James C. Fuda, Doriane Beaupre & Chad Beaupre, Apps./cross-resps. v. King County, Resp./cross-app. ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES C. FUDA, individually and as
personal representative of the estate of No. 74033-4-1
AUSTIN FUDA; TYLER FUDA, and (consolidated with
KELEIGHN FUDA, individually and as No. 74630-8-1)
statutory beneficiaries; DORIANNE
BEAUPRE, individually and as personal
representative of the estate of HUNTER DIVISION ONE
BEAUPRE; and CHAD BEAUPRE,
individually, UNPUBLISHED OPINION
Appellants,
v.
04)('
KING COUNTY, a municipal corporation; >„70
LONI MUNDELL, a single person, JOHN •-"."1 C:)
and JANE DOE EMPLOYEES 1-25, -n.t.)..71
o
husband and wife, a marital community; > m
DOE COMPANIES 1-25, companies doing 3:s. Pi 4
r-
business in the state of Washington, 9 c)v)
FILED: October 9, 2017 CA)
Respondents. 0 a: -‹
APPELWICK, J. — Fuda challenges the application of the discretionary
immunity doctrine. The doctrine prevented the jury from considering whether the
County should be liable for the deaths of two children because it negligently failed
to install a guardrail at the site of the fatal crash. Fuda also challenges the
imposition of sanctions. We affirm.
FACTS
On November 7, 2008, 16 year old Loni Mundell was driving 13 year old
Austin Fuda and 2 year old Hunter Beaupre on Green River Road in King County.
No. 74033-4-1/2
As the road curved, she lost control of the vehicle, crossed the other traffic lane,
and left the road. The vehicle traveled down an embankment and into the Green
River. Mundell survived, but Fuda and Beaupre died.
Beaupre and Fuda's estates brought separate claims for wrongful death
against King County (County) and Mundell, among others. Their claims were
consolidated.1 The County moved for summary judgment based on discretionary
immunity.
The County and its engineers use a "priority array" system to rank and
determine which county roads should receive guardrails. In 1994, County engineer
Norton Posey visited the site of the accident. He measured the width of the
shoulder to be 10 feet. Based on the 1993 King County road standards, a guardrail
was therefore not warranted at the accident site. Because guardrails were placed
on other areas of Green River Road in 1990 and 1994, Green River Road was
removed from the priority array at Posey's direction. In its motion for summary
judgment, the County claimed that the decision to remove the accident site from
its guardrail priority array program was entitled to discretionary immunity.
The trial court held that "King County's decision to remove the Green River
Road from King County's guardrail priority array program is entitled to discretionary
immunity." Any guardrail evidence was therefore excluded. Fuda's remaining
negligence claims were that the County was negligent for (1) allowing trees to
overhang the roadway, (2) failing to sweep wet leaves, (3) failing to place warning
1 We refer to the appellants collectively as "Fuda."
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No. 74033-4-1/3
signs prior to the curve, (4) striping the road with substandard lane width, and (5)
constructing the roadway with a soft shoulder. The jury returned verdicts finding
both the County and Mundell2 not negligent. Fuda appeals.3
DISCUSSION
Fuda makes five arguments. First, he argues that the trial court erred in
granting discretionary immunity to King County for its decision not to install a
guardrail at the accident site. Second, he contends that the trial judge
misinterpreted previous summary judgment orders regarding discretionary
immunity. Third, he assigns error to the jury instructions. Fourth, he argues that
the trial court erred in imposing sanctions. Fifth, he argues cumulative error.
I. Discretionary Immunity
Fuda first argues that the trial court erred in granting the County's motion
for summary judgment regarding all guardrail evidence. Fuda contends that this
was error, because Posey's measurements and removal of the road from the
priority array were an operational function, not a policy matter, and therefore not
within the County's discretionary immunity. The decision to remove the area in
question from the priority array program was supervised by Posey. He removed
the area from guardrail priority after a field visit that showed that the shoulder at
the accident site was wider than 10 feet. Under the program's standards the 10
2 Mundell argues that the jury's special verdict finding Mundell not negligent
precludes any contributory negligence arguments on remand. But, because we
affirm, we need not address whether Mundell's negligence would be at issue in the
event of remand.
3 Although it prevailed at trial, King County also appealed various trial court
rulings. However, neither King County nor Mundell assigns any error in their briefs.
Therefore, we do not address the rulings appealed by King County.
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No. 74033-4-1/4
foot wide shoulder meant that the road did not warrant placement of guardrail. The
trial court ruled that this decision was entitled to discretionary immunity.
When reviewing a summary judgment order, we engage in the same inquiry
as the trial court. Hertog v. City of Seattle, 138 Wash. 2d 265, 275, 979 P.2d 400,
406 (1999). Summary judgment is proper when there are no genuine issues of
material fact, and the moving party is entitled to judgment as a matter of law. Id.
All facts and reasonable inferences are considered in the light most favorable to
the nonmoving party. Id. Questions of law are reviewed de novo. Id.
Our Supreme Court explained the nature of discretionary immunity in
Evangelical United Brethren Church of Adna v. State, 67 Wash. 2d 246, 407 P.2d 440
(1965). The Evangelical court noted that "in any organized society there must be
room for basic governmental policy decision and the implementation thereof,
unhampered by the threat or fear of sovereign tort liability." Id. at 254. In other
words, "'it is not a tort for government to govern.'" Id. at 253 (quoting Dalehite v.
United States, 346 U.S. 15, 57, 97 L. Ed. 1427, 73 S. Ct. 956 (1953) (Jackson, J.,
dissenting)).
Holding that it is necessary to draw the line between "truly discretionary and
other executive and administrative processes," the Evangelical court announced a
four factor test to determine when discretionary immunity applies:
(1) Does the challenged act, omission, or decision necessarily
involve a basic governmental policy, program, or objective? (2) Is
the questioned act, omission, or decision essential to the realization
or accomplishment of that policy, program, or objective as opposed
to one which would not change the course or direction of the policy,
program, or objective? (3) Does the act, omission, or decision
require the exercise of basic policy evaluation, judgment, and
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No. 74033-4-1/5
expertise on the part of the governmental agency involved? (4) Does
the governmental agency involved possess the requisite
constitutional, statutory, or lawful authority and duty to do or make
the challenged act, omission, or decision?
Id. at 255. The court held that "[i]f these preliminary questions can be clearly and
unequivocally answered in the affirmative, then the challenged act, omission, or
decision can, with a reasonable degree of assurance, be classified as a
discretionary governmental process and nontortious, regardless of its unwisdom."
Id. Our Supreme Court has also held that discretionary immunity is a narrow
doctrine, limited to " 'discretionary' " acts, not " 'ministerial' " or " 'operational' "
ones. Taggart v. State, 118 Wash. 2d 195, 214, 822 P.2d 243 (1992) (quoting
Evangelical, 67 Wash. 2d at 254-55). In order for a decision to qualify as
discretionary, the State must show that the decision was the outcome of a
conscious balancing of risks and advantages. Id. at 214-15.
The outcome of the discretionary immunity claim turns on the application of
the Evangelical factors. The first factor asks whether the decision was part of a
basic governmental program. Evangelical, 67 Wash. 2d at 255. As Posey stated in
a declaration, "The goal of King County's Guardrail Priority Program is to use the
yearly money allocated by the King County Council to construct guardrail[s] at as
many locations within the County as possible with the highest need first." Creating
and maintaining road safety features is a basic governmental program. Installation
of guardrails was part of such a program. We hold that the first factor is therefore
satisfied.
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No. 74033-4-1/6
As to the second factor, whether the act is essential to effectuate the policy,
having a priority system that identifies areas of most need is part of allocating a
limited budget. Without a ranking system that accounts for key safety factors.,
decision makers would be left to guess at the areas of most need, or, alternatively,
would not be able to adequately identify need at all. The prioritization of areas of
need in the county is essential to the realization of the guardrail safety program.
Third, questions of policy judgment are covered by discretionary immunity
only if made by high level executives as a result of conscious balancing of risks
and advantages. See Taggart, 118 Wash. 2d at 215. Fuda acknowledged that the
engineer who created the priority array, County Road Engineer Louis Haff, was a
"high level executive." The array determines priority of projects based on
comparative factors aimed at identifying the most urgent needs.
But, Fuda asserts that the most important party is Posey, because he
measured the area at issue, determined that it did not need a guardrail under the
County standards, and removed it from the array. Fuda does not allege that Posey
or the County negligently measured the roadway, nor does Fuda allege that the
County was negligent in creating the County road standards. Fuda alleges that
the County was negligent for removing the roadway from the priority array.4 But,
4 In a declaration, Posey stated that, even if he did not remove the location
from the priority array in 1994, the guardrail's position in the priority array would
have meant that guardrail would not have been installed at the location until 2014
or 2015. In his briefing, Fuda does not make any argument contesting this fact.
Nor does he point to any portion of the record that contradicts Posey's statement.
The record supports the trial court's conclusion that the uncontroverted evidence
is that Fuda has not established cause in fact. Therefore, even if we held that
discretionary immunity does not apply, reversal on the guardrail issue would not
be warranted, because Fuda has not established cause in fact.
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No. 74033-4-1/7
Posey removed the section of road at issue based on County road standards which
stated that a road with a shoulder wider than 10 feet did not need guardrail. Posey
was simply providing data for the algorithm that implemented the priority array.
See Jenson v. Scribner, 57 Wash. App. 478, 483, 789 P.2d 306 (1990) (holding that
"data collection is merely a function of planning and is, thus, a part of the State
decisionmaking process. It is not the implementation of a decision. As a result, it
is a discretionary act for which there is immunity." (citation omitted)). Fuda does
not contend that Posey was negligent in measuring the accident site or that the
algorithm itself is defective. Thus, Fuda's claim is either to the County's policy
choice to use a priority array or its budget decision for guardrail implementation.
Such decisions are the kind of conscious balancing of risks and advantages by
high level executives that discretionary immunity applies to. See Taggart, 118
Wash. 2d at 214-15. The act or omission alleged—the failure to install a guardrail—
required the exercise of basic policy judgment. The third factor is satisfied.
The last factor—whether the County had authority to make the decision in
question—is not at issue here. Id. at 255. Therefore, each of the Evangelical
factors is satisfied. The trial court correctly applied the doctrine of discretionary
immunity.
We have previously reached a similar conclusion and held that discretionary
immunity applied to a guardrail claim. See Avellaneda v. State, 167 Wash. App. 474,
484-85, 273 P.3d 477 (2012). The State used a priority array similar to the
County's. See id. at 476-77. The court analyzed the Evangelical factors, and
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No. 74033-4-1/8
determined that discretionary immunity applied to the failure to construct a barrier
based on the State's priority array system. Id. at 482-84.
Fuda contends that we reached the opposite result in Ruff v. County of King,
72 Wash. App. 289, 865 P.2d 5 (1993), rev'd on other grounds, 125 Wash. 2d 697, 867
P.2d 886 (1995), and that it should control over Avellaneda.5 In Ruff, the County
argued that its guardrail priority array shielded it form liability due to discretionary
immunity. Id. at 294. Applying the Evangelical test, the court disagreed:
Here, King County has not demonstrated that its guardrail
program fits within this exception. Unlike Jenson whose median
barrier installation program derived from the policy making of the
transportation commission and the Legislature, King County has not
established factually that its guardrail installation program is anything
more than a routine administrative matter. The County attributes the
program's initiation to Haff's efforts and indicates that the King
County Council authorized the annual budget. There is no evidence,
however, showing that the council had a specific objective in mind or
paid particular attention to this project. Funding for road
improvements is not the equivalent of exercising a considered policy
decision as to one specific guardrail installation. There is no
indication that the staff could not change the priority of the projects
on the list or that continued funding of the program to complete this
project was assured. Nor does the evidence establish that Haff or
the special engineer he hired was a "truly executive level" personnel.
Therefore the creation and implementation of its guardrail
prioritization program does not, under these facts, immunize it from
suit.
Id. at 296.
Fuda argues that his claim is akin to Ruff's in that the failure to install a
guardrail is merely a component of his claim that the County was negligent in its
duty to provide reasonably safe roads. But, discretionary immunity turns on
5 Avellaneda, 167 Wash. App. 474, did not cite Ruff in its analysis.
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No. 74033-4-1/9
•whether the facts of this case ultimately satisfy the Evangelical factors.6 In Ruff,
the County did not present the evidence necessary to support the Evangelical
factors.7 Here, they do. Fuda was not entitled to present the absence of the
guardrail as a basis for negligence. He was, however, entitled to present all of the
other alleged negligent acts or omissions. The jury rejected the claim that any of
those acts or omissions caused the deaths.
The trial court did not err in granting the County's motion for summary
judgment based on discretionary immunity.
II. Orders in Limine
Fuda assigns error to the trial court's orders in limine that excluded certain
evidence. He argues that it misinterpreted the scope of previous trial judge's
rulings regarding guardrail evidence at trial. We review the grant or denial of a
pretrial motion to exclude evidence for an abuse of discretion. See Douglas v.
Freeman, 117 Wash. 2d 242, 255, 814 P.2d 1160 (1991).
6 In his reply brief, Fuda argues that application of the Evangelical factors
to the failure to install a guard rail is not warranted. He contends that these factors
are not relevant, because his overarching claim is not that the County negligently
failed to install a guardrail, but that the County negligently failed to maintain the
road in a safe condition. But, he nevertheless stresses that reversal is warranted
under Ruff, where the court applied the Evangelical factors. Thus, Fuda effectively
claims that the priority array decision should not be subject to the Evangelical
factors, while also relying heavily on a case where the court applied the
Evangelical factors to a priority array. We do not find this contention persuasive.
7 On review, our Supreme Court reversed the Court of Appeals decision in
Ruff, but on the grounds that Ruff had not established that the County was
negligent in maintaining the roadway. See Ruff, 125 Wash. 2d at 706-07. The
Supreme Court explicitly declined to address the Court of Appeals' discretionary
immunity analysis. Id. at 707.
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No. 74033-4-1/10
Judge Bill Bowman8 granted the County's summary judgment motion
regarding guardrail claims. That order stated:
1. King County's decision to remove the Green River
Road from King County's guardrail priority array program is entitled
to discretionary immunity.
2. Norton Posey's shoulder measurements constitute
data gathering which is part of the decision making process.
Accordingly it is also entitled to discretionary immunity.
3. To the extent Mr. Posey's actions could be
characterized as implementing the priority array program, the
undisputed testimony is that the guardrail still would not have been
installed at the time of this incident given its position in the array.
2. [sic] For these reasons, Defendant King County's Motion for
Summary Judgment regarding Plaintiffs' guardrail claims is
GRANTED.
Moreover, Judge Bowman incorporated his oral ruling, which stated in part:
The kind of decisions that would be outside the discretionary
immunity would be negligent implementation of the program itself,
which is a very different thing than determining what is included and
what is not included.
And so the decision of Mr. Posey to evaluate and not to
include this particular roadway in the array for construction of the
guardrail I think is very much the same type of calculation that was
made in the Avellaneda case, and I think is subject to the same
discretionary immunity that Highway 512 was in Avellaneda. And,
therefore, I will grant King County's motion with regard to the
guardrail construction.
Later, in an order denying reconsideration, Judge Bowman clarified these rulings
as follows:
To the extent the Plaintiffs' [sic] seek clarification, the issues
before the Court were whether the County was entitled to
discretionary immunity for its decision in 1994 to remove this
8For clarity, we refer to the two judges, Judge Bowman and Judge Tanya
Thorp, by their names.
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No. 74033-4-1/11
accident site from its priority array and whether the data gathering
process that supported that decision was entitled to discretionary
immunity. The Court addressed both of those issues in the order.
No other issues were before the Court.
Judge Tanya Thorp presided over trial. Fuda argues that two of her orders in
limine used an erroneously broad interpretation of Judge Bowman's prior summary
judgment order.
A. Order in Limine Six
First, Fuda argues that Judge Thorp erred in granting motion in limine six.
That decision excluded any references to guardrails in three specific time periods:
1988-1994, 1994, and 1994-November 7, 2008. Fuda contends that, because
Judge Bowman's summary judgment order related to the 1994 decision to remove
the site from the priority array, references to guardrails for any time periods besides
1994 were not barred by that order. Judge Bowman's order referenced the year
1994 only to identify when Posey's decision occurred. The jury was well aware of
the fact that no guardrail was in place at the time of the accident. Fuda wished to
address whether the County had a duty to have it in place. The discretionary
immunity ruling resolved both whether a guardrail should have been in the array
and whether it should already have been in place. Fuda's argument that the order
was more limited is unfounded. The trial court did not abuse its discretion in
granting motion in limine six.
B. Order in Limine 13
Fuda also argues that the trial court erred in granting motion in limine 13.
That order granted the County's motion and limited Toby Hayes's testimony
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No. 74033-4-1/12
preventing him from discussing the probability of death as a result of vehicle
hypothetically impacting a guardrail. Hayes' declaration opined that if a guardrail
had been present at the site, serious injuries would have been avoided. The trial
court's reasoning for granting motion in limine 13 stated "See ruling on motion
number 6."
For the same reasons that the trial court did not abuse its discretion in
granting motion in limine 6, it did not abuse its discretion in granting motion in
limine 13. If any references to guardrails were excluded from trial, Hayes's
testimony on the likelihood of injuries upon impact with a guardrail necessarily had
to be excluded. The trial court did not abuse its discretion in excluding all
references to guardrails, and therefore did not abuse its discretion in excluding
Hayes's testimony about the likelihood of injury upon an impact with guardrails.
III. Jury Instructions
Fuda argues that the jury instructions were erroneous. He primarily assigns
error to the jury instructions' omission of guardrails, which was a result of the trial
court's discretionary immunity ruling. As a result of this omission, he contends that
misstated the law and prevented Fuda from fully arguing his theory.
Whether to give a certain jury instruction is reviewed for abuse of discretion.
Fergen v. Sestero, 182 Wash. 2d 794, 802, 346 P.3d 708 (2015). The propriety of a
jury instruction is governed by the facts of the particular case. Id. at 803. Jury
instructions are generally sufficient if they are supported by the evidence, allow
each party to argue its theory of the case, and, when read as a whole, properly
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No. 74033-4-1/13
inform the trier of fact of the applicable law. Id. Legal errors in jury instructions
are reviewed de novo. Id.
A. Jury Instruction 14
Fuda assigns error to jury instruction 14. That instruction stated that Fuda's
negligence claim was based on the County allowing trees to overhang the road,
failure to sweep wet leaves, failure to place warning signs, the lane width, and the
type of shoulder. But, Fuda argues that it should have mentioned failure to install
a guardrail or barrier because this could more completely describe the basis of his
claim. Whether instruction 14 was erroneous therefore turns on whether the order
in limine that barred mentioning of guardrails was erroneous. And, as discussed
above, it was not. Therefore, jury instruction 14 was not erroneous.
B. Jury Instruction 15
Modeled after 6A Washington Practice: Washington Pattern Jury
Instructions: Civil 140.01, at 59-61 (6th ed. 2012) (WPI), jury instruction 15 stated
that the county has a duty to exercise ordinary care in the construction and
maintenance of its roads:
Counties have a duty to exercise ordinary care in the design,
construction, maintenance, and repair of their public roads to keep
them in a reasonably safe condition for ordinary travel. This duty is
owed to all persons whether those persons are negligent or fault free.
A county does not have a duty to (1) anticipate and protect
against all imaginable acts of negligent drivers, (2) update every road
and roadway structure to present-day standards, or (3) make a safe
road safer.
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Instead of the second paragraph that discusses limitations on the County's duty,
Fuda proposed that the instruction also clarify the specifics of the County's duty:
. . . This duty is owed to all persons whether those persons are
negligent or fault free.
This duty includes the duty to eliminate an inherently
dangerous or misleading condition. The duty requires the County to
reasonably and adequately warn of a hazard and maintain adequate
protective barriers where such barriers are shown to be practicable
and feasible.
If you find the Green River Roadway was inherently
dangerous or misleading, you must determine the adequacy of the
corrective actions under all of the circumstances. If you determine
the County's corrective actions were adequate, then you must find
the County has satisfied its duty to provide reasonably safe roads.
Fuda contends that failure to give this proposed instruction was erroneous,
because the instruction given focused on limitations on the county's duty, but did
not mention the county's affirmative obligations. Fuda did not present a proper
alternative instruction. It interjected the duty to maintain protective barriers which
was an end run on the discretionary immunity ruling. The court was correct to
reject Fuda's proposed instruction, because a guardrail is a barrier. And, Fuda
does not demonstrate that the pattern instruction given was a misstatement of the
law. His argument is that the instruction was one-sided. But, jury instructions are
heavily dependent on the facts of the case, and within the trial court's discretion.
Feroen, 182 Wash. 2d 802-803. On these facts, the trial court did not abuse its
discretion giving instruction 15.
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No. 74033-4-1/15
C. Jury Instruction 16
Fuda assigns multiple errors to jury instruction 16. This instruction stated
that, in order to find the county negligent, the jury must find that the county had
notice of an unsafe condition.9
First, he contends that the explanation of notice was in error. The
instruction stated that a county is deemed to have notice if, under ordinary care, it
should have discovered the condition. But, Fuda contends that the instruction
should have also informed the jury of scenarios where no notice is required, such
as when the government itself created the unsafe condition. But, the comment to
the pattern instruction that this instruction was modeled after, WPI 140.02, states
that no such special notice instruction is required when the condition was created
by the county. See WPI 140.02 authors' cmts at 64. This is because WPI 140.01,
which instruction 15 was modeled after, adequately covers such situations by
stating that the county has a duty to exercise ordinary care in the construction and
maintenance of its roads. Id. We conclude that the trial court did not abuse its
discretion by not giving the additional special instruction on notice.
Fuda also contends that instruction 16 was erroneous, because it did not
include the County's duty to maintain protective barriers where feasible. But,
again, for the same reason that the trial court did not err in excluding references to
9 While the instruction did not single out any single condition of which the
County must have had notice, Fuda's negligence claims involved: (1) allowing
trees to overhang the roadway, (2) failure to sweep wet leaves, (3) failure to place
warning signs at the curve, (4) striping the road with substandard lane width, and
(5) constructing the roadway with a soft shoulder.
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No. 74033-4-1/16
barriers, it did not err in excluding the county's duty to maintain barriers in
instruction 16.
Fuda's final alleged error in instruction 16 is that it included two sources of
inapplicable law. It included a statement that a county cannot be negligent if it only
knew that an unsafe condition might, or even probably, develop. This language
comes from the holding in Laguna v. State, 146 Wash. App. 260, 265, 192 P.3d 374
(2008), that moisture and freezing temperatures are only potentially dangerous
conditions. Fuda argued to the trial court that the accumulation of leaves and wet
debris is distinguishable from the moisture and freezing temperatures that were
present in Laguna. Therefore, he claimed, it was not merely a potential danger,
but an existing danger. But, we believe that this condition is sufficiently analogous
to the moisture and freezing temperatures that warranted this instruction in
j_aquna. It is a seasonal variation on the roadway surface that may or may not
occur at various times. But, once the ice forms, the risk is there to be discovered,
just as it is when the leaves fall and accumulate. Therefore, akin to Laguna,
informing the jury that the County was not responsible for potential or probable
dangers was not error.
The second sentence that Fuda contends used inapplicable law stated that
the County has no duty to inspect its roadways. Fuda acknowledges that that
sentence was grounded in The-Anh Nquyen v. City of Seattle, 179 Wash. App. 155,
171, 317 P.3d 518 (2014). But, like in Nguyen, Fuda "cites no common law,
statutory, or regulatory authority requiring a municipality to inspect its street
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No. 74033-4-1/17
infrastructure as a component of its duty to provide streets that are reasonable
safe for ordinary travel." Id. The trial court acted within its discretion in determining
that the jury should be instructed not to impose a duty to inspect.
D. Jury Instruction 17
Jury instruction 17 stated in relevant part that the jury may not use testimony
regarding the presence or absence of guardrails. Fuda argues that this was error,
because the trial court erred in holding that discretionary immunity applied to the
decision not to install a guardrail, and because the trial court misinterpreted prior
orders. These arguments fail for the same reasons that Fuda's discretionary
immunity arguments fail.
IV. Sanctions
The trial court sanctioned Fuda for multiple actions. Those actions primarily
related to (1) violation of orders in limine and (2) late disclosure of expert witness
testimony. This court reviews a trial court's imposition of sanctions for abuse of
discretion. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash. 2d
299, 338, 858 P.2d 1054 (1993). A trial court abuses its discretion when its order
is manifestly unreasonable or based on untenable grounds. Id. at 339.
A. Sanctions for violation of orders in limine
Order in limine 4g excluded any references to how the deaths have affected
family or friends. Fuda's attorney Ann Deutscher was sanctioned for repeatedly
violating this order. The trial court's order imposing sanctions listed roughly eight
instances where witnesses discussed personal grief, often elicited by counsel's
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No. 74033-4-1/18
questioning. After the court had already "addressed at length the multiple
violations of 'these simple orders,' "the court found that counsel continued to invite
violation of order in limine 4g. The court therefore imposed sanctions of $1000
against Fuda's attorney Deutscher.
Fuda asks this court to reverse the imposition of these sanctions, because
inexperienced witnesses "often give unanticipated answers." But, the trial court's
findings suggest that the trial court had a sufficient factual basis to conclude that
this went beyond mere witness inexperience. Fuda violated order 4g multiple
times. Then, the court cautioned the parties. Then 4g was again violated. After
the trial court's warning, Deutscher even stated to witness Colette Peterson,
Hunter Beaupre's stepmother, in front of the jury, "You have been through a lot."
The trial court's lengthy and detailed explanation for its ruling, with multiple
references to portions of the record, satisfy us that the decision was not manifestly
unreasonable, or based on untenable grounds.
The trial court also sanctioned Fuda's attorney James Dore, Jr., for violation
of the order in limine that excluded the guardrails issue. Before Dore examined
witness Marlene Ford, the court and the parties discussed at length the extent to
which the orders in limine limited Ford's ability to discuss the condition of the road.
But, a short time later, while questioning Ford, Dore read verbatim from a
deposition transcript that explicitly mentioned guardrails. The County immediately
objected and asked for "a very steep monetary sanction." The court imposed
$2000 in sanctions against Dore. Its findings stated that Dore "extensively argued
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No. 74033-4-1/19
with the Court about its clear ruling" before Dore mentioned guardrails, and that
mentioning guardrails after arguing with the court was an "intentional violation" of
the court's orders. .
Fuda argues that the transcript shows that Dore's uttering of the word
guardrail was inadvertent. The trial court's order noted counsel's prior
argumentative tone about its "clear ruling," yet counsel nevertheless violated those
rulings. There was a lengthy exchange between the court and counsel prior to the
violation about the permissible scope of testimony as it related to guardrails. The
abuse of discretion standard recognizes that deference is owed to the judicial actor
who is better positioned than another to decide the issue in question. Fisons, 122
Wash. 2d at 339. In the context of this lengthy trial, the trial court was best positioned
to evaluate whether the sanctions were warranted. It did not abuse its discretion
in sanctioning Dore.
Fuda also contends that the amount of the monetary sanctions of $2000
against Dore, and $1000 against Deutscher, were excessive. RCW 7.21.050(2)
gives statutory authority to courts to impose sanctions up to $500 for each separate
instance of contempt. A court may impose sanctions beyond statutory authority,
and instead under its inherent contempt power, only if it finds that the statutory
basis would be inadequate. State v. Boatman, 104 Wash. 2d 44, 48, 700 P.2d 1152
(1985). Fuda contends that the trial court erred in concluding that the statutory
authority was insufficient. He contends that the trial court's explanation was merely
conclusory.
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No. 74033-4-1/20
But, the trial court's 19 page order imposing sanctions of over $500
referenced four separate categories of sanctionable conduct, by multiple
attorneys. The trial court warned counsel before subsequent violations of orders
in limine. Counsel disclosed experts late, violated multiple motions in limine, and,
with references to the transcript, the trial court even observed that counsel
"extensively argued with the Court" about clear rulings. The trial court viewed
these violations as intentional. The finding that statutory contempt authority would
be insufficient was not merely conclusory. The trial court did not err in assessing
sanctions beyond statutory limits.10
B. Sanctions for late disclosure of experts
The trial court also imposed sanctions on Fuda for late disclosure of experts.
Two days before trial, Fuda disclosed that his experts would be expressing
opinions on "barriers," rather than "guardrails." According to the trial court, "In all
material respects the disclosures were identical to the reports previously prepared
by the experts regarding the need for and effect of guardrails." And, the trial court
concluded that "[o]ffering new opinions that simply substitute the word 'barrier' for
the word 'guardrail' just days before trial was a blatant effort to circumvent the
Court's July 26, 2014 Order granting summary judgment and its order granting
King County's Motions in Limine Nos. 6 and 7." The trial court therefore excluded
these new expert opinions.
1° To exercise its inherent contempt authority beyond statutory authority, the
court must also comply with due process. See Boatman, 104 Wash. 2d at 48. But,
Fuda does not argue that the trial court's actions violated due process.
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No. 74033-4-1/21
Fuda argues that the trial court erred, because at other points pretrial he
and his experts gave notice that barriers other than guardrails might be referenced.
He notes that his complaint referenced "barriers," not just guardrails. And, his
experts referenced other barriers in their depositions. But, given the centrality of
the barrier/guardrail argument to his case, it is implausible to believe the ruling on
discretionary immunity would not encompass the duty of the County as to any and
all barriers. And, the disclosure occurred after the discovery cutoff. Even, if there
was a meaningful distinction between guardrails and barriers, the County did not
have the benefit of deposing Fuda's experts on that distinction. And, the County
would be disadvantaged in preparing its own experts on barriers. The trial court
did not err in sanctioning Fuda for late disclosure of experts.
Fuda also argues that the trial court's decision on the level of sanction—
excluding the expert opinions—was excessive. He argues that continuing trial, for
example, would have been a more appropriate lesser sanction than exclusion of
the expert opinions.
A trial court may exclude expert testimony as a sanction upon a showing
that (1) the discovery violation was willful or deliberate, (2) the violation
substantially prejudiced the opponent's ability to prepare for trial, and (3) the court
explicitly considered less severe sanctions. Teter v. Deck, 174 Wash. 2d 207, 216-
17, 274 P.3d 336 (2012). The record supports the trial court's conclusion that the
late disclosure was willful, because the plaintiffs violated the trial court's guardrail
orders in other instances, as well. The County was prejudiced, because the
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No. 74033-4-1/22
disclosure was made two days prior to trial, but the case had been in litigation for
over four years leading up to trial. And, the court explicitly identified that less
severe sanctions, such as monetary sanctions, would not be sufficient, because
the County would be forced to respond to brand new expert testimony a mere two
days before trial. Even if monetary sanctions were imposed, the County would still
suffer a heavy burden of preparing to address these new opinions. The trial court
did not abuse its discretion in excluding the expert opinions regarding barriers."
We affirm.
WE CONCUR:
11 Fuda also argues cumulative error warrants reversal. But, because we
find no error, we find no cumulative error.
22