48626-8-I
- Behailu Tadesse & Immabeth Tadesse, Appellants
v.
Gabriel and Jane Doe Reyes et al, Resps
486268MAJ
~
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 48626-8-I
Title of Case: Behailu Tadesse & Immabeth Tadesse, Appellants
v.
Gabriel and Jane Doe Reyes et al, Resps
File Date: 04/15/2002
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 99-2-05007-0
Judgment or order under review
Date filed: 04/27/2001
Judge signing: Hon. William L. Downing
JUDGES
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COUNSEL OF RECORD
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Counsel for Appellant(s)
Michael L. Johnson
Attorney At Law
119 1st Ave S #200
Seattle, WA 98104
Counsel for Respondent(s)
Thomas R. Merrick
Bullivant Houser Bailey
2400 Westlake Ofc Tower
1601 Fifth Avenue
Seattle, WA 98101-1618
J D. Smith
600 University Ste 2100
Seattle, WA 98101
Thomas R. Merrick
Bullivant Houser Bailey
2400 Westlake Ofc Tower
1601 Fifth Avenue
Seattle, WA 98101-1618
J D. Smith
600 University Ste 2100
Seattle, WA 98101
Jerret E. Sale
Bullivant Houser Bailey
2400 Westlake Offc Tower
1601 5th Avenue
Seattle, WA 98101-1618
Deborah L. Carstens
Bullivant Houser Bailey Pc
1601 Fifth Avenue
Suite 2400
Seattle, WA 98101
Jerret E. Sale
Bullivant Houser Bailey
2400 Westlake Offc Tower
1601 5th Avenue
Seattle, WA 98101-1618
Deborah L. Carstens
Bullivant Houser Bailey Pc
1601 Fifth Avenue
Suite 2400
Seattle, WA 98101
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BEHAILU TADESSE and IMMABETH ) NO. 48626-8-I
TADESSE, husband and wife, )
)
Appellants, ) DIVISION ONE
) v. )
) GABRIEL REYES and JANE DOE )
REYES, his wife, individually, and the )
marital community composed thereof; and )
BRET CALAWAY d/b/a TRANSPORT/ )
TRANSFERS, and BRET CALAWAY and )
JANE DOE CALAWAY, his wife, )
and the marital community composed )
thereof, ) Respondents. )
FILED:
PER CURIAM. Behailu Tadesse was injured when the back wheels of
Gabriel Reyes' truck ran over his foot. Prior to the accident, Tadesse was
apparently chatting with friends and was using the chassis of Reyes' truck
as a table on which to set his pizza and soda. Reyes testified that he did
not see Tadesse standing alongside his truck before he moved. The jury
returned a defense verdict. Tadesse appeals, claiming that the jury's
verdict was not supported by substantial evidence and that the trial court
erred in failing to give four proposed jury instructions. Finding no
error, we affirm.
FACTS
Tadesse and Reyes are both employed as commercial truck drivers. On
November 11, 1997, both were at Terminal 5 at the Port of Seattle.
Terminal 5 is leased from the Port by American President Lines and operated
by American President Lines. Tadesse and Reyes had both made deliveries
and pickups from Terminal 5 in the past and were familiar with the terminal
and its procedures. Terminal 5 contains several queuing lanes where the
truck drivers wait in line to deliver or pick up containers. The trucks
then proceed to scales where their containers are weighed.
Everyday, the truck drivers took a break from approximately 10 to
10:20 a.m. On November 11, 1997, Tadesse and Reyes were at Terminal 5
during the morning break. Reyes was parked at the front of lane 6.
Tadesse got out of his truck during the break and used the restroom,
purchased some snacks, and was talking with friends. One of these friends,
Edward Simmonds, was standing outside his truck next to Tadesse. The other
friend, Randy Vires, was in his truck in lane 5, the lane adjacent to the
lane where Reyes was parked.
At trial, there was disagreement over how the accident occurred and
whose fault it was. What all the witnesses agreed about was that somehow
Tadesse's foot was caught under one of the rear wheels of Reyes' truck.
Tadesse fell and was dragged under the truck. He was seriously injured and
required extensive medical treatment. The disagreement centered around
where Tadesse was standing when Reyes' truck started moving, whether Reyes
could have or should have seen him, and whether Reyes was required to take
additional safety precautions prior to moving.
Reyes testified that during the break, he was sitting in his truck with his
engine off. When the break ended, he restarted his truck. Prior to
moving, he looked into his mirrors. He saw a man with a beard standing
next to his truck. The man appeared to be talking to someone in an
adjacent truck. Reyes did not see anyone else near his truck. A couple of
seconds after he saw the man with the beard, Reyes began to move forward
toward the scale. He stopped because the man with the beard was waving his
arms.
The man with the beard was Edward Simmonds. Simmonds testified that during
the break, he and Tadesse were sharing a pizza and drinking sodas, using
the chassis of Reyes truck as a table. As Simmonds left to go back to his
truck, he told Tadesse, 'Catch you later. I think break is about over.'
As he walked away, Reyes truck began to move, and Simmonds jumped out of
its way. He then looked back at Tadesse, who was pivoting away from the
chassis of Reyes' truck with a soda in his hand. Simmonds yelled either,
'Look out Bob' or 'Don't get run over' to Tadesse.1 He saw a wheel of
Reyes' truck run over Tadesse's left foot, which pulled him down, and
Tadesse was run over by three of the truck's wheels.
Randy Vires was in his truck talking to Tadesse during the break. He
testified that prior to the accident, the break had ended. Other trucks
had started up, and he had started his own truck. Prior to Reyes' moving
his truck, the truck in front of Vires had started moving. He saw Tadesse
take a few steps forward alongside Reyes' truck before Reyes started to
move his truck. He yelled at Tadesse to look out. Tadesse turned to look
at Vires and was pulled down when the truck ran over his foot.
Tadesse apparently could not remember various details of the accident.
Initially, he testified that he did not remember whether he had any food or
beverages during the break. He later testified that he did have a soda.
He did not remember placing it on the chassis of Reyes' truck. During the
break, he was talking to Vires and Simmonds. Tadesse testified that he was
facing Vires when he was hit by Reyes' truck and that Reyes' truck was
behind him. He heard Vires yelling at him as he was hit and saw a look of
panic on Vires' face. Tadesse testified that the break had not yet ended
when the accident occurred. He did not remember walking prior to being
hit.
The witnesses disagreed about whether Reyes could have seen Tadesse prior
to moving. Reyes testified that he did not see Tadesse, although he did
check his mirrors. Reyes testified that in his mirrors, he could see
straight back alongside his truck. But he also testified that there was a
blind spot behind the cab of his truck and that he is unable to see the
front of his wheels on the back of his trailer. Detective Clement Jiminez
with the Port of Seattle investigated the accident, and he testified that
there was a blind spot just forward of the rear tires of the chassis on
Reyes' truck. Vires, who had not looked in the mirrors in Reyes' truck but
was familiar with those types of mirrors and truck, testified that there
would be no blind spot at the back of the trailer. He did concede that
there was a small blind spot next to the cab of the truck.
There was also some disagreement about whether a truck driver should do a
'walk around' before moving a truck. Reyes testified that he did one walk
around each day to check on his truck, but did not do one before moving at
the end of the break. He testified that to do so would be dangerous, as it
would put him at risk of being hit by another truck. He also testified
that it was not customary to do a walk around at a port facility due to the
risk factor. Simmonds also testified that he usually did a walk around
only once a day. Vires testified that a driver should do a walk around
before moving a truck. But he also testified that although he had walked
around his truck several minutes prior to the end of the break, he did not
do a walk around just before getting ready to move.
Reyes testified that it was unsafe for drivers to get out of their trucks
during the break and that many trucking companies do not allow their
drivers to leave their trucks during the break due to the danger. Simmonds
agreed that it was dangerous to be outside a truck during the break. He
also testified that it would be unsafe to stand where Tadesse was standing
just prior to the accident if the truck had started up. Vires testified
generally that being around trucks is not a safe situation. In contrast,
Tadesse did not agree that it was unsafe to be walking around trucks if
they were running.
After hearing this conflicting testimony, the jury returned a verdict in
favor of the defendant, Reyes. Tadesse brought a motion for judgment
notwithstanding the verdict, or in the alternative, for a new trial. That
motion was denied. This appeal follows.
DISCUSSION
Tadesse claims that the jury's verdict was not supported by substantial
evidence and that the jury was improperly instructed. We first address
Tadesse's claim that the trial court erred in failing to give certain
instructions to the jury. Refusal to give a requested instruction is
reviewed for an abuse of discretion. Stiley v. Block, 130 Wn.2d 486, 498,
925 P.2d 194 (1996). A trial court does not abuse its discretion if the
jury instructions permit each party to argue their theory of the case, are
not misleading, and properly inform the trier of fact of the applicable law
when read as a whole. Goodman v. Boeing Co., 75 Wn. App. 60, 877 P.2d 703
(1994), aff'd, 127 Wn.2d 401, 899 P.2d 1265 (1995).
Tadesse claims that the trial court erred in refusing to give four proposed
instructions. The first, based on RCW 46.61.245, provides:
A statute provides that a driver of a motor vehicle is required to exercise
due care to avoid colliding with any pedestrian upon any roadway, and to
shall {sic} give warning by sounding the horn when necessary.
The second instruction, based on RCW 46.61.300, provides:
A statute provides that no person shall start a motor vehicle which is
stopped, standing or parked unless and until such movement can be made with
reasonable safety.
The third instruction, based on RCW 53.08.230, provides:
The Terminal 5 facilities are located on Port of Seattle property leased to
American Presidents Lines. A statute provides that a {sic.} motor vehicle
regulations of the state shall apply to the properties owned by port
districts such as the Port of Seattle.
Finally, the fourth instruction, based on Washington Pattern Jury
Instructions 60.03, provides:
The violation, if any, or {sic} a statute is not necessarily negligence,
but may be considered by you as evidence in determining negligence.
Tadesse does not argue that the trial court erred in failing to give any
other instructions or allege any error in the other instructions given to
the jury by the trial court.
The first and second of these instructions would only apply if the
third instruction were applicable because traffic laws of Washington only
apply to the public highways of the State, with limited exceptions. RCW
46.61.005. The only exception potentially applicable here would be
contained in RCW 53.08.230, which provides:
A port district may at its option file with the county auditor a plat of
any of its properties or facilities, showing thereon such private streets,
alleys, access roads, parking areas, parks and other places as the port
district may wish to have treated as public for purposes of motor vehicle
or other police regulations. Such plat may be amended at any time by the
filing of an amendatory plat, and may be vacated at any time by the filing
of a resolution of vacation. So long as any such plat or amendatory plat is
on file and not vacated, the motor vehicle or other police regulations of
the state, and the motor vehicle regulations of the city, town or county,
as the case may be, in which the areas described in the plat are situated,
shall apply to such areas as though they were public streets, alleys,
access roads, parking areas, parks or other places, and it shall be the
duty of all state and local law enforcement officers to enforce such
regulations accordingly.
Tadesse's counsel candidly admitted at trial that he was not sure whether
the rules of the road applied at Terminal 5. Counsel also stated: 'I'm not
sure evidence was submitted about plat recording{.}'
In fact, the record does not reveal any evidence whatsoever to suggest that
a plat was filed as to Terminal 5 so as to trigger application of RCW
53.08.230.2 Based on the lack of evidence on this issue, the trial court
properly refused to give the third instruction. The court therefore also
properly refused to give the first and second instruction because these
instructions would only be appropriate were the traffic statutes
applicable, which they were not. Similarly, the trial court properly
refused to give the fourth instruction because no statutory violation was
at issue.
Moreover, as noted by the trial court, the instructions given by the trial
court adequately set forth Reyes' duty of care and allowed Tadesse to fully
argue his case to the jury. Jury instruction 8 provided:
Negligence is the failure to exercise ordinary care. Ordinary care means
the care that a reasonably careful person would exercise under the same or
similar circumstances. Negligence is the doing of some act which a
reasonably careful person would not do under the same or similar
circumstances or the failure to do something which a reasonably careful
person would have done under the same or similar circumstances.
Every person has a duty to see what would be seen by a person exercising
ordinary care. Further, every person has the right to assume that others
will use ordinary care and a person has the right to proceed on such
assumption until he or she knows, or in the exercise of ordinary care
should know, to the contrary.
The trial court did not abuse its discretion in refusing to give the
proposed additional instructions.
Having concluded that the jury was properly instructed, we now turn to
the issue of whether there was sufficient evidence to support the jury's
verdict. As a general rule, the determination of whether a defendant was
negligent is for the jury. The trial court may decide negligence as a
question of law only under the two unusual circumstances: (1) where "the
standard of duty is fixed, and the measure of duty defined, by law, and is
the same under all circumstances," and (2) "where the facts are undisputed
and but one reasonable inference can be drawn from them." Baxter v.
Greyhound Corp., 65 Wn.2d 421, 426, 397 P.2d 857 (1964) (quoting McQuillan
v. City of Seattle, 10 Wash. 464, 465, 38 P. 1119 (1895)). If reasonable
minds could differ, the question is one for the jury.
Tadesse argues generally that there was no substantial evidence to support
the jury's verdict. He claims that Reyes made undenied admissions that
necessarily point to the conclusion that Reyes was negligent as a matter of
law. Because Tadesse failed to provide this court with a complete
transcript of Reyes' testimony, we cannot fully analyze this issue. From
the testimony provided, it is clear that, contrary to Tadesse's claim,
Reyes did not admit that he would have seen Tadesse had he looked in his
mirrors immediately prior to moving. In response to questions from
Tadesse's attorney, Reyes testified that when he looked in his mirrors he
could see straight back along the right side of his truck, and that if
someone had been walking there, he would have seen him. But when
questioned by his own attorney, Reyes clarified his earlier testimony and
stated that there was a blind spot at the front of his wheels at the rear
of the truck. Reyes testified that had Tadesse been standing in that spot,
he could not have seen him and, in fact, he did not see Tadesse when he
checked his mirrors. Contrary to Tadesse's contention, substantial
evidence sustains the jury's verdict.
Tadesse argues that Reyes breached his duty to 'look-out' as a matter
of law, relying on Ashcraft v. Wallingford, 17 Wn. App. 853, 857-58, 565
P.2d 1224 (1977). In Ashcraft, the plaintiff was held to be contributorily
negligent as a matter of law (and thus barred from recovery under the
existing law) for failing to look into his rearview mirrors immediately
prior to having changed lanes. Ashcraft is distinguishable. In that case,
the evidence necessarily demonstrated where the defendant's vehicle was
located when the plaintiff began changing lanes. The court held that under
the facts presented, reasonable minds could not have differed on whether
the plaintiff would have seen the defendant's car had he looked in his
mirrors.
In contrast, the evidence as to Tadesse's location just prior to Reyes
moving his truck was conflicting. Likewise, depending on where Tadesse was
standing, Reyes may or may not have been able to see Tadesse. As the jury
was properly instructed, Reyes had a duty to see what could be seen; but
Reyes did not have a duty to see what could not be seen. Because
reasonable minds could differ on what Reyes could have seen, the question
of whether he breached his duty of care was a question for the jury.
Ashcraft is also distinguishable because the plaintiff in that case
was attempting to make a lane change, and thus had a duty to look
immediately prior to moving, and as he moved, to make sure no other
vehicles were in the lane next to him. Here, Reyes was moving forward.
Had Reyes been looking in his mirrors to see what was behind and/or next to
him as he moved, he could not have seen what was directly in front of him.
To do so may have caused a different type of accident. A driver does not
have a duty to see everything in all directions at once. Whether Reyes
breached his duty of care by looking in his mirrors a few seconds before he
moved was a question for the jury.
Tadesse also alleges that Reyes breached his duty of care by failing
to do a 'walk around' of his vehicle before moving. This argument is
without merit. There was no general consensus from the witnesses that due
care required doing a walk around. Tadesse's own witnesses testified that
they did walk arounds only once a day, not every time they moved their
trucks. Indeed, some witnesses testified that doing a walk around under
these circumstances would itself have been unsafe. A reasonable jury could
have concluded that Reyes was not negligent in failing to do a walk around
prior to moving his truck.
Tadesse next argues that Reyes was negligent as a matter of law in
failing to sound his horn before moving. Tadesse points to no authority to
suggest that a driver has a duty to sound his or her horn under these
circumstances. No witness, expert or otherwise, testified that due care
required Tadesse to sound his horn prior to moving. At best, this was a
question for the jury.
Tadesse also argues that Reyes breached his duty to proceed safely as a
matter of law. Again, this was a question for the jury. Under the facts
as presented, a reasonable jury could have concluded that Reyes complied
with his duty to exercise ordinary care. While Reyes had a duty to see
what could be seen, the evidence was conflicting as to whether he could
have seen Tadesse had he exercised further precautions. Tadesse was not
entitled to judgment as a matter of law.
Finally, Tadesse argues he is entitled to a new trial under CR 59(a)(1).
After Tadesse was cross-examined, the court took a break. During the
break, on Wednesday, February 28, 2001, an earthquake hit the Puget Sound
region. The trial was therefore recessed until the following Tuesday,
March 6, 2001. Tadesse argues that the delay caused by the earthquake
constituted an irregularity in the proceedings warranting a new trial.
CR 59(a)(1) allows the trial court to grant a new trial when an
irregularity in the proceedings prevents a party from having a fair trial.
A new trial may be ordered only when the irregularity substantially affects
the rights of the aggrieved party. CR 59(a). Tadesse argues that he was
prejudiced because the delay caused by the earthquake occurred just after
he was cross-examined, leaving the jury to 'deliberate' Tadesse's testimony
for several days. This claim is without merit. Tadesse did not object to
the delay during the trial, and he made no claim of prejudice until after
the jury returned a defense verdict. As Reyes points out, trials are
routinely delayed due to illness, scheduling conflicts, holidays, and many
other factors. The trial court did not abuse its discretion in denying
Tadesse's motion for a new trial.
Affirmed.
FOR THE COURT:
1 Tadesse apparently goes by the name 'Bob.'
2 Only portions of the record were transcribed.
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