Opinion
No. 23779-6-III.
May 29, 2007.
Appeal from a judgment of the Superior Court for Yakima County, No. 01-2-02772-6, Robert N. Hackett, Jr., J., entered December 27, 2004.
Juana Chavez was killed while driving her family through Arizona on their way to visit in Texas and Mexico. Her children, by their father as guardian ad litem, brought suit against her estate for negligent infliction of emotional distress. The jury returned a defense verdict. The children moved for new trial. The court entered judgment as a matter of law that Ms. Chavez was negligent and ordered a new trial on damages. We affirm.
In December 1993, the Chavez family was heading from Washington to Texas and Mexico to visit relatives over the holidays. They were traveling in a 1994 Dodge full-size van recently purchased by the family. In the van were Ricardo and Juana Chavez; their four children, Candelaria, Rozana, Ricardo, Jr., and baby Bianca; and a paying passenger, David Espinoza. They spent the night at a rest stop on Interstate 10, somewhere in Arizona.
After spending the night at the rest stop, Ms. Chavez started driving in the early morning of December 8, 1993, while Mr. Chavez slept next to Ricardo, Jr., and Rozana in the back of the van. Ricardo, Jr., was less than six years old and Rozana was about seven. Baby Bianca was on the lap of Candelaria, who was sitting right behind the driver's seat. On the passenger side was Mr. Espinoza. The plan was for Ms. Chavez to drive to a McDonald's restaurant and wake everybody up to eat breakfast.
About one half hour later, the accident occurred. The van had gradually veered off the freeway. Ms. Chavez attempted to correct her steering, but lost control. The van began to swerve back and forth and rolled over. Ms. Chavez was ejected and died at the scene. The children were not allowed to see their mother. Ricardo Chavez, et al. v. Estate of Chavez The Chavez children, through their father as guardian ad litem, brought suit against the estate of their mother for negligent infliction of emotional distress. The estate's motion for summary judgment was denied.
The case went to jury trial in October 2004. The jury returned a defense verdict finding no negligence by Ms. Chavez. The court subsequently granted the children's motion for new trial. It determined Ms. Chavez was negligent as a matter of law and the new trial would be on damages only. This appeal follows.
The estate claims the court erred by applying the doctrine of res ipsa loquitur to grant judgment as a matter of law against the estate on the issue of negligence. It argues the plaintiffs must produce sufficient evidence to show negligence and none could be shown here because no witness could explain what caused the accident.
We need not address the claim that the court erred by denying summary judgment on this basis. The denial of summary judgment based on a dispute of material facts is not appealable after trial. Johnson v. Rothstein, 52 Wn. App. 303, 304, 759 P.2d 471 (1988).
Generally, the plaintiff bears the burden of proof in a tort action. But the doctrine of res ipsa loquitur can spare "the plaintiff the requirement of providing specific acts of negligence in cases where a plaintiff asserts that he or she suffered injury, the cause of which cannot be fully explained, and the injury is of a type that would not ordinarily result if the defendant was not negligent." Pacheco Ricardo Chavez, et al. v. Estate of Chavez v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003). This doctrine permits the inference of negligence based on the principle that sometimes what causes the injury is practically accessible to the defendant but not to the injured victims. Covey v. W. Tank Lines, Inc., 36 Wn.2d 381, 390, 218 P.2d 322 (1950).
Whether the doctrine of res ipsa loquitur is applicable is a question of law and this court shall review it de novo. Zukowsky v. Brown, 79 Wn.2d 586, 592, 488 P.2d 269 (1971); Griffin v. West RS, Inc., 143 Wn.2d 81, 87, 18 P.3d 558 (2001). To infer negligence under the doctrine of res ipsa loquitur, the evidence must show:
"(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone's negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff."
Zukowsky, 79 Wn.2d at 593 (quoting Horner v. N. Pac. Beneficial Ass'n Hosps., Inc., 62 Wn.2d 351, 359, 382 P.2d 518 (1963)).
Here, the last two elements were satisfied. Ms. Chavez was the driver at the time of the accident and had exclusive control over the vehicle. In addition, all the plaintiffs were asleep in the back and could not have contributed to the accident. The issue is whether the first element is met.
That element is satisfied when one of three conditions exist:
"(1) when the act causing the injury is so palpably negligent that it may be inferred as a matter of law, . . . (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries."
Zukowsky, 79 Wn.2d at 595 (quoting Horner, 62 Wn.2d at 360).
In an automobile accident, the mere fact it happened is not in and of itself proof of negligence on the part of the driver. See Dodge v. Stencil, 48 Wn.2d 619, 296 P.2d 312 (1956); Bellantonio v. Warner, 47 Wn.2d 550, 288 P.2d 459 (1955); Kiessling v. Nw. Greyhound Lines, Inc., 38 Wn.2d 289, 229 P.2d 335 (1951).
However, under the doctrine of res ipsa loquitur, when an accident or injury is such as in the ordinary course of events does not happen if the person in charge of the motor vehicle uses proper care, proof of the occurrence of an injury and the circumstances surrounding it may, in the absence of contrary evidence, give rise to an inference of negligence on the part of the driver.
Hardman v. Younkers, 15 Wn.2d 483, 489-90, 131 P.2d 177 (1942). Circumstantial evidence includes traffic, weather, visibility, and street conditions. Id. at 490.
Here, witnesses testified that Ms. Chavez had clear visibility, the road condition was satisfactory, there was no blowout, and the tires were operational even after the accident. The estate offered no contrary evidence. In the ordinary experience of mankind and in the absence of abnormal road or mechanical conditions, a moving vehicle cannot just veer off the road without negligence of the driver. The doctrine of res ipsa loquitur was properly applied in the circumstances here.
The estate contends the children do not have a claim for negligent infliction of emotional distress because, although present at the accident scene, they did not see their mother getting killed or her body.
In Washington, bystander plaintiffs can sue for negligent infliction of emotional distress over severe injury or death of a family member if they were physically present at the scene of the accident. Gain v. Carroll Mill Co., 114 Wn.2d 254, 260, 787 P.2d 553 (1990). That is so because a defendant owes a duty to avoid the negligent infliction of mental distress to people she could foresee would suffer. Id. at 257-59.
The estate argues the children must have actually observed their mother dying or her body to recover, citing Hegel v. McMahon, 136 Wn.2d 122, 960 P.2d 424 (1998). It points to this portion of the opinion:
The critical factors are the circumstances under which the observation is made, and not any rigid adherence to the length of time that has passed since the accident.
We adopt this approach and hold that a family member may recover for emotional distress caused by observing an injured relative at the scene of an accident after its occurrence and before there is substantial change in the relative's condition or location.
Id. at 132.
The passage does not support the estate's position. It only explains the requirement for plaintiffs who were not present at the accident but later arrived at the scene. Hegel does not restrict the scope of Gain. Indeed, it broadens the scope to allow family members who later arrived at the scene to recover for negligent infliction of emotional distress. The requirement of observing the victim applies only to a particular group of plaintiffs not present at the accident but arriving afterward.
The Chavez children were present at the accident. They were in the back of the van when it rolled over. Ms. Chavez had a duty to avoid the negligent infliction of emotional distress. Hunsley v. Giard, 87 Wn.2d 424, 435, 553 P.2d 1096 (1976). The distress suffered by the children was foreseeable. Id. at 436. Requiring the children to actually observe their mother's body in order to make a claim for negligent infliction of emotional distress is not supported by Hegel.
The estate argues the trial court erred by allowing evidence as to medical expenses and from Ricardo Chavez's medical experts. The estate contends that during discovery, it made specific inquiries about expert witnesses who had treated the children for any mental or emotional problems. The children did not provide any information about Dr. Shulamit Glaubach and Kenneth D. Peterson, D.C. These issues relate to damages, the subject of the new trial, and are best resolved by the trial court as they arise. If addressed now, we would merely be making an advisory opinion, which we will not do. Walker v. Munro, 124 Wn.2d 402, 418, 879 P.2d 920 (1994).
The estate also argues the trial court erred by denying its CR 15(b) motion to amend to include a comparative negligence defense under Arizona law. The accident happened in Arizona where failure to wear a seat belt is a comparative negligence defense. The father testified Ricardo, Jr., and Rozana did not have their seat belts on. CR 15(b) permits a party to amend its pleading at any time if issues not raised by the pleadings are tried by express or implied consent of the parties.
A choice of law determination must be made only if there is an actual conflict between the laws and interests of this state and those of another. Rice v. Dow Chem. Co., 124 Wn.2d 205, 210, 875 P.2d 1213 (1994). The law here involves failure to wear a seat belt as a comparative failure defense. Arizona allows it. See Law v. Superior Court, 157 Ariz. 147, 755 P.2d 1135 (1988). Washington does not. RCW 46.61.688(6); Clark v. Payne, 61 Wn. App. 189, 810 P.2d 931, review denied, 117 Wn.2d 1022 (1991). A conflict exists so we must choose the applicable law.
In choice of law cases, Washington applies the "most significant relationship" test in the Restatement (Second) of Conflict of Laws § 145 (1971):
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in [section] 6.
(2) Contacts to be taken into account in applying the principles of [section] 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.
"In personal injury cases, the law of the state where the injury occurred applies unless another state has a greater interest in determination of that particular issue." Martin v. Humbert Constr., Inc., 114 Wn. App. 823, 829, 61 P.3d 1196 (citing Bush v. O'Connor, 58 Wn. App. 138, 143-44, 791 P.2d 915 (1990)), review denied, 149 Wn.2d 1033 (2003). The negligent conduct and injury occurred in Arizona. All parties were residents of Washington, where their relationship was centered. The Arizona contacts alone are not so significant to compel us to use the law of that state. Our inquiry thus focuses on the interests to be served in applying a particular state's law on the seat belt issue.
The Arizona court decided the seat belt defense was a matter the jury could consider in apportioning damages due to the fault of the plaintiffs: "At least under the comparative fault statute, each person is under an obligation to act reasonably to minimize foreseeable injuries and damages. Thus, if a person chooses not to use an available, simple safety device, that person may be at `fault.'" Law, 755 P.2d at 1143. The Washington court held that under RCW 46.61.688(6), providing failure to wear a seat belt is not evidence of negligence, the failure of a person riding in a vehicle to wear a seat belt could not be raised as an affirmative defense of contributory fault. Clark, 61 Wn. App. at 192-94. It observed the legislature chose to so limit the consequences of failure to comply and noted prior Washington cases had rejected the seat belt defense on the further ground of the unfairness of reducing the damages of plaintiffs who are injured in an accident for which they were in no way responsible. Id. at 194.
The law of Washington provides greater protection and concern for the injured than that of Arizona. In the circumstances here, Washington's interest in protecting its citizens outweighs Arizona's interest in apportioning fault in an accident where the only contact with that state is it happened to occur there. The trial court did not err by denying the estate's motion to amend to include the seat belt defense.
The estate further contends jury instructions 9, 12, 13, 15 and 16 were improper. Instruction 9 dealt with res ipsa loquitur; instruction 13 concerned the tort of negligent infliction of emotional distress. We have already determined the trial court correctly addressed those issues.
Instructions 12 and 15 relate to damages and are properly addressed by the court in the new trial. Instruction 16 deals with insurance. Except for mere argument, the estate has failed to show the court erred by giving that instruction.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: Sweeney, C.J. Kulik, J.