence fill dam- burying fill in chunks in the pipe, sharp thereby and that corrosion wás aged pipe's coating, however, until was not complete, accelerated. The project buried, and then it within was until was still pipeline Boeing control. The finished item turned over to defendant's There the buried the entire was pipeline, pipeline system. close com- question as to when manufacturing thus pleted.
Moreover, would given fragmented have been in this attempted the facts case the trial had court account from "installation" "construction" activities to segregate conduct activities. Some of defendant's "manufacturing" activities, evi- clearly both said to constitute could be
265 as jury manufacturing activity dence which the could view been should not have excluded. noted, was free to its argue
As we defendant theory have i.e., did not it to installing activity subject liability, that its "manufacturing". that it not The instructions permitted was as the trial court noted. argument, We conclude the trial court did its discre- not abuse on tion in of ruling admissibility "installing" evidence of "constructing" pipeline. note
Finally, we that defendant error assigns giv- (which 2, 5, of ing 17, instructions 18 instructed the on of a jury liability seller or a manufac- product product turer), and to verdict form which submitted theories of seller and liability manufacturer to the jury.
However, defendant does not that these complain instruc- tions about products are incorrect statements of the liability law. Instead, defendant the case should argues not go under products liability We have con- theory. however, cluded, that under the of circumstances this case plaintiffs' cause action barred the statute repose.
Amount Verdict We now turn to defendant's to the amount of challenge awarded damages plaintiffs.
Defendant first out argues that award is so of propor- tion to the husband's it should shock the con- injuries science of the court. Defendant does not state the principles involved in an examining award this Defendant ground. cites no Washington case, case a Court except Appeals Winfrey Co., 722, v. Rocket 58 Research Wn. 794 P.2d App. 1300, denied, review 115 1030 That case did Wn.2d not involve review of the damage Only part award. one sentence even is not injuries. describes the The case rele- vant. Defendant cites three federal cases and circuit court two federal trial court decisions. Defendant fails to note in federal is different standard review courts from our standard. in Felder v. principle This discussed 266 (9th 657, 1976), States, 664 Cir. where the
United
543 F.2d
erroneous standard of review rather
clearly
court applied
than the standard of the state whose law was otherwise
If
were relevant we
note
federal cases
would
Dab
applied.
(8th
Co.,
Cir.),
&
761 F.2d
ney Montgomery
v.
Ward
denied,
88 L. Ed. 2d
S. Ct.
474 U.S.
cert.
(1985)
affirmed a
million award which
where the court
$2
"
trial. The
noted
was twice the verdict
the first
court
'we
disparities among
substantial
as what
expect
juries
must
*17
for
compensation
types
pain
constitutes
certain
adequate
"
at 501
Vanskike v. Union
suffering.' Dabney,
(quoting
and
(8th
1984)).
R.R.,
1146,
Cir.
Pac.
725 F.2d
asks
to
this award to
compare
Defendant
then
us
in
are
those made
10 other cases. Nine
cases
unre
verdicts,
in
and
superior
trial court
seven
courts
two
ported
in
district court. We
defendant's
invitation.
reject
federal
First,
verdicts;
it is not
to cite
trial court
unreported
proper
in
without relevance
Even if
appellate process.
are
they
inclined make such
is no
we were
to
there
basis
comparison,
is no
for
There
record of the
comparison.
proceedings
no
All
provides
cases. There are
briefs.
that defendant
those
describing injuries,
is
lines
from
summary
apparently
a few
Jury
Brief of
publication,
an
Verdicts Northwest.
unofficial
A
is impossible.
63.
valid
Appellant,
comparison
Second,
defendant's
reject
underlying premises
we
these dam
argues
such
Defendant
urging
comparison.
dam
"general
excessive because since 1987
ages
grossly
have
exclusively
in excess of million
almost
age
$1
awards
infants
suffer catas
adults who
young
been awarded to
function in
their
injuries
ability
so terrible
trophic
will
severely
permanently compromised."
this world
be
(Footnote omitted.)
theory
at 63. This
is
Appellant,
Brief
justice.
inimical
to the foundation
particularized
injuries
for
consign damages
personal
Defendant would
effect,
In
balance sheets.
accounting
the cold world of
what
a
can never exceed
has
argues
defendant
verdict
for
conceives to
been
what defendant
historically
awarded
—
a
injury
so much for
particular
be comparable injuries
more,
is repugnant
and no
ever. That notion
to a fundamen-
tal
so
stated
well
Justice Hale in James v.
principle
864, 869,
Robeck, 79 Wn.2d
Defendant cites
for
validity
compari-
no
of a
authority
son of
a
appellate
verdicts as the
standard to evaluate
claim
However,
of excessiveness.
is a
body
there
considerable
rejects
law which
such
We find it
comparison.
persuasive.
National
juries
Rodriguez
the same scale.
factual determination
invasion into the realm of factfinding. [Citations.]"
cases based
cases demonstrates that
the award is excessive
puts
[529 P.2d
argument.
Finally,
"The vast
it,
654-655
awarded to other
"precedent
General
v.
[defendant]
upon
variety
McDonnell
[151
118 Cal. Rptr.
. . For a
different evidence would constitute a serious
Corp.,
shattering."
*18
Cal.Rptr.
.
[of
spends
because
supra,
Douglas
plaintiffs
injuries can seldom be measured on
damages]
disparity between awards in
reviewing
399].)
considerable
. ..
13 Cal.3d
it is
Corp.
[T]he
for other
on the basis of what other
Further,
excessive,
"[i]n considering whether a verdict
is
a
comparison with previous verdicts is not
because of
justified
the variations
in facts and
in
Mote
changes
the economy."
(1973).
Johnson,
v.
berg
28, 34,
297 Minn.
Even the would be comparisons inadequate. defendant's permitted, Co., v. State Farm Ins. 499 2d For in Thomas So. example, (La. denied, 1986), certs. 501 So. 2d 562, 564 Ct. App. out that the award (1987), pointed 501 2d 215 the court So. awards, to the mass greatly past must be disproportionate court uses appellate past not If an past selected awards. do the same to excessiveness, it must evalu judge awards Lou-Con, 461 See, So. 2d ate Landaiche v. inadequacy. e.g., (where (La. 1984) court, the a using Ct. App. method, from by percent, increased an award comparison $850,000). $500,000 of a is assess the amount improper
We conclude
it
in other cases.
verdict based
with verdicts
upon comparisons
summarize
govern
now
the
which
principles
We
an
court of verdict claimed to be
such review
by
appellate
v.
Harbor
by Bingaman
Grays
excessive. We
guided
(1985),
269 passion prejudice Before justify can jury reduction of a verdict, it must be of such manifest clarity as to make it unmistakable. ... The issue thus becomes whether the size of the award for pain court." Stated suffering and in and of itself "shocks the conscience of the otherwise, were the damages flagrantly outra- geous extravagant? (Footnotes omitted.) at Bingaman, 835-37.
Although defendant maintains that the verdict should
shock the conscience of this court, as noted defendant does
not state the relevant principles. We start with the estab
lished
premise
determination
damages by
is a
jury
constitutional
function of the jury.
v. Fibre
Sofie
board
636,
112
Corp.,
Wn.2d
771
P.2d
Given the foregoing constitutional principle case precedent, appellate review is most narrow and restrained — the appellate court "rarely exercises this power." Binga man, at 835.
Does the size of the verdict shock the conscience of the otherwise, court? "Stated were the damages out- flagrantly rageous and extravagant?" Bingaman, at 837.
Defendant's only challenge the award is 10 factual lines what describing plaintiff do, can all without citation *20 plaintiff's is of description
the Here defendant's record. injuries: He is has to full-time work. Washburn returned Norman fully He to paraplegic. is not a is ambula- quadriplegic. not a tory. He He has [sic] He no artificial devises function. requires speak He and to capabilities. mental is able to to listen
full beings. feed He has all five He can and clothe himself. other senses intact. family He is able to five and interact with his minor at the the only [sic] He was 53 time of with accident. He limitations. expectancy. has a normal life Brief at 60-61. Appellant, of contrast, the injuries
In sets out detail plaintiff at Defendant Brief of 5-11. by plaintiff. Respondent, suffered the thereto; no defendant concedes thereby makes reply nature, extent, and per of the accuracy description of and their substantial injuries the manency support evidence. evidence, as does acknowledge,
As we turn to the we court, "tied the 835, an to Bingaman, appellate at the or record", the of experiences written cannot share Therefore, it persuasive is relevant and the trial court. find reasoning observations the trial court's consider the verdict not excessive: ing verdict was excessive the regard In to the matter whether indicated, many dynamics were not, there or as the Court has the it jury to come to verdict at did. It's that would lead the play here strategic counsel on secondguess not role to the Court's is made, point decisions but to out that verdict is the end product of factor in a trial but particular one involving advocacy an situa- things result of combination very, very calling
tion, involving strong a case that was a case testimony And Mr. and Mrs. damages. out for Washburn's testimony they through of the ordeal was Washburn's very went an compelling way but not in a that the felt led to Court overly jury. award from excessive emotional jury obviously responded the Washburns' situation they say [that] Court its conscience but this can't shocks job in the is not they manner did. The Court's responded say or is it even thing Court have done the same would do, high end the Court would range the Court's what job indicate that say Court's is to does this verdict but the on, play was at something going some emotion untoward driving evidence, that was the result rather than the Court say can't that was the case. Posttrial Motions vol. at 32-33.
Also, deference
weight
given
the evaluation of
the trial court's exercise of discretion in
a new trial
denying
on a
claim
Bingaman,
835;
excessiveness.
Sherman v.
(1960).
Seattle,
233, 247,
57 Wn.2d
So. 2d 202 The trial court here denied defendant's motion for a new trial.
We now describe plaintiff's injuries and then assess defendant's arguments. Explosion the propane system *21 resulted in wall of fire. Plaintiff literally was on fire with co-worker, Holmes, his skin off. His falling whom he tried to help, off; had his hair binned "flames were out shooting from his whole body". VRP vol. at 160. Holmes' skin was yellow, down, off. peeling just falling
Seventy burned; percent plaintiff's body was fifty fifty-five percent of his had third body degree bums where the entire epidermis and dermis are destroyed completely and the skin has no ability regenerate. Plaintiff was burned on his scalp, face, neck, chest, back, buttocks, thighs, back, bottom) front and both hands (top and and areas of both arms. Plaintiff’s condition was critical and he had a 50/ 50 chance of survival. The emergency medics inserted a tube into his lungs so he could breathe.
Plaintiff was in the hospitalized Intensive Care Bum Cen- ter at Harborview Medical Center 6 weeks; for he remained in the hospital month, another out of intensive During care. his initial hospital stay six plaintiff had separate surgeries. Four additional occurred in the surgeries next 16 months. surgeries are as summarized follows: — Surgery skin;
10/20/86 grafting removal of dead of but- tocks, back, right thighs, and anklе. — Surgery skin; 10/21/86 removal of dead grafting of both legs thighs. and — Surgery skin; 10/24/86 removal of dead grafting both hands forearms, left upper arm and left abdo- — upper arm and lower abdo- right men. Donor sites men. — skin; grafting from removal of dead Surgery 11/04/86 lower right to artificial skin on chest donor site extremity. — skin; grafting of artificial Surgery removal of 11/14/86 site. chest donor right wrist and left flank from — eye lid movement. permit Surgery incisions to 11/26/86 —site left Donor open scalp wound. Grafting to anterior chest. — spaces Web Harborview. Surgery readmit 02/10/87 Grafting both hands. and released. hands incised — Harbor[view]. Release con- readmit to Surgery 07/07/87 hand. grafts to left tractures — Bum Surgery readmit to Harborview. recon- 10/20/87 hand, right grafts; five reconstruction struction of lower eyelids. — Surgery readmit to Harborview. Incision 04/27/88 grafting of both hands. 15,37, 8-9; Brief of at exhibits Respondents/Cross Appellants, 38. plaintiff's described personnel medical attending
Various attention; he constant Plaintiff required treatment. hospital Intensive care for himself. nothing almost able to do room" where dressings the "tank included treatment to cleanse the scraped removed, sprayed the patient trimmed away, tissue is and new wounds, dead or infected — 2- process daily.'VRP or 3-hour twice dressings applied 4, at 64-65; vol. 234. One nurse stated most vol. ever have in pain they find it is the worst kind of people life. their *22 (Intensive ICU Care develop such bum victims
Typically Unit) con- disoriented and where become psychosis they 6, vol. at 68. Plaintiff incoherent. VRP fused. became a breathe, to hooked to a ventilator Initially plaintiff was bladder, feeding IV and a hookups was in his placed tube eyelids on his Burns and scars were inserted. tube were deeply from His hands closing. his eyes prevented In said: "We extensively. fact, one doctor grafted and burned different operations his over about five body most of grafted he VRP hospital." was in the two months dining as "the worst pain described the 6, 110-11. The doctor at vol. imagine can ever . . . it's horrible pain they possibly having dreadful, 6, horrible experience ... a . . .." VRP vol. at pain describing 112-13. In the ICU "he psychosis, one doctor said [the out lunch psychosis] went to the fourth or fifth day 19 or and didn't come [October 20] back until he down- went stairs, ICU 6, [November out of the VRP vol. at 25]". 113-14. damage
The extent of the burn was described aby doctor who stated that his is "actually body whole involved because what is a wasn't involved with the bum involved as donor site, so a essentially percent body hundred of his was in 6, some involved in . way the care the bum . .". VRP vol. at 124-25. plaintiff regained
When consciousness at some point family saw his and relatives he "I be thought must 4, to VRP going die." vol. at 232. Later he repeatedly asked — to be awakened they "[i]f because wouldn't wake me I up 4, was kind of afraid die." VRP vol. at 236. This type fear as an Bingaman mentioned element damages the jury Bingaman was entitled v. Grays to consider. Har 831, bor Comm'ty 837, 103 Wn.2d 699 P.2d Hosp., After the initial hospitalization, plaintiff 2-month began physical and occupational therapist One said that therapy. involved in pain this would be a type therapy ”[o]n scale ten, of one ten VRP vol. plus." 227. The therapist testified plaintiff's hands were some of the worst she seen, had because of part been burned on having both sides. Some areas his hands had not yet healed. Lots gauze was "all over wrapped his VRP vol. at 191- body." himself, 94. He himself, himself, could not dress toilet bathe care for wounds or his drive. He was able feed himself in a only primitive manner, fairly having very difficult time holding utensil. VRP vol. at 194-95.
Initial focused on the therapy entirely range motion hands, of his maximum function with the therapist's strength used in on each pushing joint stretch skin — structures an joint hour for each hand. The ordeal was such that therapists very alternated because "it
274 in a ... is days inflict on someone 5 row It pain
difficult to times, At the skin in the ... would tear painful. extremely 4, there wasn't skin." VRP vol. enough because process 197. a with required wearing splint during night
Therapy degrees. hands and the knuckles bent at 90 wrapped his and his thumb fingers apart Because would not come rotated, a to fingers was device had to be hooked over his as spread extremely painful It was fingers apart. 4, at fingers. VRP vol. open involved maximum his piying ridge scarring, 199-201. There with multiple problems were This down and wrist down. pulling finger the little 4, vol. at 202. VRP required splinting. flexion to increase the or employed devices were
Special to obtain paraffin wrapping in hot of the hand fisting — the more devices or methods". VRP painful "one of fisting a to Gloves had to be worn 24 hours day vol. at 204-05. from on his hands. Plain- scarring forming ridges help keep dexterity nor strength put tiff had neither 4, at VRP vol. 205. gloves. those of a foot toe drop; also involved treatment Therapy walking plaintiff so up plaintiff not come when would He had high to lift his or he would fall down. leg very had The device bending. his ankle from keep wear a device into" his because edema. "dig leg would damage. also described the therapist psychological do as "how you the most obvious: She described self-esteem and then how your first yourself body image feel about your changes because change physical appearance does a change is] .... psychological [There ... is a permanent [i]t fear component death]. near There is also a [of impact being . life of the daily to be like. . . going [i]n of what life your 4, at VRP vol. 208- anymore." is routine family. nothing . . 09. legs stretching plaintiff's also involved painful
Therapy trunk. VRP vol. at 203. January from December 1986 to extended Therapy a of 182 week, day, 2 hours each for total at least days addition, plaintiff perform In had various exer- sessions. home, days week, 3 hours a day. cises at about Long-term, permanent plaintiff's effects injuries *24 and analyzed by attending physicians, were described occu- physical therapists, a clinical pational psychologist spe- rehabilitation, cializing nurse, a care planning registered wife plaintiff, plaintiff's and their son. to permanency,
As of the Bum Center at director Center, Harborview Medical one of the attending physi- cians, described it . .". succinctly: "Being burned is forever . 6, VRP vol. at 117.
Plaintiff's bums were so all only that not were deep of layers the skin but fat cells destroyed, destroyed; were do they regenerate so the skin is a grafted without "cushion". Because of he this has little in many sensation so areas he is unable to use the feeling sensations normal skin. Thus he "bumps" objects. into Because of that condi- tion, even such as slight impact, scratching or bumping objects, leads bleeding. pours 7, "[B]lood out." VRP vol. at 405. He glove wears a on one hand almost His continuously. hands at bleed work a lot. permanent
Plaintiff’s sсarring extensive. His are hands with completely grafted significant scars. From slitting graft skin to and the it, to hold there staples permanent over scars much of his including his whole lower body, back and upper extremities. His legs completely grafted were sides, both as well as of his part thighs. The doctor summa- got rized: "he's permanent scars inside and outside that just don't go away when out of the people get VRP hospital." 6, vol. at 127. He wears tinted glasses with clear partially lenses to hide the scarring around his eyes and on the eyelids.
Plaintiff has face, decreased sensation in his his eyes water and his constantly, nose but he is drips not aware it so his signals 6, wife him to his nose. VRP vol. at wipe a 250. He has loss of hands, sensation in his as well as 6, around the anus. VRP at vol. 253-54. Because this his 6, wife has to clean him after bowel at movements. VRP vol. 254. motion, range including difficulty
He has limitations "so difficulty much with his hands". VRP kneeling, — 213-14, He has hits walking at 229. "he 4, problems vol. 6, at has and he falls." VRP vol. 260. Plaintiff devel- things his fear of and not be able to control "being up high oped very strong anxiety VRP vol. and he "has a body", to his vol. at 293. eyes being reaction covered." VRP related, objection, plain- The clinical without psychologist accident", tiff's from the wit: descriptions "problems said, I my body, I'm I'm ashamed about how He ashamed of hat, I I good. I I wear a have thing [sic] look. used to looked I I have my head. used to swim. spot bum on the left side fingers kneeling, my require extra problems scars. I have big — lot, things. I bleed I feel, pickup hard to push I can't down pours out. myself and scratch blood wife, his he I relationship with said I asked him his about erection, macho, if I have an I I tell have try to be can’t burned, he his look, points I'm from I to ask her. have body graft. if contact is there. It's all I can't tell chest down. *25 body. all feeling always says a woman's She it is warm for Not said, referring the It marriage. And sexual side of right. he you perform. it can't . . not to do if . is best He swim because him about activities. said he didn't Asked stumps over walk like he used to can't climb and of scars. He him hunt and takes good helps he have a friend that but him. does 7, VRP vol. at 404-05. (1) descriptions: these
The clinical psychologist gave oriented, is a work tough, in Mr. Washburn we see "[W]hat rehab, [sic] hard extraordinary worked person honest who know, deal work, great with a you as gone who has back (3) (2) "And he life"; of his disability"; "He lives fearful traumas from some of emotional fives still detached (4) "In we through"; my judgment been things he's a on what’s happened, pretty either what he focuses seeing it, doesn't focus on ... or if he reactive powerful depression detachment, away a pulling a a then it is disengagement, a and that's not have happened, from the that things (5) 7, 413; at "there is post VRP vol. way five", healthy here." trauma stress, powerful has been really trauma 414. VRP vol. 7. at lot of "he feel like fatigue;
Plaintiff exhibits a doesn't vol. He has very VRP at 259. become doing anything". his as well as dependent upon emotionally physically. wife real hard for him to be out in the world". VRP vol. "[I]t His at at 290. friends have decreased in number. VRP vol. 290. aspects
Other losses are illustrated plaintiff's following the care nurse: testimony from Q: self-image, What about you that was one of the issues about, self-image following asked Mr. Washburn's injury? Yes, again, many
A: that died with different self- areas. His image had to do with his independence level of and striving independent perhaps to be and doing things that sometimes, might ought safety he not to do for reasons. That he wants much to build something, so be able to try he will things pretty do, he is sure he and can't watches, then his wife when something she sees like happening, usually then runs she out there has to with do something crawling ground getting underneath can, really and she is not sure he has the sensa- — tion to do a particular change task. It has to do self-esteem has same do to with the he fact that doesn't feel the kind of relationship any longer, with his wife physi- relationship. cal He's not help able to other people, and very I consider important aspect this of planning for a man him care. That this is need we to find for something that he can do to other help people because himself, he defined age fifty, that's how has he is probably that's not a going change that much. And right now life, part his but that would be one of the begin working areas to towards. veiy, He's very, very about body embarrassed his has difficulty tremendous as far I'm with as concerned allowing body. someone to look . . . аt his 6, at vol. VRP 290-92. *26 nurse
That added another dimension to the long-range damage: Kerrick,
Q: your Washburn, Ms. in Mr. assessment of did he any you losing relate wife? fears to left alone his being about or — Yes, my one of A: Yes. concerns is that we need someone begin [sic] to be him planning thinking needs with about he if his him. would do wife were not available to what mean, be, get could I she could sick and then he And it man, a alone I think more than very would be much alone he make he recognizes. he And tried to humor out of it and — well, know, you know, my I if I said don't didn't have way wife, there is no other woman that would want me the — jokes I he he but he Basically, look. doesn't about it some- person doesn't feel that he would be an attractive for I think has a very one else and don't he clear awareness be point much his wife does at this and if she should how him away, cope help he need a lot of then would intervention strategies. develop and some with that new 300-01. VRP vol. at years old,
At of the accident was 50 plaintiff the time had main- Boeing in the and worked at as a Navy, served steadily since 1973. He and plaintiff-wife electrician tenance sons, been married about had three two of years; had health, alive. Plaintiff was in had a good never whom illness or accident and was an active major major person. that Plaintiff's life was 22.89 remaining expectancy years, of his 29.53 wife, years. itself
It is the amount of a verdict and of that apparent it Rather cannot sustain a conclusion that is excessive. case, a particular plaintiff inquiry particular relates a at Amount damages proved with trial. injuries those million excessiveness; the fact that is $8 alone equal cannot mind point. is beside the Bearing large money sum of at this and our declared point, function very our limited with the decision of a it should jury, interfere reluctance is the rare case where we should substitute be indeed for that of the judgment jury. our must verdict, court jury modifies appellate When an is second-guessing jury. it plainly be admitted has not "[t]he tells the law instruction damage fixed which measure by with standards furnished us reference to these matters disability. or suffering With pain, evi- judgment, own governed by your you must be 19; case, Instruction thеse instructions." dence in the is Here, there there no claim Clerk's 712. Papers, evidence necessary error instructions Therefore, an exist. disability does suffering and pain, *27 court, if appellate verdict, it increases or reduces a is neces- sarily that holding award is its governed by judg- own ment, not that of the jury.
It is for these reasons that the court will not interfere unless the verdict does so shock its conscience that it can say conscience that good were damages flagrantly outrageous. What is the of these meaning words? The dic- tionary relevantly defines "shock" as "a sense of outrage one's convictions . . . something horror, causes outrage, stupefaction . . .". Webster's Third New International Dic- tionary 2099 Synonyms for are "mon- "outrageous" strous, heinous, atrocious". It describes that which is "so flagrantly bad that one's sense of or decency one's power suffer or tolerate is Webster’s, violated". at 1603.
The trial court heard and saw the entire Its proceedings. conscience was not shocked nor is the conscience of this court after a full review of the record and the exhibits. There is no justification for substituting our judgment for that of the properly instructed jury as to what would rea- sonably fairly compensate the plaintiff.
instructed that the law has not furnished any fixed stan- dards by which to measure pain, suffering disability. Neither has the law furnished this court with any fixed standards.
Finally, defendant argues separately that the verdict was the result of passion and prejudice. Defendant cites brief testimony about plaintiff and his family, describing testimony as concerning "outside events" in plaintiff's life. These were facts related by an examining psychologist as of his part evaluation. None was objected to and defense counsel cross-examined about part of those facts.
Ib show passion and prejudice defendant also objects plaintiff's counsel "emphasized Washburn's heroism to the jury." Brief of Appellant, at 66. Counsel was describing plain- tiff's actions in trying save his co-worker and remaining alert enough warn others to turn off the propane. Counsel argued "that some gives you measure of the man." VRP vol. 8, at 727. The weaknеss of defendant's claim of passion one on the use of its reliance is demonstrated
prejudice
Defendant
word, "heroism",
argument.
out of 65
pages
on the
argued
counsel
to advise us
neglects
defense
forget
said: "Don't
Defense counsel
of "heroism".
subject
Mr.
think also of
but
hospital,
those
photographs
He is a
is a hero.
as a resilient
individual who
Washburn
vol.
back." VRP
way
fought
hero with the
he's
personal
*28
closing
of
plaintiff's
No
was made to
objection
747.
of the record
on
only
part
Defendant's reliance
argument.
less than candid.
on this
point
can justify
or prejudice
The rule is clear. "Before passion
manifest
verdict,
must be of such
of a
it
jury
reduction
v.
Bingaman
Grays
as to make it unmistakable."
clarity
831, 836,
Defendant enjoy can still and Norman fered, asserts "Sharon but of Appel- Brief marriage." of their 30-year companionship instruc- damage to the lant, exception at 68. There was no plain- consortium to the loss of Included therein was tion. includes instruction The court's wife of her husband. tiff's this definition: of fellowship matrimonial means the The term "consortium" to the spouse [sic] one right and wife and the
husband matrimonial the other and aid of company, cooperation, services, affection, care, [sic], relationship. It includes loves society companionship, including sexual companionship, as well as assistance to the other. spouse from one The recited evidence at 711. 19; Papers, Clerk's Instruction which those elements to all damage extreme demonstrates jury. before the properly were verdicts. uphold
We
281 Photographs of Admission Defendant trial its argues court abused discre- tion in 7 admitting plaintiff of photographs photo- co-worker, graphs plaintiff's Holmes, Scottie who died from bums 10 hours after explosion. argu- Defendant's ment raises issues. separate Photographs
Admission of Plaintiff We first consider admission of photographs plaintiff. Defendant states that defense counsel to these objected pho- tographs plaintiff horrible, "as being highly inflammatory, (1 unduly gruesome RP repetitious. 55-62; RP 119)." Brief of at 54. Appellant, Defendant states further: "The court admitted all 78 without whether considering their prejudicial impact outweighed their relevance." Brief at 54. Appellant, Defendant's representation of the state of the record is not tme. simply
Defendant first cites volume of the Verbatim Report of Proceedings pages 55 62 in of its through support repre- sentation. On those counsel and the pages mainly court discussed the Holmes photos, those As stated plaintiff. above, defendant now claims that objected to plain- *29 tiff's "as photos being highly horrible, inflammatory, unduly gruesome and repetitious." Contrast what counsel defense actually sure, said: "Mr. photos, Washburn's that happened to Mr. Washburn. As much as it hints me aas defendant to that, have this jury fair, honest, see that is that is but not the 1, Holmes' photos." VRP vol. at 60. On the next page defense counsel makes another photos statement about of the plaintiff: [defense I counsel]: Could add one caveat to the
mr. beecher photos Heinbock will use a my understanding of Mr. Washburn? It is that Mr. of photos, may number those be there these, just ones, may there be additional but if I the have feeling right here, he getting repetitious I the would reserve request to that the least photos Court at limit the to — unduly where we don't repetition repetitious have photos. VRP 1, vol. at 61.
282 objections to about
Contrary representations defendant's 1 of trial, Report Proceedings at volume of the Verbatim of the shows that as to admission actually photographs fair, Washburn, "that is Mr. defense counsel said: is 1, the right VRP vol. at 60. "I would reserve Again, honest". to at least limit the where photos the Court request — unduly have VRP repetitious photos." we don't repetition 1, 61. vol. at Report 6 the Verbatim
Defendant also cites volume 119, record there claiming at 109 and Proceedings pages "as plaintiff to the objected photos shows defendant horrible, inflammatory, unduly gruesome repeti- highly at defend- tious." What thе record shows cited page (and ant, vol. Report Proceedings page Verbatim 108) as photos single offered page plaintiff counsel stated: exhibit. Defense In long they repetitious. as aren't objection, . . . No as objection I no to the exhibits. principle have Well, I Mr. at the afternoon recess will see what the court: by repetitious and deal [defense counsel] Beecher means it then. with recess, VRP at 108-09. As at the afternoon promised, vol. place: out of the took presence jury, following you photos], [the In to that regard Exhibit the court: I you objection except repetition, no as said had — repetitious if meant the slide you wasn't sure It me that the time we I think it's fair. struck mr. beecher: — it's mostly really we photos, legs, arms and get 78 thing and over. If there is an much the same over pretty — certainly that, perceive I stand that I don't answer corrected but would understand adequately think that for the recovery during the nature of bums fully. In I this not show it other and think that does process, time, on, mostly early it's cover the whole words doesn't it. . . as I understand . VRP at 119. vol. did not cover the thought photos
Defense counsel *30 his that these concern recovery expressed whole period, and over". thing much the same over "pretty were photos pointed counsel 6, However, at when plaintiff's VRP vol. 119.
283 months, that out the in fact were taken over 18 photos 6, "I defense counsel said: stand corrected." VRP vol. at 120. fair reading A and accurate of the record shows that defense counsel's was that the only objection tentative pho- not tos be His stated belief that the 78 repetitious. was were much same . . . photos "pretty mostly the it's thing early on, I 6, as understand vol. 119. It solely it." VRP at in that context he the not an expressed thought, objection, terribly "[w]e don't need 78 grizzly photos." [sic] VRP 6, vol. at 119.
Defendant's present about its representations objec tions is a photos gross distortion of the record.6 Any accurate reading record demonstrates 78 of photographs However, came in without plaintiff objection. even if the record could be read to an objection, show could only be on were ground photos "grisly" possibly reрetitious.
There was no error.
In
all
evidence
theory,
relevant
is admissible. ER
However,
402.
relevant
may
"evidence
be excluded if its
probative
value is
substantially outweighed
danger
unfair prejudice ... or
presentation
needless
cumulative
evidence." ER 403.
or
rejection
Admission
photographic
evidence lies
within
sound discretion of the trial court.
Inc.,
836,
v. Ocean
Toftoy
833,
Shores
71
Properties,
Wn.2d
(1967);
284 they accurately because precisely be injuries may gruesome Kesler, See Elliot v. happened plaintiff. what has depict 1990) (admitted (Mo. 97, photo- 104 Ct. App. 799 S.W.2d grue- were injuries and plaintiff's of accident scene graphs gruesome the accident itself was some, only because but trial permitted by embellishment and not because of court). The of
The
relevant.
condition
clearly
photographs
is related to
after the
body immediately
explosion
plaintiff's
Group,
v.
Indus.
Packaging
See Traver
damages.
plaintiff's
(1990).
574, 578,
876, 877
The
Inc.,
577 A.2d
Super.
242 N.J.
obviously changes,
injured person's body
condition of an
condition.
original
a record of the
preserve
can
photographs
Cantor,
Litigation
in Civil
Photographs
K
& B.
Hughes
See
(1973).
cases,
skin and eventual
In bum
of
grafting
490
occurs)
(to
will
improve
appearance
the extent it
healing
shortly
injuries
taken
after
areas; photographs
of burned
preserve
pregrafting, pre
will record
are incurred
Cantor,
492.
K.
& B.
Hughes
condition of
healing
plaintiff.
here were taken 5
after
days
of the photographs
A number
the first month.
showed
They
and others within
the explosion
at that
time.
body
of plaintiff's
the condition
illustrate the tes
are also relevant
The photographs
under
help
treating physiсians
timony
course of
and the
injuries
and nature of
stand the extent
an injury,
has described
Even where a witness
treatment.
making
descrip
value
evidentiary
have
photographs
v.
371 Pa.
Reading,
Super.
See Cervone
intelligible.
tion more
(admission
of
16, 20
286-87,
photographs
538 A.2d
279,
(citing
and after grafting)
wound before
open
plaintiff's
731
93,
Pa.
423 A.2d
Rinehimer,
Super.
283
v.
Fahringer
(1988).
586,
upheld),
denied,
cert.
Because the are relevant to material objectively issues in accurately portrayed case, the and and plaintiff's body the condition of and the treatment he under- probative great. went, their value is photographs The mere number of is not determinative. body, Plaintiff was burned over half his and most of the body remainder of his was affected because skin was har- grafting. vested for Treatment has taken considerable time — photographs sequence showing the are a of several series surgical рrocedures results of and other treatment over ISV2 They accurately depict plaintiff through. months. what went impermissibly We do not think the number excessive. Nor photographs impermissibly repetitious. They do we find the large part photographs plaintiff's shortly are in condition many parts body fire, after the and the affected, of his the sequential showing then sets course treatment healing. at the 78 thing
We also note that one look quite alone, look them in another photographs quite of the of the record. We conclude the trial court light rest its the admitting photographs. did abuse discretion Photographs
The of Holmes The trial court admitted seven photographs plaintiff's co-worker, Holmes, from Scottie who died bums shortly the trial court after the Defendant contends explosion. claiming pho- erred seven admitting photographs, irrelevant, cumulative, inaccurate, and unduly tographs At trial defendant highly prejudicial. initially questioned showed accurately plaintiff what photographs whether at the explosion. saw scene were at the The seven of Mr. Holmes taken photographs complained photographs counsel hospital. Defense what saw at the scene of portray plaintiff did not accurately shows Mr. Holmes' photographs One explosion. mouth, in his and Mr. breathing face with a apparatus substance gelatinous-looking Holmes was covered with his as save life. attempt applied part ruled exclude the photograph trial originally court face, day Holmes' but the next reversed showing Mr. ruling, explaining *33 — really it wasn't more that he reacting
I to the fact that was true, him, which is but I was not have the tubes didn't relevancy of the fact that that enough weight to the giving had face. Mr. Wash- only that we of his That picture was the memory deeply the is most has indicated that bum seeing [Holmes] and was in his own mind of Scottie burned arms, it would be a legs the or whatever. But not so much the somebody's face at a time like look at veiy human reaction to . . . that. is, myself that it on the balanc- reversing finding I am scale, prejudicial and should be allowed ing more relevant than into evidence. the court out kept photograph аt 182. The
VRP vol. most poten- and the shock had the least relevance believed at 184-85. tial. VRP vol. 4. of what the accuracy photographs
The of the question Mr. what i.e., accurately portrayed whether they depicted, of the the trial. Out saw, during came later up Washburn Dr. Heim- questioned defense counsel presence jury, (who in general, on bum care gave expert testimony bach bums, effects of and care of Mr. Wash- the physiological bum) was inquiry the of Holmes. photographs about Holmes accurately depicted about whether the photographs the accident site. as Norm Washburn saw him at plaintiff have had first that Holmes would thought Dr. Heimbach on, defense counsel some but when informed clothing (the was burned clothing clothing that he was free virtually tme, what he off), the doctor said that's that's "[i]f or blown looked like." VRP vol. at 122. The doctor explained in one which showed the difference would be only picture could not they cuts made because paramedics some rest of the Mr. Holmes "but get breathing properly, he have seen." VRP vol. pictures certainly are what would 6, at 122. "I I cor-
Defense counsel stated that think must stand 6, at rected, I didn't that was the case." VRP vol. believe counsel conceded 122-23. It is at least that defense arguable complain and cannot now accuracy photographs, case, Dr. Heim- inaccurate In any are they depictions. the trial court's conclusion testimony bach's supports at the Mr. Washburn saw what photographs portrayed Holmes were was evidence that he and ample scene. There (Mr. hands used his the fire Washburn during close together was Holmes), that plaintiff smother the fire on Mr. tiy with skin conscious, binning and that saw Holmes plaintiff together were close they as well as later when falling off fire out. after the ground evi- clear connection of other admissible Because of the relevant quite plain- photographs, they dence to the that when Mr. Wash- A testified damages. psychologist tiff's after the years to him over 3% described the explosion bum and the emotion accident, Mr. "tears Washburn's he could though almost as that he was pain experiencing, *34 though he could hear the voices it; it as he told as visualize very The real." VRP vol. at 403. screams. It was and the post- psychologist Washburn suffers from testified that Mr. among things, him, other distress, has left trauma which profound dying. A element of fear of substantial with damage memory plaintiff's ongoing of the awfiil is his burning including horrifying event, scene of Holmes the eyes. death before his psychol- photographs, the Holmes
When shown one of the ogist with the clinical inter- testified that it was consistent plaintiff plaintiff distress view he had with and the evident experiencing. jury help photographs under- the were relevant psychological profound plaintiff stand what saw and the resulting seeing burning impact plaintiff of his from jury help understand the died, who and to co-worker pro- plaintiff relation to his own effect that had on and its dying. found fear of unduly photographs complains are
Defendant running circles, Mr. Holmes cumulative. Plaintiff saw they binning falling him, off and then when both with flesh photographs ground. The are different were on the seven plaintiff Holmes, reflect what saw. views of Mr. and thus highly complains photographs are Defendant question pho- inflammatory grisly. There is no They plaintiff tographs very gruesome. reflect what saw, however, he horrible. and what saw was jury to look told the it had
Defendant claims that counsel
explain
photographs.
has failed to
at the Holmes
Defendant
plaintiff's
event,
error. In
the basis for this claimed
duty
jurors
to look at the
it was their
counsel did not tell the
plain-
photographs.
said to the
Plaintiff's counsel
by
it and
He has dreams about
tiff "has been haunted
this.
if
you
photographs
you
Holmes,
will
Mr.
choose to look at
(Italics ours.)
why
. . .".
he is haunted
this
understand
letting
jurors
explicitly
know
Also,
VRP vol.
at 725.
photographs,
they
dra-
had
to look at the
a choice whether
Johnston,
v.
minimized.
John Doe
matic effect was
Cf.
(Iowa 1991)
N.W.2d
32-33
(jurors instructed to listen to
but not to look at 21 color
testimony
slides of surgical proce-
*35
dure
if it
accompanying testimony
made them queasy; any
minimized).
purely dramatic effect of the slides
Defendant also maintains that
the seven
photographs
irrelevant because plaintiffs'
suit
is based on Mr. Wash-
bum's
physical
injuries
emotionаl
injuries resulting
from the physical
injuries. Defendant
in order to
says
assert a claim for emotional distress suffered as a result of
viewing injuries to a third person,
must be a
person
member,
family
citing Grimsby
Samson,
v.
52, 60,
85 Wn.2d
(1975).
530 P.2d
As we said in connection with the Washburn photographs, it is one to look thing at the Holmes alone, but photographs quite another to look thing at the Holmes photographs light of the entire record. We conclude that the trial court did not abuse its discretion in admitting the Holmes photo- graphs. we
Finally,
note most of the cases cited
defendant are
either criminal cases where certain
of the vic-
photographs
tim have been excluded or civil cases where exclusion of
photographs has been
upheld
brief,
review. In its reply
defendant cites a 1953 civil case where the
court
reviewing
held the admission óf a photograph of a decedent
in a
death
wrongful
action was error.
v. United
Ryan
Parcel
(2d
1953).
Serv., Inc.,
Share of Verdict To Be and were released Prior to trial three defendants settled settlement, Petrolane, Inc., $780,000 by plaintiffs. paid $520,000, and Wash- Gas Products Buckeye Company paid $210,000. As RCW required Natural Gas ington paid 4.22.070(1), fault all among in this case jury apportioned found that jury entities causing plaintiffs' damages. Petrolane, fault, defendant Beatt was 80 percent Inc., was 20 at fault. The determined percent *36 Gas, Natural Washington Gas Products Buckeye Company, were not at including Boeing) and other entities (expressly fault.
In that the trial court a cross contend appeal, plaintiffs judgment against erred the amount of the calculating fault- defendant Beatt. This issue arises because there is a defendant, at- free an at-fault and both plaintiff, nonsettling issue complex fault and fault-free defendants. It is a settling The trial court of first under RCW 4.22.070. impression against by calculating entered defendant Beatt judgment million, a result of of the total verdict of with percent $8 amounts $6,400,000, paid and then that result reducing by settling entities, $730,000, for a net amount of fault-free $5,670,000. argument defendant contends
Initially,
plaintiffs'
not
to the
presented
should not be considered since it was
trial court. "The
court
refuse to review
appellate
may
RAP
which
not raised in the trial court."
claim of error
was
2.5(a).
to the trial court
or theories not
Arguments
presented
Friend,
Hansen v.
will
not be considered on
generally
appeal.
476, 485,
(1992);
Marriage
While new
not
generally
considered
2.5(a)
the
of RAP
met
appeal,
is
where the issue
purpose
an
advanced below and
trial court has
to
opportunity
consider
rule on relevant
Bennett
authority.
Hardy,
v.
912, 917,
113 Wn.2d
Washington's rule the tort act of 1986 before reform and several joint liability concurrent successive tort- Peck, feasors. Washington's Partial Rejection Modifica- Liability, tion Common Law Rule Joint and Several *37 (1987). 233, 62 Wash. L. Rev. 235-36 Where liability was joint several, each tortfeasor was hable for the entire party harm and the could sue one or all of the injured to full tortfeasors obtain a Seattle-First Nat'l Bank recovery. Co., 230, 234-36, v. 91 Shoreline Concrete Wn.2d 588 P.2d (1978). 4.22.030, 1308 The was codified at rule RCW which to act of "[i]f the tort reform 1986 more prior provided one to a on an person than is hable claimant indivisible harm, claim for the same death or injury, liability such shall be and several." See Laws persons joint ch. 11. § and several joint rule when another liability developed
common law rule on provided contributory negligence no matter how was a part plaintiff, slight, complete bar to was whether a recovery. "Conceptually, question innocent to totally plaintiff should be recover permitted full amount of his or her from a whose damages wrongdoer conduct had concurred wrongdoer with that of another a produce single indivisible unallocable injury causally Peck, harm." L. Wash. Rev. 236. law,
At the common
contribution was not allowed be-
tortfeasors; however,
tween
this rule was
joint
increasingly
criticism,
and in 1981 the
subject
right
contribution
was established
with the
for
Washington
basis
contribu-
tion
being
comparative fault of the tortfeasors. RCW
4.22.040,
.050,
However,
.060.
where there was no
joint
there
liability,
right
several
was no
to contribution. RCW
4.22.050;
Parke-Davis,
584, 601,
v.
George
107 Wn.2d
(1987);
Co.,
P.2d 507
Glass v. Stahl
97 Wn.2d
Specialty
886-87,
The rule that plaintiffs'
was a
contributory negligence
rule,
bar to
like the
was
complete
recovery,
no-contribution
also
to criticism.
In
subject
1973 comparative negligence
was
under a
adopted Washington,
"pure" comparative
scheme which
negligence
allows
to recover some
plaintiff
if
damages
plaintiff's
even
fault
than that of
greater
Peck,
defendant's.
Largely adoption comparative negligence rule, argument developed against joint an and several liabil- Given that was no a bar to ity. plaintiff's negligence longer it was recovery, argued unjust impose joint and several tortfeasor whose combined liability wrong that of and others to the harm. "In other with cause plaintiff words, for harm done should be distributed responsibility to the fault of all of the involved and not proportion parties
293 Peck, L. of causation." 62 Wash. Rev. governed by concepts at 238.
In affordable addition to this concerns about argument, insurance were voiced to the See Laws liability Legislature. 305, result, amended ch. 100. As a RCW 4.22.030 was § liability that and several is the rule for liabil- provide joint there are and ity on an indivisible claim where concurrent successive tortfeasors as otherwise in RCW "[ejxcept provided (Italics ours.) 4.22.070 . 4.22.070 enacted as . .". RCW was of the tort reform act of 1986. part
Thus, to decide how much of the million verdict
$8
defendant Beatt must
we must examine RCW 4.22.070.
pay,
Our
is to construe the statute to
goal
give effect to the intent
of the
Yakima v. International
Fire
Legislature.
Ass'n of
655, 669,
Local
Fighters,
117 Wn.2d
RCW provide: (1) involving entity, In all actions fault of more than one trier of fact shall which is attributable to percentage determine the of the total fault every entity caused the claim- which ant's damages, including person suffering per- the claimant or defendants, injury incurring property damage, sonal party or third- defendants, claimant, entities entities released any liability immune from to the claimant and entities with agаinst Judgment other individual defense the claimant. shall against be entered released been except each defendant those who have liability or the claimant are immune from prevailed claimant or have other individual defense against represents the claimant in an amount which damages. share claimant's total party's proportionate liability only of each shall several and shall defendant be joint except: not be (b) party If that the claimant or the trier of fact determines damages suffering bodily injury incurring property fault, against judgment the defendants whom is entered jointly severally be liable for the of their shall sum proportionate damages. [sic] shares of the claimants total 4.22.070, From this of RCW part is clear that several is now intended to be the liability general rule.7 The statute evidences intent fault be legislative apportioned an generally entity be required pay entity's *39 share of proportionate The statute also evi damages only. dences intent that certain of fault legislative entities' share not all be at recoverable a by plaintiff; for example, pro shares of immune portionate parties.
However, 4.22.070(1)(b), under RCW and several lia joint exists where there is a fault-free bility plaintiff. Signifi however, joint the form of and several cantly, liability which not, exists where there is a fault-free is under RCW plaintiff 4.22.070, the same as the and joint liability several which Where, existed to the tort reform act of 1986. prior prior the tort reform act of and several "pure" joint liability a enabled to sue one tortfeasor and recover all of plaintiff tortfeasors, his or her from one of damages RCW multiple 4.22.070(1) (l)(b) and do not that. permit 4.22.070(1)(b),
Under RCW only defendants whom against is entered are and judgment jointly liable and severally only for the sum of their shares of the dam proportionate total A defendant whom ages. against judgment is entered is 4.22.070(1) defined RCW as "each defendant specifically by by those who have been released the claimant or are except to the claimant or liability prevailed immune from have Thus, any other individual defense . . .". released settling, defendants do not havе entered them judgment against 4.22.070(1), within the of RCW and therefore are meaning and defendants. jointly severally liable and liable defendant here is only jointly severally Petrolane, Inc., is not a and sever- jointly defendant Beatt. liable defendant because was released. ally suggests exception general is an to a 7 WhileRCW 4.22.030 RCW 4.22.070 rule, exception general is in fact an that has all but swallowed the RCW 4.22.070 Harris, Washington's 1986 Tort Act: Partial Tort Settlements rule. Reform After (1986-1988). Liability, 22 the Demise Joint and Several Gonz. L. Rev. 4.22.070(2) provides: RCW one of severally liable under jointly If a defendant is and (1)(a) (l)(b) sec or of this exceptions listed in subsections the tion, another against rights to contribution such defendant's defendant, of settle and the effect severally hable
jointly and defendant, determined under shall be by either such ment RCW 4.22.040, 4.22.050, 4.22.060. 4.22.070(2) here and apphes RCW Defendant claims that 4.22.060(2) pro- be RCW apphed. RCW 4.22.060 directs that other releasing person against per- claim of a that a vides if rea- the settlement reduced the amount of by sons is provision of this argues Defendant for apphcation sonable. defendant nonsettling credit, offset, or what against for of a has to total verdict. pay however, jointly 4.22.070(2), ¿/defendants
Under RCW (1)(a) (1)(b), or then subsection severally hable under other, to each have of contribution as rights those defendants such a .050, and the effect of a settlement 4.22.040, RCW to be determined hable defendant severally jointly restricts terms, RCW 4.22.070 By under RCW 4.22.060. its defendants to credits, offsets, settling amounts paid by *40 defend settling liable severally amounts and paid by jointly words, plaintiff, is a fault-free ants. In other where there (1)(b) (2) of RCW 4.22.070(1), apphcation and direct RCW hable defend severally and only ¿/there jointly 4.22.060 the effect Thus, under the of the statute language ants. plain 4.22.060) (RCW in the does not apply of settlement statute and settling jointly there are no circumstances here because hable defendants. severally 4.22.070(2) inter RCW is however,
Plaintiffs argue, 4.22.070(1)(b). contend They inconsistent with RCW nally de settling and hable referring jointly severally to 4.22.070(2) part inconsistent with fendants, RCW is (1)(b) lia and several only joint which speaks subsection is whom judgment to defendants against with bility respect entered. language plain simply overlooks argumеnt
This who are of defendants speaks That subsection subsection 4.22.070(1)(a) liable under either RCW or jointly severally (1)(b). (l)(a) (not here), If is under the case liability liability is who "were in concert or a premised parties acting when as an or servant of person acting agent the party." (1)(a) under subsection Liability joint is and several. With 4.22.070(2) mind, this in it is to see RCW easy why refers to and jointly severally liable defend possibility settling (1)(a), is on subsection liability premised ants. Where one of concert, situations, or in agency two can parties acting and liable severally settle while still defend being jointly Further, ant. to overlook plaintiffs appear possibility 4.22.070(2) settlements. RCW applying postjudgment 4.22.070(2) There is thus no between RCW inconsistency (1)(b), and subsection and it contrary plaintiffs' position, clearly possible give is effect to all the statu meaningful toiy language. much of the total
How verdict must defendant Beatt 4.22.070(1) judgment Under RCW pay? entered against which represents "in an amount defendant party's pro claimant's total damages." share portionate at fault. Beatt must percent pay found defendant There are no other jointly of the total verdict. and percent (those whom against severally judgment Hable defendants entered). entitled to no has Beatt is credit or been Defendant entities, offset whether by any settling for amounts paid at-fault, of those entities are fault-free or because none and jointly meaning Hable defendants within severally 4.22.070(2) RCW express language of RCW 4.22.070. 4.22.040, does not apply, thus does not direct that RCW .050, or .060 is to be Had more than one appHed. there been whom against judgment defendant was entered according 4.22.070(1), then, as defendants, RCW there among those joint would have been several If HabiHty. any settling Hable, jointly defendants were then RCW 4.22- severally .070(2) would have been appHcable. *41 matter, defendant
As a if there is no argues poHcy proportionate reduction from defendant's share for amounts more than recover entities, may settling plaintiff paid favor- policy in contravention damages, actual plaintiff's for recoveiy plaintiff. one full only ing one suing only however, first, that a note, plaintiff We for settles If the plaintiff in the same position. defendant determine ultimately of fact might what a trier more than recov- "one full are, has more than damages plaintiff total may defendant only one suing a ery". Similarly, plaintiff of the settle- as a result damages than total receive less While holding plain- our here. ment, under possibility also windfall, seeming obtaining possibility has the tiff of less than of the possibility also bears the burden plaintiff reform the tort existing Unlike the law before recovery. full severally jointly under a solvent act of which burden to bear the be might required liable tortfeasor a heavier tortfeasors, the law now puts of other insolvency an for an entity settles with burden on the who plaintiff share of fault as determined entity's than that amount less of fact. by the trier is, obtaining cases result very plaintiff
The truth few less, no regardless one full no more and exactly recoveiy, used. offsetting, method of crediting, complain and cannot Second, defendant is not harmed damages than its share of that it is asked to more being pay Cessna Air- its share of fault. See Duncan v. from resulting (Tex. 1984). Co., 665 S.W.2d craft Association State Trial Washington Lawyers Amicus (WSTLA) encouraged, that settlements should be argues if the sum of the they encouraged propor- and that will be 4.22.070(l)(b) includes the shares shares RCW tionate entities, nonsettling judgment against at-fault with settling defendant(s) settlement with the amount of offset fault-free reasons that potentially at-fault WSTLA entities. know in will they inclined to settle because will plaintiffs be will not of settlement and of trial the consequences advance also an settlement. WSTLA bear the entire risk of adverse the risk will bear defendants nonsettling reasons that since *42 for the shares of at-fault being responsible proportionate entities, defendants will have a stake in settling nonsettling in hearing a reasonableness much the same as before way RCW 4.22.070 was enacted. reasons, First,
For three this is argument unconvincing. 4.22.070(1) provides "[jjudgment RCW that shall be entered against each defendant those who have been released except (Italics ours.) 4.22.070(1)(b) the . by claimant. .". RCW pro if fault-free, vides that the is found to be "the defend plaintiff ants whom is entered shall against judgment be jointly severally liablе for the sum of their proportionate shares the claimants total [sic] Under these damages." provisions, the share of a proportionate entity released is not of the part proportionate sum of shares referenced in RCW 4.22- .070(1)(b). Peck, 243; Harris, See 62 Wash. L. Rev. at Wash Tort Act: Partial ington's 1986 Tort Settlements Reform After the Demise and Several Liability, Joint Gonz. L. Rev. (1986-1988). Second, WSTLA's the cart before argument appears put horse, arguing of defendant's involvement necessity hearings reasonableness without the neces- demonstrating hearings themselves. We do not address the latter sity issue, policy argument but note that WSTLA's assumes their necessity. Deciding necessity hearings of reasonableness day. must await another
Third, while it can be said in advance of trial that a free, be fault plaintiff may potentially plaintiff may the trier of by fact be found fact to be at fault. partially 4.22.070(1)(a) (3) case, Should that be the and if RCW then in the case of a indi inapplicable, liability single In visible harm will be such circumstances only. several as (just will bear the risk of adverse settlement plaintiff above) defendant, when there is one as with only explained recovery considerable about the ultimate follow uncertainty into RCW 4.22.070's uncertainty a trial. Given such built ing rule" of several and the fact that the "general liability, ques determined a trier of fact tion of fault is not plaintiff's trial, considerable doubt until close of we have according be construed intended the statute Legislature WSTLA, face of particularly to the policy argued contradicts con- proposed which statutory language Harris, 22 L. at 82 (Leg- Gonz. Rev. generally struction. See 4.22.070 "that it has RCW by provisions islature shown uncertainty regarding claimant concerned with settlement"). effects of partial to modify directions the trial court
We remand with Beatt. against entered judgment Summary Judgment — Reinstatement Partial
of Defendant challenges Defendant made on the preliminary ruling *43 Early proceedings, motion calendar. on in the on March trial for granted partial the court defendant's motion of dismissal of defendant from the action. summary judgment contained the certifi- summary judgment order of pаrtial 54(b) CR entry judgment language required by cation and 2.2(d) ("[t]here just no reason for being and RAP delay, .'', directed to enter hereby Clerk of the Court this order. . 287). Plaintiffs later to Papers, Clerk's at moved reinstate action, defendant as at which time it came to party that the order contained the counsel's attention plaintiffs' Plaintiffs then moved to CR language. pursuant certification 60(b) The trial partial summary judgment. for vacation of motion, that court in because court said granted part judgment judgment, it had never intended that the be final that could but instead the trial court intended plaintiffs if discovery led to for the the- request support reinstatement did ory repose apply. that the builder's statute 60(b) for Defendant contends that under CR by moving the partial admitted that judgment plaintiffs vacation are was a final summary judgment judgment, plaintiffs argue partial and cannot now theory bound was not a final that vacation summary judgment judgment, and, 60(b), case, CR that service was under improper 60(b) and the court there- under CR required improper summary jurisdiction partial judg- fore lacked vacate the ment order.
Defendant's arguments without merit.
In
Prods.,
Fox v.
Inc.,
Sunmaster
498, 503,
115 Wn.2d
798 P.2d
(1990),
we held that
the "no just reason for
54(b)
delay"
is insufficient
finding
satisfy CR
and RAP
2.2(d) unless the record "affirmatively show[s] there is in
fact some danger of
or injustice that
hardship
will be alle
viated
an
Fox,
immediate
appeal."
at 503. Pro forma
language
that effect is
Fox,
insufficient.
at 504. The record
here does not
indicate that
there
just
was no
reason for
delay,
defendant does not argue that there
Instead,
was.
language
the summary judgment order is simply pro
forma language of the kind
disapproved
Fox and Doer
v. New York
flinger
Co.,
Ins.
Wn.2d
Defendant that Fox does not be- apply 54(b) cause it concerns a version of CR written requiring 54(b) findings supporting certification, while CR as it existed when partial summary judgment was entered did not. Counsel's bald assertion overlooks the fact that regardless of the written finding requirement rule, now in the the holding in Fox which this upon matter turns is not new. See Doer- flinger Co., v. New York Ins. supra 882. Regardless of Life written findings, the record must still demonstrate there is in fаct no just reason for delaying entry judgment.
Absent a proper certification, an order adjudicates which fewer than all claims or the rights and liabilities of fewer than all parties subject to revision at time any before entry final judgment as to all claims and the rights liabilities of all 54(b); Fox, CR see parties. at 504. The partial summary ofder judgment was not certified properly and it was not a final judgment; the trial court had the authority to modify order at any time to final prior judgment.
Further,
use,
plaintiffs'
attempt
the trial court's
60(b)
of,
consideration
CR
does not
change
result. As
60(b)
defendant
CR
acknowledges,
is not the proper vehicle to
Brief of Appel
are concerned.
orders
interlocutory
use where
60(b)
judgment,
lant,
See CR
(pertaining
at 24 n.8.
"final
(italics
Wright
11C.
ours));
generally
see
order,
proceeding"
or
(1973)
nn.27-28
at 145 &
Miller, Federal Practice
& A.
§
(relief
(Fed.
is not
judgment)
applicable
from
R. Civ. R 60
order;
instead at
interlocutory judgment
the case of an
trial court has plenary
judgment
of final
entry
time before
accord,
as justice requires);
to afford such relief
authority
S.E.2d
227, 252
Bank, 40 N.C. App.
v. Southern Nat'l
O'Neill
(N.D. 1990).
Goetz,
v.
In CR had under authority final and the trial court judgment 60(b). 54(b) We uphold of CR modify regardless to this party reinstatement of defendant as a trial court's action. motion to strike plaintiffs' defendant's
Finally, grant we General curiae Associated answer to the brief of amicus Washington. Contractors of Smith, Andersen, Durham, Utter,
Dore, C.J., and Johnson, JJ., concur. — I I because
Dolliver, separately J. write (concurring) I issue. presentation the majority's with disagree believe, however, I without verdict, because uphold jury's intended scope on the guidance further legislative *45 302 4.16.300,
1986 amendment RCW instruction 17 with the comports ordinary meaning of term "manufac- turer".
The limits its majority analysis to whеther the defendant is a manufacturer under jury instruction 17 because the defendant and never proposed excepted instruction. However, at 255-57. majority, See proposed defendant only after it moved the instruction for summary judgment to the objecting theory a directed verdict was a circumstances, manufacturer. Under these the failure to object to an not instruction does make instruction the DeRosier, law the 14 case. See Rhoades v. Wn. App. n.2, 948 546 (1976); Co., P.2d 930 Geer v. Sound 88 Transfer 1, 3, 691 (1915); Wash. 152 P. see 75B generally Am. Jur. 2d (1992); Trial 1461 88 C.J.S. Trial 414 (1955); Mutual § § cf. Cox, Ins. Co. v. 643, 651, 757 Wn.2d P.2d of Enumclaw (1988) (an instruction will not become the law of the case when the trial court and knew the opposing party objecting party's position).
The issue presented for resolution is whether
defend-
ant is within the class of persons protected by the statute of
The
repose.
protects "person[s]"
statute
from "all
claims
any
of action
kind . . . arising
causes
from such person
constructed,
altered or repaired
having
any improvement
real
but
"to
upon
property,"
does
claims
apply
or causes
against
action
manufacturers." RCW 4.16.300.
argue
The
that a builder who
plaintiffs
engages
activity loses the
of the statute
"manufacturing"
protection
repose.
contend the definition of "manufac-
plaintiffs
(RCW 7.72) (PLA)
turer" in the
act
product liability
appli-
cable, and if a
definition,
builder meets that
then it falls
outside the protections of the statute of repose. Conversely,
the defendant
the PLA
argues
definition
manufacturer
apply
does not
and only
manufacturers"
fall outside
"pure
the statute.
scope
The defendant relies on the context
which
amendment
together
was enacted
with some
legislative history
argue that the amendment only applies
pre-manufactured
to "manufacturers
of asbestos and other
Brief of
at 38.
products."
Appellant,
*46
is
While the stat-
argument
entirely persuasive.
Neither
and the PLA are
in that
repose
against
ute of
related
claims
PLA,
manufacturers must now be
under
the
the
brought
did
PLA in
omit
reference to the
the 1986
Legislature
(Second
amendment. See
Brief of
C
Reply
Appellant app.
(voice
Draft,
573);
H
Proposed SHB
Brief of Appellant app.
PLA). Further,
vote
deleting
although
reference
there
some indication that
the
wanted to
Legislature
ensure
pursue
against
manufacturers,
could
its claims
I
asbestos
am not
the
persuaded
legislative
forecloses a
history
broader
of
definition
manufacturer.
the
Consequently,
legislative
of
regarding
scope
intent
the amendment must be deter-
mined
reference to the
by
of its
ordinary meaning
terms. See
v.
Indus.,
Dennis
Department
Labor &
109 Wn.2d
Given far-reaching this I am consequences on the legislative reluctant scant history amendment synonymous and the of "construct" and "manufac- meanings divine the ture" to legislative intent regarding applica- of the statute repose to the defendant in this case. bility sense is that the crux does My of this issue not he activity in the engaged Equipment Company whether Beatt in whether the but rather manufacturing, of construction or real upon its an activity yielded "improvement result of injury or and in whether property" "product" v. Condit caused product improvement. Cf. (1984) Co., Wn.2d 676 P.2d Refrigeration Lewis (a an improve- unit within conveyor refrigeration belt and the subject to real are more properly ment property law). product liability however, I the ver- uphold
Lacking legislative guidance, the defendant was a dict I found because believe under a definition which with the comports manufacturer term. meaning ordinary J., J. Guy, Dolliver, concurs with Reconsideration denied 1993. February *47 25, 1992.] [No. Banc. November En 58059-6. Whirlpool v. al, Respondents, Zachman, et John Acceptance Corporation, Petitioner.