Kappelman v. Lutz , 141 Wash. App. 580 ( 2007 )

Sweeney, C.J.

¶1 The decision by a trial judge to exclude evidence is a decision vested in the discretion of the trial judge, not us. And we will overturn that decision only when we conclude that the trial judge has abused his or her discretion by refusing to admit the evidence. Here, the judge refused to admit evidence that the operator of a motorcycle did not have the proper endorsement to carry a passenger or drive at night. We are unable to conclude that the trial judge abused his discretion by refusing to admit evidence that the defendant was not properly licensed. We therefore affirm the jury’s verdict for the defendant.

FACTS

¶2 Theodore J. Lutz took Amber L. Kappelman for a ride on his motorcycle at night. He had only an instructional permit. He did not have a motorcycle endorsement. And so he could not legally carry passengers or drive at night. He struck a deer while on the trip with Ms. Kappelman, and she was injured. She sued him for damages.

¶3 Mr. Lutz moved at trial to exclude evidence that he was not properly licensed. He argued that the evidence was not relevant and that the prejudicial value of the evidence outweighed its probative value. The trial judge agreed and refused to admit evidence that Mr. Lutz did not have the appropriate state license to carry passengers on his motorcycle or to drive it at night. And the trial judge refused to admit evidence that Mr. Lutz had violated the terms of his permit.

¶4 Ms. Kappelman showed that she had no experience on motorcycles. She showed that she was not properly garbed for the ride: she wore only jeans, a tank top, a zip-up sweatshirt, and sandals. She showed that Mr. Lutz probably made errors in judgment in maneuvering his motorcycle as he tried to avoid the deer. She showed he was speeding. She showed that he hit the brakes and lost control of the motorcycle. And she showed that all of this took place at night.

¶5 The jury nonetheless returned a verdict in favor of Mr. Lutz.

DISCUSSION

¶6 Ms. Kappelman contends the court erred by refusing to allow evidence that Mr. Lutz violated the conditions of his permit by carrying her on the motorcycle and driving it at night. We review a trial judge’s decision to exclude evidence for abuse of discretion. Thornton Creek Legal Def. Fund v. City of Seattle, 113 Wn. App. 34, 58, 52 P.3d 522 (2002). The conclusion “abuse of discretion” turns on whether the judge had tenable grounds or reasons to exclude the evidence. Braut v. Tarabochia, 104 Wn. App. 728, 733, 17 P.3d 1248 (2001).

¶7 Here, the trial judge concluded that

[i]n this case, however, I can’t find that the fact that Mr. Lutz was operating without a valid endorsement is really relevant to how he operated the motorcycle.

The real issue in this case is was he . . . was he negligent? Was he speeding? Was he not keeping a proper lookout? Did he lose control of the motorcycle because of his negligence? Did that cause the injury? . . . Mr. Lutz could have been fully qualified as a motorcycle operator and still be negligent. The fact that he wasn’t fully qualified under state law as a motorcycle operator doesn’t mean that he was or wasn’t negligent.

Report of Proceedings (RP) (Motions) at 15.

¶8 We conclude those are tenable grounds for this trial judge to exclude the evidence that Mr. Lutz was not properly licensed. Indeed, for us the decision—again, a discretionary decision—was easily supported by compelling case law. Holz v. Burlington N. R.R., 58 Wn. App. 704, 711-13, 794 P.2d 1304 (1990). In Holz, the trial court refused to admit evidence that the plaintiff was not properly licensed when he drove his motorcycle into the side of a railroad car. Id. at 705. The Court of Appeals affirmed, noting that the crucial question was:

Would a person with a motorcycle endorsement, enabling that person to ride unsupervised and at night, have been any better off, i.e., any less likely to have suffered the same fate? Riding a motorcycle without supervision at night is not illegal; the Legislature has declared only that doing so without a motorcycle endorsement is.

Id. at 707. The court in Holz went on to hold that even if it was relevant, it was inadmissible under ER 403 because it had the danger of unfair prejudice. Id. at 708.

¶9 The trial judge here applied the same reasoning— would the accident have been less likely if Mr. Lutz had the piece of paper (his motorcycle endorsement) in his back pocket? Ultimately the question is whether the accident would have happened if Mr. Lutz had a proper license, not proper training, experience, or good judgment, but whether he had the piece of paper. The statutory violation here was speeding and reckless driving: statutory violations Ms. Kappelman showed.

¶10 Mr. Lutz told the police that he accelerated out of Husum, Washington, at approximately 65 m.p.h. He told the investigative officer that he may have been going 60 m.p.h. when he hit and killed the deer. An accident reconstruction consultant, Robert Stearns, testified that the motorcycle was going in excess of the posted speed limit, 55 m.p.h., before any braking occurred to avoid the deer. He estimated that the motorcycle was going 70 to 77 m.p.h. prior to braking. He stated that was a conservative estimate and “eighty miles an hour would not be unreasonable.” RP (Trial) at 246.

¶11 Ms. Kappelman testified that during the ride Mr. Lutz kept accelerating to the point where she became “nervous.” RP (Trial) at 72. She felt as if she was “being sucked off” due to the speed. Id. Ms. Kappelman saw a deer in the left lane, going slowly to the right. At roughly 50 feet from the deer, Mr. Lutz stood on the brakes hard. The motorcycle skidded.

¶12 Mr. Stearns testified that the speed at the time of impact depended upon several factors: “[W]ith the vehicle traveling approximately seventy miles an hour prior to the onset of the emergency braking, the impact speed would be approximately sixty-three miles an hour.” RP (Trial) at 247.

¶13 Ms. Kappelman saw the deer after Mr. Lutz. She estimated this to be 250 to 300 feet away. Mr. Stearns testified, that if Mr. Lutz was going 55 m.p.h. and he saw the deer at least 300 feet away, he could have stopped safely. Mr. Stearns also explained that Mr. Lutz could have stopped at 60 miles an hour had he seen the deer at least 300 feet away and taken his hand off the accelerator.

¶14 Mr. Steams told the jury that £<[i]f you encounter something unexpected, and you haven’t trained properly for it, the chance of having a tragedy is increased.” RP (Trial) at 271.

¶15 Ms. Kappelman testified that within a matter of seconds the bike hit the deer. Ms. Kappelman flew off the motorcycle and slid down the roadway approximately 200 feet. The police testified that the skid marks were 41 feet, 6 inches long. The police also indicated that the bike slid approximately 330 feet without the riders. Both Mr. Lutz and Ms. Kappelman were ejected.

¶16 She then showed that (1) Mr. Lutz was inexperienced, (2) he showed poor judgment in carrying a passenger at night, and (3) he reacted poorly to the hazard posed by the deer. Yet the question here, like the question in Holz, is whether the accident would have been avoided if Mr. Lutz were properly licensed? The trial judge concluded that it would not have been avoided and that is supported by this record.

¶17 At the end of the day, Mr. Lutz is the motorcycle driver he is, with his experience, training, and background. And he reacted the way he did whether or not he was properly licensed. The fact that he was not licensed is not relevant to how and why he drove his motorcycle in the way he did on the evening of this accident; only his driving conduct is relevant.

¶18 This case is not distinguishable from Holz with one exception: the rule we apply here cut against the defendant in Holz. And here it cuts against the plaintiff. That is not a reason to apply the rule differently. In Holz, the court concluded that evidence of the lack of a motorcycle endorsement would carry with it££ £the danger of unfair prejudice, confusion of the issues, or misleading the jury.’ ” Holz, 58 Wn. App. at 708 (quoting ER 403). Evidence of other bad or illegal acts “ ‘tends to distract the trier of fact from the main question of what actually happened on the particular occasion.’ ” Id. (quoting Fed. R. Evid. 404(a) advisory committee note).

¶19 The trial judge is generally in a better position to weigh the probative value and the unfair prejudice in a case. Id. That is why these questions are vested in the discretion of the trial court. Id. This is especially true when the trial court excludes evidence “that a person lacked a proper license at the time of an accident because, absent evidence to the contrary, unlicensed status is irrelevant.” Id.

¶20 The real issue here was whether Mr. Lutz was operating the motorcycle in a negligent manner on the day of the accident. His speed, reaction to the circumstances, and inexperience would not have changed with a motorcycle endorsement. See id. at 707-09. He could have still been negligent even with the endorsement.

¶21 Nor did the trial judge abuse his discretion by refusing to admit evidence that Mr. Lutz was cited. The fact of citation or noncitation is generally inadmissible. Warren v. Hart, 71 Wn.2d 512, 514-16, 429 P.2d 873 (1967).

Emergency Instruction

¶22 Mr. Lutz proposed a jury instruction based upon 6 Washington Practice: Washington Pattern Jury Instructions: Civil 12.02, at 142 (5th ed. 2005) (WPI):

DUTY OF ONE CONFRONTED BY AN EMERGENCY

A person who is suddenly confronted by an emergency through no negligence of his or her own and who is compelled to decide instantly how to avoid injury and who makes such a choice as a reasonably careful person placed in such a position might make, is not negligent even though it is not the wisest choice.

Clerk’s Papers at 181. Ms. Kappelman objected to the instruction. The court, nevertheless, gave the instruction to the jury.

¶23 Ms. Kappelman contends that any emergency here followed Mr. Lutz’s own negligence and he was therefore not entitled to the emergency instruction. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 197, 668 P.2d 571 (1983); Bennett v. McCready, 57 Wn.2d 317, 320, 356 P.2d 712 (1960); Sandberg v. Spoelstra, 46 Wn.2d 776, 782-83, 285 P.2d 564 (1955); Tuttle v. Allstate Ins. Co., 134 Wn. App. 120, 130-31, 138 P.3d 1107 (2006).

¶24 Mr. Lutz responds that he was entitled to the instruction because he was confronted by a sudden emergency placing him in peril, citing Mills v. Park.¹ The emergency required him to make an immediate or instinctive choice between alternative courses of action without time for reflection and he did so, citing Tuttle.² And the emergency was not created wholly or in part by his negligence, citing Haynes v. Moore.³

¶25 First, we consider jury instructions in their entirety. Brown, 100 Wn.2d at 194. “Instructions are sufficient if they (1) permit each party to argue his theory of the case, (2) are not misleading, and (3) when read as a whole, properly inform the trier of fact of the applicable law.” Id. Generally, we review a court’s decision to give an instruction for an abuse of discretion. Tuttle, 134 Wn. App. at 131. But we will review a court’s decision to give an instruction based upon a ruling of law de novo. Id. Whether the emergency doctrine applies to these facts, thus warranting the giving of the instruction, is a question of law. Id.

¶26 WPI 12.02 describes the duty of one confronted by an emergency and is identical to the instruction given by the court here. The essential element invoking the emergency doctrine is confrontation by a sudden peril requiring an instinctive reaction. Seholm v. Hamilton, 69 Wn.2d 604, 609, 419 P.2d 328 (1966). An instruction on this doctrine is appropriate only when there are facts presented from which the trier of fact could conclude that the emergency arose through no fault of the person seeking to have the doctrine invoked. Tuttle, 134 Wn. App. at 131. The instruction is appropriate when the emergency is not brought about, in whole or in part, by the negligence of the party seeking to invoke the doctrine. Sandberg, 46 Wn.2d at 783. The court should give the instruction if the evidence is conflicting. Tuttle, 134 Wn. App. at 131 (citing Bell v. Wheeler, 14 Wn. App. 4, 6, 538 P.2d 857 (1975)).

¶27 Ms. Kappelman claims the instruction was not appropriate here because Mr. Lutz created the emergency by his own negligence. Certainly, there was evidence before the jury that Mr. Lutz created the emergency by his negligence. But Mr. Lutz also showed that the emergency, not negligence, caused the accident. Mr. Lutz showed and argued that the accident was caused when he was unable to avoid hitting the deer either by stopping or moving around it. The situation itself would qualify as a sudden emergency. Mr. Lutz testified he first tried to avoid the deer, but when he determined that was not going to work, he applied his brakes.

¶28 Ms. Kappelman presented evidence that Mr. Lutz had time to react and he did not make an instinctive choice. She also showed that he was speeding and thus not entitled to the instruction. The trial court should give the emergency instruction if the evidence is conflicting. Id.; Bell, 14 Wn. App. at 6. Mr. Lutz presented evidence that he was confronted by a sudden emergency. The instruction was proper. Tuttle, 134 Wn. App. at 130-31; Bell, 14 Wn. App. at 6.

Statement to the Insurance Adjuster

¶29 Ms. Kappelman testified that five weeks after the accident she said that Mr. Lutz could have been going slower, but that she did not blame him for the accident. No one objected. Ms. Kappelman’s counsel then asked if he could ask her the circumstances of the statement. He wanted to show that she was talking to Mr. Lutz’s insurance adjuster. The court refused to allow further inquiry.

¶30 Ms. Kappelman contends that the trial judge abused his discretion. We review a decision to admit or exclude evidence for abuse of discretion. City of Kennewick v. Day, 142 Wn.2d 1, 5, 11 P.3d 304 (2000). Again, a court abuses its discretion when no tenable grounds exist for its decision. Hill v. Cox, 110 Wn. App. 394, 409, 41 P.3d 495 (2002).

¶31 Mr. Lutz’s counsel asked Ms. Kappelman on cross-examination if she had previously indicated that she did not blame Mr. Lutz for the accident. She responded: “Yes. I did. I said he could have been going slower and yet I did not blame him. Again, his girlfriend was my friend.” RP at 125. There was no objection to the question or the answer.

¶32 Ms. Kappelman’s counsel then asked that he be allowed to inquire about the circumstances of this statement. He wanted to show that Ms. Kappelman was speaking to Mr. Lutz’s insurance agent. The court declined, stating the question was proper in cross-examination and went to Ms. Kappelman’s credibility. Ms. Kappelman explained on redirect that she did blame Mr. Lutz and made the apparently exculpatory statement because she did not want him to get into trouble.

¶33 The court permitted testimony of the circumstances of the statement but refused testimony that the stateent was made to an insurance adjuster. Ms. Kappelman was able to testify why she made the statement, just not who she made the statement to. The purpose of the question was to attack her credibility, which is appropriate on cross-examination. See Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 34, 873 P.2d 498 (1994).

¶34 Furthermore, the fact that a defendant in a personal injury case carries liability insurance is not material to the questions of negligence and damages. Todd v. Harr, Inc., 69 Wn.2d 166, 168, 417 P.2d 945 (1966); see also ER 411. And the willful, deliberate, or collusive interjection of such evidence at trial is grounds for a new trial. Todd, 69 Wn.2d at 168-69. We conclude there was no abuse of discretion in prohibiting further inquiry here.

Evidence of the Acceleration Capability of the Motorcycle

¶35 The court permitted evidence of the top speed of Mr. Lutz’s motorcycle but refused to admit evidence of its acceleration capacity. Ms. Kappelman contends the evidence was relevant and the court’s ruling was in error.

¶36 We review a decision to admit or exclude evidence for abuse of discretion. Day, 142 Wn.2d at 5. Ms. Kappelman claims the evidence was relevant to show that Mr. Lutz could have accelerated from 45 m.p.h. to 90 m.p.h. in a short period of time. But there was evidence about how fast Mr. Lutz was traveling. Mr. Lutz testified that at the time he saw the deer he was going more than 55 m.p.h. He testified he told the officer he was going 60 to 65 m.p.h. Ms. Kappelman testified he was going 80 to 90 m.p.h. How fast he was able to accelerate was not the issue; how fast he was going was the issue. The jury heard evidence regarding his speed. The trial judge did not abuse his discretion by excluding evidence of acceleration capacity.

HOLDING

¶37 This case was tried to a jury over the course of three days. The factual question before the jury here was whether Mr. Lutz operated his motorcycle negligently. Whether he was properly licensed is not relevant to that factual question. The jury here concluded that he was not negligent. That was a question for the jury, not us.

¶38 Certainly, the perfect case was not tried here. But the perfect case has not been and never will be tried. The parties here are not entitled to a perfect trial. Freeman v. Intalco Aluminum Corp., 15 Wn. App. 677, 686, 552 P.2d 214 (1976). The integrity of every jury verdict is important, not just those verdicts we approve of.

¶39 We affirm the judgment for the defendant, Mr. Lutz.

Brown, J., concurs.

1 Mills v. Park, 67 Wn.2d 717, 719-20, 409 P.2d 646 (1966).

2 Tuttle, 134 Wn. App. at 130-31.

3 Haynes v. Moore, 14 Wn. App. 668, 669, 545 P.2d 28 (1975).