Wright v. EngumWright v. Engum
On February 22, 1989, Theresa McKee, a blind pedestrian, was struck and killed by a truck driven by Defendant Raymond Engum and owned by Defendant Pro Express, Inc. In this case, Plaintiff James David Wright, Sr., as personal representative for the estate of Theresa McKee, appeals a King County Superior Court verdict holding that the Defendants were not negligent. This court accepted certification from the Court of Appeals and now affirms the jury verdict.
Facts
The accident occurred at approximately 2:30 p.m. at the intersection of Dexter Avenue North and Roy Street in Seаttle, Washington. Defendant Engum, a 62-year-old Pro Express employee with over 35 years of experience, was driving a 1979 Ford 80,000-pound-capacity tractor/trailer with a 45-foot trailer. He had just delivered a load of fertilizer to the Seattle Parks Department about a block from the accident site. Engum was stopped at a flashing red light and was pointed west on Roy Street. At this location, Dexter has three northbound lanes and two southbound lanes separated by a double yellow line. The outside northbound lane of Dexter is normally used for parking. The traffic on Dexter is controlled by a flashing yellow light. Engum intended to make a right, turn and proceed north on Dexter. He made a complete stop, turned on his right turn signal, and waited for traffic on Dexter to clear. While stopped, he noticed a female pedestrian, McKee, standing to his right on the northeast corner of Roy and Dexter. She was near the curb, her body was facing west, but she was looking over her left
After he approached the body, Engum noticed a white cane on the road beside the body. He testified that he did not see the cane before the accident and made "no connection with her being blind or needing a white cane at the time when she was standing on the corner”. Report of Proceedings, at 359. According to her father, McKee had owned a collapsible cane which she used when she was unsure of the terrain she was negotiating, but not at all times. McKee was able to see large objects as blurry forms and was capable of traveling on her own. There were no additional witnesses to the accident. Police officеrs investigating the accident offered the opinion that the impact occurred near the back of the gas tank on the right rear side of the truck about 10 feet from the front and about 18 to 20 feet from the curb. The police later examined the truck and found it in good working order.
Both sides presented expert testimony regarding the amount of time that McKee was visible to Engum while he was turning his truck. The jury found for the Defendants. Plaintiff moved for a judgment notwithstanding the verdict (JNOV) which the court again denied. Plaintiff then filed a timely appeal to the Court of Appeals and this court accepted certification.
In this appeal, Plaintiff asserts that
Analysis
Plaintiff first challenges the trial court’s instruction regarding notice. Instruction 14 and substitute instruction 14 advised that in order to find liability the jury must find that Mr. Engum either saw or, in the exerсise of ordinary care, should have seen Theresa McKee carrying the white cane in the street. Plaintiff asserts that
The driver of a vehicle approaching a totally or partially blind pedestrian who is carrying a cane predominantly white in color (with or without a red tip), a totally or partially blind or hearing impaired pеdestrian using a guide dog, or an otherwise physically disabled person using a service dog shall take all necessary precautions to avoid injury to such pedestrian. Any driver who fails to take such precaution shall be liable in damages for any injury caused such pedestrian. It shall be unlawful for the operator of any vehicle to drive into or upon any crosswalk while there is on such crosswalk, such pedestrian, crossing or attempting to cross the roadway, if such pedestrian indicates his intention to cross or of continuing on, with a timely warning by holding up or wаving a white cane, using a guide dog, or using a service dog. The failure of any such pedestrian so to signal shall not deprive him of the right of way accorded him by other laws.
The second part of the statute is the original statute adopted in 1945. Laws of 1945, ch. 105, §§ 1, 2. This part of the statute makes it unlawful to enter a crosswalk if a blind pedestrian "indicates his intention to cross” by waving a white cane or by using a guide dog.
Washington courts will not construe a statute to impose strict liability absent a clear indication that the Legislature intended to do so.
Hyatt v. Sellen Constr. Co.,
Plaintiff also points to
Plaintiff also presents the court with a colloquy between two of the legislation’s sponsors which Plaintiff argues evidences an intent to hold drivers strictly liable regardless of their awareness of the pedestrian’s disability. This colloquy occurred on the Senate floor on February 21, 1969, as the Senate considered the standard of care imposed under the statute.
Senator Mardesich: "Mr. President, I realize this is somewhat out of order but before we leave the second reading order I would like to ask one of the sponsors of the bill whether or not it might not be wise to define what 'blind’ is; and secondly, whether new section 4 would apply in the case of a situation where there was a blind person who stepped off the sidewalk into a crosswalk and there is a traffic control light indicating that the cars could pass through, if the driver of the vehicle would automatically be liable under new section 4 and I wonder if the sponsors want to go as far as they are going here?”
Senator Connor: "Section 4 and 5 gives [sic] the right of way to the blind person crossing the street. The right is extended even though the blind person shall not signal with his cane. Now this is what the 'White Cane’ people wanted. They have this law passed in several states, I believe Michigan and Wisconsin.”
Senator Peterson (Ted): "Continuing on a little further on Senator Mardesich’s inquiry, I just want to say that if they have the white cane or if they have the guide dog, and the motorist ran into them, they would be liable. If the blind person started crossing the intersection against the light without the indicated white cane or the guide dog, then the motorist would not be liable. In this bill you have two indications on this, the all white cane means totally blind, if the cane is half white and half red, then he is partially blind but the indications would be on the cane or the fact that he had a dog which would mean that he was totally blind.”
Moreover, this colloquy does little to advance Plaintiff’s argument. The legislators engaged in considerable discussion regarding the import of a white cane and a guide dog in relation to the level of impairment of a blind pedestrian. This colloquy implies that the Senators were concerned with notice to the driver. It certainly does not evidence the clear legislative intent required to impose strict liability regardless of notice.
Hyatt v. Sellen Constr. Co.,
Although it is clear that when it adopted the 1969 amendment the Legislature intended to enhance protection for blind pedestrians, we disagree that this enhanced protection was intended regardless of whether a motorist was aware of the pedestrians’ impairment. As a rule of statutory interpretation, courts construe statutes to avoid "absurd or strained consequences”.
In re Eaton,
The law exacts of a motorist greater care for those who are unable to care for their own safety, such as blind persons . . . when such physical disability is known or should have been known to the motorist. That is, this increased duty imposed upon a motorist by reason of the physical disability of a persоn in the highway is dependent upon the motorist’s knowledge of such disability or of facts which should charge him with knowledge thereof.
(Footnotes omitted.) 7A Am. Jur. 2d Automobiles and Highway Traffic § 449 (1980).
Courts throughout the country have followed this rule.
See, eg., Becka v. Horvath,
The element of notice has now been incorporated in the law of a majority of states through enactment of white cane statutes. As tenBroek noted:
[SJuch laws have affected the legal status of the blind and partially blind, [and] they have as a matter of fact greatly contributed to their safety. Knowledge that the white cane and dog are symbols of the blind is as yet far from universal but isbecoming fairly well diffused. To the extent that this knowledge does exist, the cane and the dog provide effective notice and inspire efforts on the part of drivers to avoid their users and on the part of pedestrians and others to assist them.
TenBroek, at 903.
Although there are few reported decisions interpreting white cane laws, those courts construing such laws have found that notice is a prerequisite to liability. In
Scott v. Webb,
In short, neither the language of the Washington statute nor its legislative history suggests that the Legislature intended to hold motorists liable even where the motorist was reasonably unaware of the pedestrian’s impairment. Further, Plaintiff has not presented this court with any examples of statutes in other jurisdictions that hold motorists who collide with blind pedestrians strictly liable regardless of notice. Conversely, our interpretation of the statute finds support in the language of the statute, established jurisprudence, and longstanding case law in other jurisdictions.
In his discussion of white cane laws, tenBroek notes "[t]he motorist remains bound to that acuity of observation which graces the ubiquitous reasonable man, and so presumably will be charged with observing him whom he should have rather than him whom he did in fact”. TenBroek, at 908.
Use of a negligence standard in this case is supported by
Thus, we find that the trial court properly instructed the jury that in order tо find for the Plaintiff, it must find that Engum either saw, or in the exercise of ordinary care should have seen, McKee in the crosswalk with her white cane.
Plaintiff next argues that the trial court erred in denying its directed verdict and JNOV motions under both a strict liability standard and a negligence standard. Since we have previously addressed the issue of strict liability, it is only necessary to review this question under the negligence standard.
In reviewing a trial court’s decision to deny a directed verdict or JNOV, this court applies the same standard as the trial court. As this court stated in
Hizey v. Carpenter,
A directed verdict or judgmеnt n.o.v. is appropriate if, when viewing the material evidence most favorable to the nonmoving party, the court can say, as a matter of law, that there is no substantial evidence or reasonable inferences to sustain a verdict for the nonmoving party. . . .
The inquiry on appeal is limited to whether the evidence presented was sufficient to sustain the jury’s verdict. Denial of a motion for directed verdict or judgment n.o.v. is inappropriate only when it is clear that the evidence and reasonable inferences are insufficient to support the jury’s verdict.
In this case, viewed in the light most favorable to the Defendants, we find sufficient evidence to sustain a verdict for the Defendant. Engum, while stopped at the intersection with his turn signal on, saw McKee who appeared to look directly at him acknowledging his presence and his intention to turn. He did not notice a white cane. Engum checked
Experts on both sides testified that there were only seconds or fractions of seconds that Engum could have seen McKee enter the crosswalk. A mechanical engineering expert for the Defendants opined that if McKee had been walking at 4 feet per second she would have only been visible in the crosswalk for two segments of time lasting .67 seconds each. On the other hand, if she were walking at 4.27 feet per second she would have been visible for only one .63-second period. Contrary to police reports, Plaintiff’s accident expert opined that McKee was hit further out in the intersection and then carried to the position where she was discovered. He believed that McKee was within Engum’s view for 6.4 seconds before impact and that for 3 of those seconds McKee would have been in the crosswalk, although he noted that during part of this time McKee would only have been visible through the truck’s rear window.
Based on this evidence, the jury could have determined that Engum reasonably assumed that McKеe was sighted and aware of his truck’s presence when she looked directly at him. Furthermore, the jury could have reasoned that Engum was not negligent in failing to observe McKee enter the crosswalk because she appeared to be waiting for him to turn, because she was only visible for short instances, and because he was also required to check for traffic and pedestrians in other directions. Plaintiff stresses the fact that En-gum noticed McKee’s dark sunglasses and wondered why anyone would wear such glasses on such a dreary day. However, Engum testified that he never made the connection that McKee was wearing the glasses because she was blind. Engum testified that McKee looked directly at him and that the white cane was not visible. He thought she could see and hear the truck making its turn. Viewed in a light most
Moreover, the case which Plaintiff cites,
Van Cleve v. Betts,
Defendants contend that
Van Cleve
is also distinguishable because, unlike the pedestrian in that case, McKee was not lawfully in the crosswalk. Whether McKee was lawfully in the crosswalk, however, is not an issue.
We note that Defendants raised several other challenges to the jury instructions in case we found that
The judgment is affirmed.
Andersen, C.J., and Utter, Brachtenbach, Dolliver, Durham, Smith, Guy, and Johnson, JJ., concur.
Notes
Forty-three states extend protection through white cane laws to wholly, totally, or partially blind persons while an additional five states extend only to blind persons. In 18 states the cane-using blind person must carry or use the cane to comply with the statute’s conditions while 26 states require the cane to he raised or extended. Thirty-seven states permit the use of guide dogs in the alternative. Thirty-four states require the motorist to take such precautions as may be necessary to avoid accident or injury to the pedestrian. Nine states require reasonable care to avoid injury. Jacobus tenBroek, The Right To Live in the World: The Disabled in the Law of Torts, 54 Cal. L. Rev. 841, 905-10 (1966).