[As amended by order of the Court of Appeals April 2, 1990.]
Carlos C. Cornejo, individually and as personal representative of the estate of his late wife, Elisa
Mrs. Cornejo fell to her death from the Ahtanum Creek Bridge. The bridge, an overpass structure
Mrs. Cornejo was returning home from work on January 19, 1985, driving north on Highway 97. Ahead of her was a car driven by Loretta Rhinevault. At approximately 5:30 p.m., as their cars entered onto the bridge, it was dark, and freezing rain had begun to fall. A "solid sheet of ice" covered the road. Ms. Rhinevault's car spun around and came to rest on the right side of the road, facing the oncoming traffic. Mrs. Cornejo's car also spun out and came to a stop about 20 feet from the Rhinevault car, roughly perpendicular to the direction of traffic, facing the median barrier and across portions of both northbound lanes.
Both drivers got out of their cars and spoke briefly. Ms. Rhinevault saw headlights from other vehicles approaching from the south. Both drivers turned away, and Ms. Rhinevault assumed Mrs. Cornejo was returning to her car. No one saw Mrs. Cornejo alive again.
State Patrol officers found Mrs. Cornejo's body under the bridges several hours later. The investigating officer concluded Mrs. Cornejo was not struck by a vehicle, and formulated three possible explanations for her death: (1) she attempted to jump to the other bridge to avoid the oncoming traffic; (2) she straddled the barrier, lost control and fell; or (3) she jumped over the barrier, believing the area between the bridges was covered. A plaintiff's expert testified at trial, based on the location of the body under the bridges, that Mrs. Cornejo simply vaulted over the barrier, "with no premonition that there was a hazard [t]here...".
At trial, Mr. Cornejo presented substantial evidence of the State's negligence, which is summarized briefly here:
1. Several witnesses testified they had come close to falling through the opening between the bridges, assuming, as Mrs. Cornejo apparently did, that the space between the barriers was part of a continuous bridge deck. Truck driver Trapp, on the evening of Mrs. Cornejo's accident, avoided a similar fall when he saw a light below. A Union Gap police officer and several fire fighters, all of whom were familiar with the bridge, almost fell through the gap in the course of their duties on other occasions.
2. The Mayor of Union Gap, John Hodkinson, wrote a letter to the State Department of Transportation in 1982, after the incident involving the fire fighters. The Mayor asked the Department to install steel netting between the bridges. The Department's district administrator said in a reply letter that he shared the Mayor's concern, and noted a similar problem with parallel bridges in Kennewick. The administrator wrote that a screen had been placed over the gap in Kennewick "after several people had fallen through".
3. Transportation engineer Edward Martin Stevens testified there was a high potential for accidents on the bridge,
4. Lewis B. Horn, a structural engineer specializing in bridge design, testified it would have been feasible to design the bridge without the open gap, or alternatively to provide additional safety barriers or covering materials to prevent accidental falls. Mr. Horn testified the cost of installing a steel net over the gap would have been about $21,700.
A significant issue at trial was whether the gap between the bridges was visible, either by passing drivers or at nighttime by persons walking near the median barriers. The State's theory was that the opening was clearly visible to drivers, and because Mrs. Cornejo crossed the bridges regularly as she drove to and from work she should have noticed the gap. A State Patrol officer and two other witnesses testified they knew of the opening because they had seen it as they drove by. Counsel for the State also argued to the jury that Mrs. Cornejo should have seen the gap the night she fell, apparently on the basis that the truck driver, Mr. Trapp, saw a light under the bridges and thus knew the median was uncovered.
Mr. Cornejo responds by referring to evidence outlined above, indicating the gap was so deceptive that several people almost lost their lives as Mrs. Cornejo did. Several witnesses, including a former Union Gap police officer and truck driver Trapp, testified they were unaware of the open gap, even though they drove over the bridges regularly. Counsel for Mr. Cornejo argued to the jury that the light Mr. Trapp saw must have been from a car on the road below because nobody else saw it, and there were no permanent lights under the bridge.
The principal issue is whether the court erred in instructing the jury on the "duty of seeing". Instruction 8 stated:
See WPI 12.06. Mr. Cornejo contends Mrs. Cornejo had no duty to see the hazard that caused her death. He cites several cases that hold a person has no absolute responsibility to take note of her surroundings to discover an unanticipated danger. See Blasick v. Yakima, 45 Wn.2d 309, 313, 274 P.2d 122 (1954); Hines v. Neuner, 42 Wn.2d 116, 125-26, 253 P.2d 945 (1953); Baltzelle v. Doces Sixth Ave., Inc., 5 Wn.App. 771, 776, 490 P.2d 1331 (1971). However, these cases do not support the contention Mrs. Cornejo had no duty to notice the danger in this case. The cases merely indicate knowledge of a dangerous condition may be imputed to a person if it was reasonable for her to notice it under the circumstances. Blasick, at 314; Hines, at 125-26; Baltzelle, at 776. The question is one for the jury. Hines, at
Nevertheless, Mr. Cornejo contends that because Mrs. Cornejo did not have a positive duty to see the hazard, the instruction should not have been given. He relies on Day v. Goodwin, 3 Wn.App. 940, 478 P.2d 774 (1970), review denied, 79 Wn.2d 1001 (1971), in which the court found error in giving the "duty of seeing" instruction where only the defendant had a statutory duty to look for the hazard. Day, at 945. Here, neither party had such a positive duty, but Mr. Cornejo argues the instruction should not have been given because it unfairly emphasized the State's theory of the case. We agree.
The "duty of seeing" instruction is a specific application of the general instruction that defines negligence as "the failure to exercise ordinary care". See WPI 10.01. For this reason, the comment to the pattern instruction notes it is "probably redundant". Comment, WPI 12.06. It is not an
While in some circumstances the instruction may be regarded as a harmless redundancy, here it was not. The instruction unfairly turned the jury's attention away from the clear evidence of the State's negligence, toward the question of Mrs. Cornejo's contributory negligence. In light of the weakness of evidence that the gap between the bridges was visible either to motorists or to pedestrians, the instruction emphatically favored the State's theory. Instruction 8 prejudicially overstated the State's minimal evidence to such a degree as to make it "palpably unfair". Samuelson, at 897. We therefore reverse and remand for a new trial on the issue of liability.
We address one other issue in this area as guidance for the court on retrial.
Mr. Cornejo contends the court should have instructed the jury on the State's duty to eliminate hazards or post warnings of inherently dangerous conditions. The trial court rejected proposed instruction 14, which stated:
Mr. Cornejo contends the proposed instruction would have provided the appropriate "yardstick" by which the jury could have compared the parties' fault. He argues the jury, unaware of the State's "affirmative duty" regarding the inherently dangerous conditions, gave insufficient weight to the State's breach of its duties. However, counsel for Mr. Cornejo in closing argument clearly articulated the State's affirmative duties, and the verdict indicates the jury accepted this argument.
See WPI 140.01. Instructions are sufficient if they permit both parties to argue their theories of the case, are not misleading, and, when read as a whole, properly inform the jury of the applicable law. Gammon v. Clark Equip. Co., 104 Wn.2d 613, 617, 707 P.2d 685 (1985); Brown, at 194. Mr. Cornejo does not contend instruction 6 was misleading.
Instruction 6 properly sets forth the applicable law, which is that the State must exercise ordinary care to keep the highways reasonably safe for ordinary travel. Boeing Co. v. State, 89 Wn.2d 443, 446, 572 P.2d 8 (1978). Inherent in this duty is the "alternative duty either to eliminate a hazardous condition, or to adequately warn the traveling public of its presence". Meabon v. State, 1 Wn.App. 824, 827-28, 463 P.2d 789 (1970) (citing Holmquist v. Grant Cy., 54 Wn.2d 376, 379, 340 P.2d 788 (1959)); see also Provins v. Bevis, 70 Wn.2d 131, 138, 422 P.2d 505 (1967); Raybell v.
Instruction 6 permitted counsel for Mr. Cornejo to fully argue his theory of the case. Counsel repeatedly argued the gap between the bridges was hazardous, and pointed to evidence suggesting feasible alternatives for eliminating the hazard. The instructions, considered as a whole, provided an adequate framework for Mr. Cornejo to present his theory of the case.
We now consider assigned errors related to the jury's determination of damages. Mr. Cornejo presented testimony of an economist, who calculated the total economic loss at $618,633. On the issue of reducing future economic losses to present cash value, the economist testified, based on the historical pattern, interest earned on a judgment will be offset by future inflation. During closing argument, counsel for Mr. Cornejo asked for a verdict of $1,225,663, which included the economic losses plus $250,000 for Mr. Cornejo, $107,000 for son Tony, $116,000 for daughter Margo, and $134,000 for son Bobby.
The State's economist calculated the total economic loss at $233,207. He testified he determined the present value of future losses by considering the cost of an annuity, with annual payment increases of 5 percent to account for inflation.
Instruction 16 provided:
See WPI 34.02. Mr. Cornejo contends the State's expert testimony regarding the cost of an annuity, addressing the question of present cash value, should have been excluded on both evidentiary and policy grounds.
As a practical matter, the concept of present cash value is unique to this context, and economists rarely engage in any such analysis outside of litigation. However, the costs of annuities, obtained, as here, in price quotations from insurance companies, surely are facts that would be used generally by economists and financial planners in many contexts. Annuities commonly are used in structured settlements. See Perez v. Pappas, 98 Wn.2d 835, 659 P.2d 475 (1983). The pattern jury instructions contain a "Present Value Table", which is essentially an annuity table representing various interest rates. 6 Wash. Prac., WPI app. E, at 768-69 (3d ed. 1989). The 1986 tort reform act requires the court, at the request of a party, to order periodic payment of future damages that exceed $100,000. RCW 4.56.260. The facts on which the State's expert relied here are of the "type reasonably relied upon" by economists.
Mr. Cornejo next contends the expert's testimony invaded the province of the jury, by assuming a "built-in" interest rate. In fact, the expert testified the annuity he used in his analysis yielded 8.7 percent to 8.75 percent. The objection here seems to be that the expert's analysis contained an assumed fact which, under the instruction, was for the jury itself to decide. Under the modern rules, however, opinion testimony may embrace an ultimate issue to be decided by the jury. ER 704. The jury was instructed it was not bound by the experts' opinions, and counsel for Mr. Cornejo was free to inquire as to the appropriateness of a particular interest rate or to suggest another. See 5A K. Tegland § 313, at 488-93.
Mr. Cornejo also raises several policy-based objections to the annuity evidence.
J. Stein, Damages and Recovery § 173, at 337 (1972). Both parties have cited cases from other jurisdictions that tend to support their points of view. Other cases may be found in Annot., Cost of Annuity as a Factor for Consideration in Fixing Damages in Personal Injury or Death Action, 53 A.L.R.2d 1454 (1957), and supplements.
Of the cases cited by the parties, two are inapplicable.
Mr. Cornejo relies heavily on Herman v. Milwaukee Children's Hosp., 121 Wis.2d 531, 361 N.W.2d 297 (Ct. App. 1984), review denied, 122 Wis.2d 782, 367 N.W.2d 222 (1985), in which the Wisconsin Court of Appeals stated:
Mr. Cornejo's objection to the evidence presented here appears to be primarily that it conflicts with the opinion of his own expert: the amount to be earned through interest is approximately offset by the reduced purchasing power of the dollar. The attractiveness of this theory is obvious, in that it avoids any need to discount future damages, a matter even the Supreme Court views as difficult. See Perez v. Pappas, supra at 843. In the absence of testimony or other evidence to the contrary, judicial notice of this relationship may be taken. Mendelsohn v. Anderson, 26 Wn.App. 933, 940, 614 P.2d 693 (1980). However, the instruction on present value and the guidelines on how to calculate it are mandatory. Hinzman v. Palmanteer, 81 Wn.2d 327, 335-36, 501 P.2d 1228 (1972). The matter is for the jury to decide, in consideration of all the relevant evidence submitted by the parties. A judicial application of the economic theory proposed by Mr. Cornejo thus would be inappropriate.
With this in mind, we address briefly the specific policy objections raised in this appeal. First, Mr. Cornejo contends the State's expert testimony failed to address the issues required by the jury instruction. However, the expert's analysis did propose a specific interest rate, a matter for the jury's determination. Opposing counsel was free to cross-examine the expert, or to present evidence of a
Finally, Mr. Cornejo contends testimony on the cost of a specific annuity is misleading to the jury. He concedes annuity tables are admissible in Washington. See Layton v. Yakima, 170 Wn. 332, 338-40, 16 P.2d 449 (1932); Sadler v. Wagner, 5 Wn.App. 77, 486 P.2d 330 (1971). He argues, however, that evidence of the actual cost of a specific annuity will mislead the jury into accepting the hypothetical figure used by the expert. Illinois courts subscribe to this view. See Lorenz v. Air Ill., Inc., 168 Ill.App.3d 1060, 522 N.E.2d 1352, 1356 (1988); Singh v. Air Ill., Inc., 165 Ill.App.3d 923, 520 N.E.2d 852 (1988). However, the modern evidence rules permit an expert to state an opinion without prior disclosure of the underlying facts, leaving to the opposing party the responsibility of questioning the basis of the opinion. ER 705; 5A K. Tegland § 310, at 481-82.
We find no error in permitting the annuity testimony.
SPECIAL VERDICT FORM
Finally, Mr. Cornejo contends the court should have submitted to the jury a special verdict form that would have required the jury to itemize the damages individually for Mrs. Cornejo's estate, for Mr. Cornejo, and for each of the three children. The verdict form actually submitted permitted the jury to establish the total amount of damages generally for the estate of Mrs. Cornejo.
A child has an independent cause of action for loss of parental consortium, Ueland v. Pengo Hydra-Pull Corp., 103 Wn.2d 131, 691 P.2d 190 (1984), and a spouse has an independent cause of action for loss of spousal consortium. See Christie v. Maxwell, 40 Wn.App. 40, 696 P.2d 1256, review denied, 104 Wn.2d 1002 (1985). The State contends that because the children were not named as plaintiffs in this action, they should not be included in the verdict form. However, a wrongful death action is filed for the benefit of the surviving spouse and children of the decedent. RCW 4.20.020. There was no need to name the children as plaintiffs.
Nevertheless, we believe the better practice in such a situation is for the jury to apportion damages at the time it
Mr. Cornejo, noting the State has failed to cross-appeal the issue of its own liability, argues the court on retrial should direct a verdict on the State's negligence and thereby limit the jury's consideration solely to the parties' comparative fault. Generally, the court will not grant relief to a respondent who has failed to file a cross appeal. See RAP 2.4(a); Wagner v. Beech Aircraft Corp., 37 Wn.App. 203, 213, 680 P.2d 425 (1984); Simpson Timber Co. v. Aetna Cas. & Sur. Co., 19 Wn.App. 535, 542, 576 P.2d 437 (1978), review denied, 91 Wn.2d 1013 (1979); Nord v. Phipps, 18 Wn.App. 262, 266 n. 3, 566 P.2d 1294 (1977), review denied, 89 Wn.2d 1014 (1978).
Here, as in Mina, the judgment was essentially in the respondent's favor. Also, the issues are so interwoven that we find it necessary to remand for retrial of the entire issue of the parties' liability. We also have considered the potential unfairness to the State of a directed verdict. This decision carefully addresses the instructions and their impact on the jury; a directed verdict similarly may have a devastating effect on the State's defense.
GREEN and SHIELDS, JJ., concur.
After modification, further reconsideration denied April 2, 1990.