WASHBURN v. CITY OF FEDERAL WAYNo. 66534-1-I.
273 P.3d 462 (2012)
Carola WASHBURN and Janet Loh, individually and on behalf of the Estate of Baerbel K. Roznowski, a deceased person, Respondents,
CITY OF FEDERAL WAY, a Washington corporation, Appellant.
CITY OF FEDERAL WAY, a Washington corporation, Appellant.
Court of Appeals of Washington, Division 1.
March 26, 2012.
Robert L. Christie, Thomas P. Miller, Christie Law Group, Seattle, WA, for Appellant.
Nathan P. Roberts, James Lovejoy, John R. Connelly, Jr., Connelly Law Offices, Tacoma, WA, for Respondent.
¶ 1 This is a wrongful death action arising from an act of domestic violence in which Paul Kim stabbed to death Baerbel Roznowski, his intimate partner, in her home. Kim murdered Roznowski shortly after a City of Federal Way police officer served Kim with a temporary protection order restraining him from either contacting Roznowski or being within 500 feet of her residence.
¶ 2 Unchallenged jury instructions become the law of the case.
¶ 3 The City claims that the trial court erroneously denied its first summary judgment motion. We do not generally review an
¶ 4 The City also claims that the court erroneously denied its Civil Rule 50(a) motion for judgment as a matter of law at the end of the plaintiff's case in-chief.
¶ 5 Finally, the trial court properly exercised its discretion by granting the motion for a new trial on damages to Roznowski's daughters, Carola Washburn and Janet Loh (collectively "Washburn"). We affirm the judgment on the verdict to the extent of liability and damages to Roznowski's estate and also affirm the grant of a new trial on Washburn's damages.
¶ 6 Kim and Roznowski were intimate partners. Each had a separate residence, but Kim spent most of his time living at Roznowski's home in Federal Way.
¶ 7 The relationship between the two grew increasingly troubled. Several days before the events that gave rise to this action, Roznowski called 911 to report a verbal domestic situation. The police reported that Roznowski and Kim had calmed down prior to their arrival and neither of them showed any signs of injury. Nevertheless, in accordance with the City police's protocol for domestic disturbance calls, an officer left a domestic violence booklet with Roznowski. The officer also explained to Roznowski that she could obtain an anti-harassment order.
¶ 8 Days after this incident, Roznowski contacted a domestic violence advocate working at the King County Prosecutor's Office located in the Norm Maleng Regional Justice Center. After consultation with the advocate, Roznowski sought a protection order from the superior court to restrain Kim from being in her home or near her. She completed the paperwork herself and presented it for consideration by a court commissioner on May 1, 2008. The paperwork included a Petition for an Order for Protection-AH and a proposed Temporary Protection Order and Notice of Hearing-AH.
¶ 9 Roznowski's affidavit supporting her petition for the protection order identified Kim as the person from whom she sought protection and identified him as her "boyfriend." The affidavit also stated, among other things, that his most recent acts included:
¶ 10 A court commissioner entered Roznowski's proposed temporary protection order. By its plain terms, it restrained Kim "from making any attempts to contact" Roznowski.
¶ 11 Roznowski then delivered copies of her petition and the temporary protection order to the City's police department for service on Kim.
¶ 12 The LEIS states at the top of the form:
¶ 13 Below the above directives in the LEIS, Roznowski provided additional information about Kim to the police. She stated that an interpreter who spoke Korean would be needed to serve Kim.
¶ 14 Under the portion of the LEIS seeking "Hazard Information" about Kim, Roznowski checked the box marked "Assault."
¶ 15 Significantly, Roznowski also stated in the LEIS that Kim was "likely to react violently when served."
¶ 16 Early in the morning of May 3, 2008, Officer Andrew Hensing of the City's police department picked up a folder at police headquarters in order to perform the service of the protection order on Kim that Roznowski sought. The folder included Roznowski's affidavit and petition for a protection order, the temporary protection order entered by the commissioner, and the LEIS that we described earlier in this opinion.
¶ 17 Around 8:00 a.m. that morning, Officer Hensing arrived near Roznowski's residence and parked his vehicle. He testified at trial that he did not completely read the papers in the folder prior to serving Kim.
¶ 18 Officer Hensing testified at trial that he knocked at the front door of Roznowski's home, and Kim answered.
¶ 19 Officer Hensing testified that he told Kim that he had been served with an anti-harassment order and that there was a hearing date stated in the order.
¶ 20 Officer Hensing testified that he "saw someone in the background" during the exchange with Kim at the door of Roznowski's home, but did not know whether the person "was male or female."
¶ 21 The evidence at trial showed that Kim remained at Roznowski's residence after Officer Hensing departed. This was notwithstanding the protection order's direction that Kim was restrained from either entering or being within 500 feet of the residence or from contacting Roznowski.
¶ 22 Less than an hour after Officer Hensing served Kim, Roznowski sent an e-mail message to her daughter, Carola Washburn. She wrote:
¶ 23 Kim called a friend and asked him to come over. Kim left the house with his friend for a brief period to go to a bank. He withdrew funds, gave them to the friend, and asked that the friend give the funds to his nephew. The friend then drove Kim back to Roznowski's residence.
¶ 24 The friend became concerned about Kim based on his actions and statements during the trip to the bank. The friend contacted police with these concerns. Police responded by going to Roznowski's house. They arrived at 11:55 a.m.
¶ 25 Police discovered that Kim, in the ultimate act of domestic violence, had stabbed Roznowski 18 times with a knife. She died of her wounds at the scene of the crime.
¶ 26 Washburn, individually and on behalf of Roznowski's estate, commenced this wrongful death action against the City. The two daughters alleged negligence, negligent infliction of emotional distress, and negligent supervision and training on the part of the City. The City denied liability, asserting that the public duty doctrine was a bar to all claims.
¶ 27 The City's first motion for summary judgment was based solely on the defense that the public duty doctrine barred all claims. The trial court denied the motion and the motion to reconsider.
¶ 28 The City sought discretionary review of the denial of its summary judgment motion. A commissioner of this court denied review, and a panel of judges denied the City's motion to revise that ruling.
¶ 29 The City's theory of the case at trial was that the public duty doctrine was a bar to all claims. The City took the position that
¶ 30 In Donaldson v. City of Seattle,
¶ 31 Washburn disagreed with the City's contentions at trial. She argued that the City had a duty to enforce the protection order entered by the court on May 1, 2008. For various reasons, Washburn claimed that the public duty doctrine did not bar the claims.
¶ 32 At the close of Washburn's case in chief and prior to presenting its own case, the City moved for judgment as a matter of law, as provided for by Superior Court Rule (CR) 50(a).
¶ 33 The jury returned a $1.1 million verdict solely in the estate's favor. It did not award any damages to either of Roznowski's daughters, individually. The court entered judgment on the verdict.
¶ 34 The City neither renewed its CR 50(a) motion pursuant to CR 50(b) nor moved for a new trial pursuant to CR 59. Washburn moved for a new trial solely on damages. The trial court granted Washburn's motion.
¶ 35 The City appeals.
LAW OF THE CASE
¶ 36 A primary issue on appeal centers on the effect of the City's failure to object to the substance of the trial court's Instruction 12, and its failure either to assign error to the instruction or to argue on appeal that its giving was improper. This instruction states the City's duty to exercise ordinary care in the service and enforcement of protection orders. As Washburn correctly argues, this instruction constitutes the law of the case. Thus, the only question on appeal is whether there is sufficient evidence to sustain the verdict under the instructions given.
¶ 37 We hold that Instruction 12, to which the City did not object in substance, is the law of the case. Additionally, there was sufficient evidence for the jury to find that the City breached its duty to Roznowski, as defined by the instruction.
¶ 38 Under the law of the case doctrine, instructions given to the jury by the trial court, if not objected to, shall be treated as the properly applicable law.
¶ 39 There, the defendant was tried for insurance fraud in Snohomish County Superior Court.
¶ 40 Hickman appealed, arguing that the State assumed the burden to prove that the act occurred in Snohomish County and failed to do so.
¶ 41 In discussing the law of the case doctrine, the supreme court stated that it is "an established doctrine with roots reaching back to the earliest days of statehood."
¶ 42 Applying these principles, the Hickman court examined the sufficiency of the evidence of the additional element—"[t]hat the act occurred in Snohomish County, Washington"—and determined the evidence was insufficient.
¶ 43 The holding of Garcia v. Brulotte
¶ 44 Here, the court and counsel for the parties extensively discussed whether a duty of care instruction should be given to the jury. Near the end of this discussion, and prior to counsel stating their exceptions, the following exchange occurred:
¶ 45 Following this exchange, the court assembled its final set of instructions. Instruction No. 12 stated:
¶ 46 The parties then stated their respective exceptions to the court's instructions to the jury:
¶ 47 Whether the City's exception to Instruction 12 complies with the requirements of CR 51(f) is debatable. That court rule states:
It is unclear from this record whether the City's objection is anything more than an objection to the wording of the instruction, as there is no further specific explanation here of the basis of any substantive concerns of the City.
¶ 48 We acknowledge that the City's position below and on appeal has been that this case should have been dismissed without reaching the stages of crafting and giving instructions to the jury. But the case did result in a trial, and in instructions to the jury. Our reading of the City's only exception to Instruction 12 is that it objected to the wording only, and not to its substance.
¶ 49 In any event, the City neither assigned error to this instruction on appeal nor otherwise argues on appeal that giving it was improper. In fact, the City states in its Reply Brief that its failure to designate:
¶ 50 We disagree with the City's view, as expressed in this briefing. On appeal, the City does not challenge either the substance or the wording of the instruction in any way. It plainly states that it is unnecessary to do so. Had the City made a substantive objection to Instruction 12 at trial, it could have said so on appeal. It did not.
¶ 51 Instruction 12 is now the law of the case for the City's duty to exercise ordinary care in the service and enforcement of the protection order that is at issue in this case. As we read the record, and in the absence of argument on appeal, the City did not object to the substance of the instruction. It only objected to the wording of the instruction. In any event, any claim to the contrary was
¶ 52 Because this instruction is now the law of the case, the only remaining question is whether there was sufficient evidence to support the jury verdict. We hold that there was sufficient evidence for a jury to find that the City breached the duty stated in this instruction. Whether Instruction 12 is a legally correct statement of the duty owed by a City police department, an instruction that can or should be given in future cases, is a question that we do not decide in this case.
¶ 53 We review jury verdicts under a sufficiency of the evidence standard.
¶ 54 Here, there was sufficient evidence for the jury to find that Officer Hensing, as an agent of the City, breached a duty by failing to exercise ordinary care in the
¶ 55 The temporary protection order also contained additional information that Officer Hensing failed to read. Specifically, the order restrained Kim "from making any attempts to contact [Roznowski]" and further restrained him from "entering or being within 500 feet of [Roznowski's] residence." Despite these express directives, both of which Kim violated upon being served, Officer Hensing did nothing to enforce them. Regardless of whether enforcement would have entailed either staying until Kim left Roznowski's residence or arresting him if he failed to do so, Officer Hensing failed to enforce the express provisions of the superior court's order that were intended to protect Roznowski from harm.
¶ 56 There was also expert testimony that the point of separation in a domestic situation could escalate to violence where an alleged abuser is separated from an alleged victim by way of a court order. That evidence supports what happened in this case: Once Kim understood that he was to leave Roznowski's residence and have no further contact with her, his behavior escalated into deadly violence.
¶ 57 We conclude that this evidence was sufficient to persuade a rational, fair-minded juror that the City breached its duty to Roznowski by failing to enforce the order that Officer Hensing served on Kim. This supports the jury verdict to the extent of liability and damages in favor of Roznowski's estate.
¶ 58 The City maintains that it did not owe any legal duty of care and all claims are barred by the public duty doctrine.
¶ 59 As we have explained, the law of the case doctrine is well-established. The City cites to a number of cases that hold that "technical violation of the rules will not ordinarily bar appellate review," where the nature of the challenge is clear.
DENIAL OF SUMMARY JUDGMENT MOTION
¶ 60 The City primarily argues that the trial court erroneously denied its first motion for summary judgment, which it based on the public duty doctrine. At the time of this motion, exceptions to the public duty doctrine were available theories of the plaintiffs. There were then genuine issues of material fact whether such exceptions applied. Because such genuine issues of material fact existed at the time of the City's motion for summary judgment, and because the matter proceeded to trial, we decline to review the denial of the motion.
¶ 61 Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
¶ 62 Here, the City's first motion for summary judgment was based solely on the theory that the public duty doctrine barred all claims in this wrongful death action. The trial court denied the motion on the basis that there were genuine issues of material fact for trial.
¶ 63 The City sought discretionary review of the denial of summary judgment. A commissioner of this court denied discretionary review, stating that "the legislative intent and special relationship exceptions arguably apply."
¶ 64 We may not review a denial of summary judgment following a trial if the denial was based upon a determination that material facts were in dispute and had to be
¶ 65 The City argues that because its negligence was Washburn's sole contention, the only question before the lower court at the time of the first summary judgment motion was legal: whether the City owed Roznowski a duty of care.
¶ 66 "In all negligence actions the plaintiff must prove the defendant owed the plaintiff a duty of care."
¶ 67 Here, whether the City owed Roznowski a particularized duty as opposed to a general duty of care could not have been determined at the time of the first motion for summary judgment because the material facts were disputed. We reject the City's overly simplistic characterization that only a legal question existed.
¶ 68 For these reasons, we do not review the denial of the City's first summary judgment motion.
DENIAL OF MOTION FOR JUDGMENT AS A MATTER OF LAW
¶ 69 The City also argues that the trial court erroneously denied its CR 50(a) motion at the close of Washburn's case-in-chief. Washburn responds that we may not review that denial because the City failed to renew its motion, as provided under CR 50(b). Nor did the City move for a new trial based on insufficient evidence. We agree with Washburn.
¶ 70 The Federal Rules of Civil Procedure (FRCP), on which the state Superior Court Civil Rules are modeled, allow a party to challenge the sufficiency of the evidence prior to the submission of the case to the jury under FRCP 50(a). Such a motion may be renewed after the verdict and entry of judgment under FRCP 50(b).
¶ 71 In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.,
¶ 72 In Ortiz v. Jordan,
¶ 73 But the fatal flaw, according to the Supreme Court, was that the Ortiz appellants failed to renew their motion, as FRCP 50(b) specifies. This failure "left the appellate forum with no warrant to reject the appraisal of the evidence by `the judge who saw and heard the witnesses and ha[d] the feel of the case which no appellate printed transcript can impart.'"
¶ 74 When a Washington Court Rule is substantially similar to a present Federal Rule of Civil Procedure, we may look to federal decisions interpreting this rule for guidance.
¶ 75 The language of FRCP 50(b) is virtually identical to CR 50(b).
¶ 76 Tegland also cites to Unitherm and notes that, in its analysis of FRCP 50, the Supreme Court had interpreted language virtually identical to the language of CR 50. Thus, because of the similarity of CR 50(b) and FRCP 50(b), the rationale of the Supreme Court's holding in Unitherm also applies to CR 50.
¶ 77 Here, the City neither renewed its CR 50(a) motion pursuant to CR 50(b) nor moved for a new trial. The failure to do so is fatal to its request that we review the trial court's denial of the City's CR 50(a) motion at the close of Washburn's case-in-chief.
¶ 78 The City makes several arguments why we should not apply the federal construction of FRCP 50 to CR 50. They are not persuasive.
¶ 79 First, the City argues that adoption of the Unitherm rule would be an extremely harsh penalty because it has never before been applied in Washington. But the Supreme Court's Unitherm decision was issued in 2006, prior to the incidents at issue here. Given the accepted principle that we may look to federal decisions interpreting federal rules that are substantially similar to our state's rules,
¶ 80 Second, the City attempts to distinguish the federal rule on the basis that, in contrast to Unitherm, sufficiency of factual evidence is not at issue here.
¶ 81 We explained earlier in this opinion that Instruction 12 established the law of the case regarding the City's duty. Thus, the question is whether there was sufficient evidence given the duty definition established by Instruction 12. Here, as we also explained earlier in this opinion, the evidence is sufficient to support the verdict. Accordingly, we reject this argument.
¶ 82 Finally, the City argues that the trial court abused its discretion when it granted Washburn's motion for a new trial on damages. We disagree.
¶ 83 Determination of the amount of damages is within the province of the
¶ 84 The supreme court's analysis in Palmer v. Jensen
¶ 85 Here, the City did not dispute the evidence supporting the close relationship between Roznowski and her daughters that constitutes the underpinning of their claims as individuals. Likewise, the City did not dispute that they suffered pain and suffering as a result of her death.
¶ 86 Furthermore, the special verdict form read "Was Defendant City of Federal Way's negligence a
¶ 87 The City argues that the jury's decision to award nothing to Roznowski's daughters merely indicates that the jury "determined that Ms. Loh and Ms. Washburn suffered general damages all caused by Paul Kim murdering their mother, distinct from Ms. Roznowski's damages flowing from the `foreseeable' assault."
¶ 88 The trial court did not abuse its discretion by granting a new trial on damages for Washburn.
OTHER CLAIMS AND DEFENSES
¶ 89 Washburn argues that we should affirm the judgment on the jury verdict in favor of Roznowski on the basis of the duty articulated in Restatement (Second) of Torts § 302B that this court applied in Robb v. City of Seattle
¶ 90 The City claims that Robb is inapplicable here. The City also claims that none of the case law exceptions to the public duty doctrine apply to this case.
¶ 91 Because we affirm on the basis of the law of the case doctrine and decline to review the denials of the City's first motion for summary judgment and the CR 50(a) motion, we decline to reach these respective arguments of the parties.
¶ 92 We affirm the judgment on the jury verdict, subject to the trial court's grant of a new trial on damages for Roznowski's daughters, which we also affirm.
WE CONCUR: LAU and BECKER, JJ.
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