Opinion
No. 35412-8-II.
February 20, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 04-2-02776-8, Diane M. Woolard, J., entered August 30, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Golden Eagle Express, Inc. appeals a jury's verdict in favor of Glenn and Dollie Johnson against Golden Eagle for negligence and loss of consortium damages. The main issue on appeal is whether Golden Eagle had a legal duty under the voluntary rescue doctrine to help Glenn Johnson, a 71-year-old independent trucker who experienced health problems while on a Golden Eagle driving assignment. Golden Eagle also argues that, if it had this legal duty, the jury erred in determining that (1) the Johnsons and another Golden Eagle trucker were not contributorily negligent and (2) the negligent ambulance company was not a proximate cause of Johnson's injuries. Because the evidence supports the jury's verdict, we affirm.
FACTS
I. Factual Overview
A. October 30, 2002
On Wednesday, October 30, 2002, Glenn Johnson, who lived in Portland, Oregon, was driving his truck for Golden Eagle Express, Inc. He was unable to continue driving when a callous on the bottom of his foot became sore.
Before October 30, Johnson had been aware of the callous and had previously sought medical attention for it, but, although it had caused some pain, it had not previously interfered with his ability to drive his truck and load. Johnson also suffered from a variety of medical conditions and was taking medication that could potentially increase his risk of infection. Golden Eagle was apparently unaware of these conditions.
Johnson suffered from rheumatoid arthritis, past congestive heart failure, and peripheral vascular disease (PVD). PVD restricts blood flow to a person's extremities and may cause delayed healing and increased risk of infection. Johnson took Prednisone to treat his arthritis; Prednisone may increase the risk of infection.
At about 6:00 pm, Johnson pulled over at a rest stop near Richfield, California, about two hours north of Sacramento, California. At some point, as he was preparing to rest, Johnson fell and hit his head. He woke up on the floor of his truck, unsure as to whether it was still October 30 or the morning of October 31.
B. October 31, 2002
1. Johnson's Contact with Golden Eagle
Johnson testified that after he woke up on the floor of his truck, he pulled himself up, got back into the truck's sleeping compartment, and called Golden Eagle. The exact details of what type of assistance Johnson asked for and what information he gave Golden Eagle personnel at that time were disputed at trial, but the record shows that on Thursday, October 31, Johnson informed Golden Eagle's terminal manager, Vance Crofoot, or dispatcher, Christopher Clohessy, that he was not feeling well and that he would not be able to continue with the load.
Johnson testified that he told Crofoot that he hit his head and "could not make the load because there was something wrong, [he] couldn't walk, [he] fall (sic) down, and [Crofoot] said that he would send somebody to pick up the load and he would send help down to get me back." Report of Proceedings (RP) (Aug. 9, 2006) at 533. Johnson asserted that he did not ask Crofoot to send anyone to help him return to Portland, but that Crofoot offered to arrange to get him home. Johnson also testified that Crofoot repeatedly assured him that he was sending help and that "Frankie would bring [him] and the truck back to Portland." RP (Aug. 9, 2006) at 566.
Johnson later contradicted this testimony to some extent, asserting that he did not call Golden Eagle to get someone to take his load but only for "help to get to Portland," and that Crofoot was the one who told him that someone else would take the load. RP(8/9/2006) at 546.
The record does not reveal who "Frankie" is. RP (Aug. 9, 2006) at 566.
Johnson acknowledged that during this conversation, Crofoot also suggested that he, Johnson, call an ambulance, but that he told Crofoot he did not want an ambulance and just wanted to get home. At trial, Johnson stated that he did not want to go to the doctor at that time because Crofoot assured him that "he was taking care of it and he had help coming." RP (August 9, 2006) at 547. Johnson freely admitted, however, that nothing prevented him from calling an ambulance at that time had he chosen to do so.
At trial, Clohessy confirmed that Johnson called Golden Eagle and told him that he was not feeling well and did not think he could continue on with his load. Clohessy testified, however, that Johnson was the one who asked whether Golden Eagle could find another driver to take his load and that Johnson did not provide any detail about why he was not feeling well or request medical assistance, but merely said he needed to rest. He testified that, although Johnson sounded a "little bit more subdued," this did not seem unusual because Johnson said that he was not feeling well. RP (Aug. 10, 2006) at 693.
Crofoot also confirmed that he talked to Johnson. He testified that after talking to Johnson, he was concerned about Johnson and asked him several times if he needed help or an ambulance, but that Johnson said he did not need any medical attention and just needed to rest. Crofoot asserted that "after a few calls," Johnson asked that they have someone take his load and he sent another contract driver, Gabriel Sanchez, to pick up Johnson's load. RP (Aug. 10, 2006) at 705. Nothing in the record suggests that Crofoot or Clohessy ever attempted to get Johnson back to Portland.
At one point during his testimony, however, Johnson contradicted this statement, asserting that at some point his cellular phone was not working.
2. Gabriel Sanchez
Gabriel Sanchez testified that Crofoot contacted him about picking up Johnson's load on October 31 and told him that he would "have to do everything by [himself], unhook [Johnson's] truck and hook it up to [his] truck because [Johnson] can't even stand up from the bed"; that Johnson "was real sick and that's why he can't move anymore from the rest area"; and that Johnson could not drive. RP (Aug. 7, 2006) at 69-70.
Sanchez's testimony was presented by videotape.
At the rest stop, when Sanchez knocked on Johnson's truck, it took Johnson some time to get from the sleeper to the truck door. In a short conversation, Sanchez told Johnson that he was going to deliver his load for him. During this conversation, Sanchez noticed that Johnson was not speaking very clearly, that he was hard to understand, and that "[h]e was out of it." RP (Aug. 7, 2006) at 82. Although Johnson told Sanchez he did not feel good and Sanchez thought Johnson looked like he needed medical attention, Johnson did not tell Sanchez exactly what was wrong.
Sanchez left Johnson behind, but he was concerned about Johnson's condition, so he called Crofoot, told him that he was taking Johnson's load, and suggested Crofoot might want to send someone out to help Johnson. Sanchez testified that Crofoot told him that Johnson did not want an ambulance and that he (Sanchez) should not worry about Johnson because Golden Eagle was taking care of things.
Clohessy verified that Sanchez spoke to Crofoot and stated that Sanchez "suggested that [Crofoot] go ahead and contact Mr. Johnson because he didn't think he looked good, thought he needed some help." Clohessy further testified that Crofoot then contacted Johnson and "asked him specifically, you know, how are you doing, do you need any help, do you need — you know, do you need — specifically, I actually heard [Crofoot] ask [Johnson]: Do you need an ambulance or anything like that? And, you know, from the point of the conversation, it was Mr. Johnson had turned down" the opportunity to request medical help. RP (Aug. 10, 2006) at 695. Crofoot also verified that Sanchez reported that he had checked on Johnson. Crofoot asserted, however, that Sanchez said Johnson "looked like he needed to rest, needed some water, needed some food, but other than that, you know, said he was fine" and did not need help. RP (Aug. 10, 2006) at 706. Crofoot also testified that he talked to Johnson three or four times while Johnson was at the rest stop because he was "concerned about him," and he "wanted to make sure that he was okay." He stated that he asked Johnson several times if he needed help, whether they could get him an ambulance, and whether they needed to "get [him] out of there," but Johnson responded that he would be fine and acted as if this had happened before and all he needed was to "relax for a little while," so they did not send additional assistance. RP (Aug. 10, 2007) at 707. Crofoot also stated that he believed that Johnson wanted to stay with his truck and that Johnson would be able to take himself home if he did not have to drive with the load.
Relying on Crofoot's statements, Sanchez did not call an ambulance or attempt to contact Johnson's wife. Sanchez testified that he felt Crofoot, his "boss," was the one who should decide whether to call an ambulance, and that he did not attempt to contact Johnson's wife because he felt "comfortable with the situation when [Crofoot] told [him] not to worry, we're going to take care of it." RP(8/7/2006) at 85, 92. Sanchez also testified that he would have tried to take Johnson back to Portland if Crofoot or Johnson had asked him to, but he did not offer to take Johnson back to Portland because he was only there for the load and it would have been difficult to take Johnson because he was in such bad condition.
Sanchez arranged, however, for his brother-in-law, Jesus Mendez, another Golden Eagle contract driver, to take Johnson food and water when he passed the rest stop because there were no food services there. He did not ask Mendez to provide medical assistance because Crofoot told him that Johnson did not want medical help. Sanchez then drove Johnson's load north, delivered the load, picked up another trailer, and headed south on Saturday, November 2. He had to drive the next load to Sacramento and did not stop and check on Johnson on the return trip because the rest stop was on the other side of the freeway.
Johnson testified that he did not ask Sanchez for a ride back to Portland because, if he rode with Sanchez, he would have to leave his truck, something he did not want to do because he believed it was illegal to leave the truck at the rest stop. But Johnson also testified that he remembered little about his contact with Sanchez, other than Sanchez taking the trailer and giving him some water and food. Johnson recalled even less about the events that followed. He did, however, believe that he talked to Crofoot after Sanchez left on October 31, and that Crofoot kept assuring him that "help [was] on the way." RP (Aug. 9, 2006) at 548. Johnson agreed, however, that he never specifically asked Crofoot to get him any medical assistance.
3. Dollie Johnson
Dollie Johnson testified that Johnson called her, apparently on October 31, and told her that "he had fell and split his head and he was having trouble with his foot." She noted "when he talked to [her], it wasn't that clear, it was kind of mushy." She stated that Johnson told her Crofoot was "sending somebody to pick him and the truck up," and, based on this conversation, she expected him home in the next couple of days. RP (Aug. 9, 2006) at 575-76. She also testified that she did not attempt to get any help for him because he told her Crofoot was already arranging to get him home. At trial, Johnson did not recall this conversation.
C. November 1, 2002
On Friday, November 1, 2002, Mendez stopped at the rest stop with food and water for Johnson. Mendez testified that, when Sanchez contacted him the day before, he said Johnson was sick but did not provide any details. Johnson did not recall Mendez checking on him that Friday. According to Mendez, it took Johnson about five minutes to open the truck door when he arrived. Mendez observed that Johnson was in his tee shirt and underwear; that "[h]e had two glasses full of urine" in his truck; and that "[h]is underwear was, like, wet, urinated on." RP (Aug. 7, 2006) at 119.
Mendez's testimony was also presented by videotape. Mendez testified through an interpreter.
Mendez noted that it was not unusual for drivers to have glasses of urine in their trucks.
Mendez had a short conversation with Johnson and he noted that Johnson looked sick and was shaking, that he had a bloody wound on the side of his head, and that he had a sore on the bottom of his foot that was not an open cut but rather "a circle, red in color." RP (Aug. 8, 2006) at 171. Although Mendez could understand Johnson, Johnson's speech seemed abnormal. Mendez characterized Johnson's condition as bad, but "not serious as far as a life-and-death situation." RP (Aug. 7, 2006) at 126.
Despite his concern about Johnson's condition, Mendez stated that he did not offer Johnson any additional assistance because Johnson told him "he already talked to [Crofoot] and they — they had already arranged something," or "worked things out." RP (Aug. 7, 2006) at 120-21. Johnson did not ask Mendez to contact anyone, did not ask for medical attention or an ambulance, and did not ask for a ride home.
Mendez left the rest stop without Johnson around noon, but he did not feel comfortable leaving Johnson behind due to his condition, so he called Crofoot and "told him that Mr. Johnson looked sick and if he wanted — wanted us to, we could arrange something so we can take Mr. Johnson back to Portland." RP (Aug. 7, 2006) at 127. Mendez stated that Crofoot told him, "`Don't worry about it. It's not your problem. I already took care of it.'" RP (Aug. 8, 2006) at 172. Mendez also stated that one reason he contacted Crofoot was that Crofoot was "the boss" and he did not think he could do anything to help Johnson without speaking to Crofoot first. RP (Aug. 7, 2006) at 127. Mendez also called Sanchez and told him that he had checked on Johnson; that Johnson did not look good; and that when he called Crofoot, Crofoot told him not to worry about Johnson because Golden Eagle was taking care of things.
Mendez characterized Crofoot as "strict" about drivers making their deliveries on time and drivers were punished if they failed to do so. RP (Aug. 8, 2006) at 173.
While driving south with another load later that day, Sanchez noticed Johnson's truck was still at the rest stop. Because the rest stop was on the other side of the highway, he could not stop to check on him, so he called Jose Gomez and asked him if he could find another driver and stop and check on Johnson to see if he was okay. Gomez told Sanchez that he was going to try to find another driver to take Johnson and his truck home.
In the record, Gomez identified himself as Jose Gomez Santiago, but he is referred to as Jose Gomez throughout the record. Gomez also did not testify live. Instead, his deposition was read to the jury.
Gomez then contacted Johnson at the rest stop and attempted to get his family's phone number, but Johnson "barely talked." Gomez testified that the conditions inside Johnson's truck were "horrible"; that Johnson had been in the truck "for a couple days"; that there was "pee all over the truck"; and that Johnson had not been able to get out of the truck to use the restroom. RP (Aug. 8, 2006) at 192.
Based on what he saw, Gomez believed Johnson needed help, but instead of calling an ambulance, he called Crofoot. Gomez testified that Crofoot told him "that he was going to take care about [sic] this guy." RP (Aug. 8, 2006) at 203. Relying on Crofoot's assurances, Gomez did not call the police or an ambulance and left to deliver his load to Portland.
D. November 2, 2002
On Saturday, November 2, while returning to Sacramento from Portland, Gomez noticed that Johnson's truck was still at the rest stop, and he stopped to check on him again. This time, Johnson's condition was "[n]ot good at all." RP (Aug. 8, 2006) at 194. Johnson was not able to carry on a conversation and was barely understandable. The cab of the truck was also worse than before; Gomez stated that this time it was covered in urine and "poo" and that it smelled "really bad." RP (Aug. 8, 2006) at 194.
Gomez testified that at this point he was "upset" because he believed Golden Eagle was only worried about delivering Johnson's load, not about Johnson. RP (Aug. 8, 2006) at 195. Without contacting Crofoot, he located an unnamed driver and enlisted his help to drive Johnson's truck and Johnson back to Portland, while Gomez drove his own truck and load. Johnson testified at trial, and in a deposition that was read to the jury, that he only vaguely recalled his contact with Gomez and the unnamed driver on Saturday, but that he did recall one of the men who helped him could not speak any English, that he (Johnson) was in the bunk during the drive, that they drove for about 10 hours, and that his foot hurt.
In his testimony, Crofoot acknowledged that he received information about Johnson's condition from other drivers over time. He also testified that, at one point, apparently while Gomez and the unnamed driver were in the process of driving toward Woodburn, he talked to Johnson and could hear that he was in a moving vehicle. Crofoot stated that Johnson "basically" told him that he was "doing great" and "feeling good," that he had called his wife, and that he was on his way back to Portland and would contact him when he was ready to work again. RP (Aug. 10, 2006) at 709. Crofoot also stated that after this conversation, he did not expect to hear from Johnson again for a few days.
E. November 3, 2002
In the early morning hours of Sunday, November 3, Gomez and the unnamed driver stopped at a truck lot in Woodburn, California, and Gomez called an ambulance. The Woodburn ambulance responded, but it inexplicably left without Johnson, approximately 11 minutes later. Despite this, Gomez left Johnson alone in his truck and continued with his own delivery.
Sanchez was aware that Gomez had found someone to drive Johnson's truck and, until he arrived at the Woodburn lot on Sunday and noticed Johnson's truck, he assumed the other drivers were taking Johnson back to Portland. When he saw the truck, Sanchez called Gomez, and Gomez told him that he had left Johnson there after he had called an ambulance and that the ambulance personnel did not help Johnson. Sanchez believed that Gomez left Johnson there so he could deliver the load he was driving.
Sanchez checked on Johnson's truck and found Johnson still inside it. At that point, Johnson was bleeding and in bad condition and the inside of the truck and Johnson were covered in human waste. Johnson was also unable to carry on a conversation. Sanchez's wife arrived to pick him up and she "broke into tears" when she saw Johnson because he was in such bad condition. RP (Aug. 7, 2006) at 76.
After initially trying to get Johnson something to eat, Sanchez and his wife decided to take him to a hospital. On the way, Sanchez called Crofoot and tried to get Johnson's wife's telephone number;
In contrast, Crofoot testified that after he talked to Johnson and believed he was being driven home, he did not expect to hear from Johnson until he was ready to work again after a few days. The next time he heard from Johnson was a day or two later in the evening when Johnson called him at home on his cellular telephone and Johnson appeared to be alone and "didn't sound good at all." He stated that Johnson told him that he was "really weak" and did not feel good "at all." From what he heard, Crofoot could tell that Johnson was in bad shape and he told Johnson that they were "going to get him some help" and tried to "find out where he was." RP (Aug. 10) at 711.
Crofoot also asserted that, although Johnson did not give him a good idea of where he was, he was apparently "in Woodburn near some kind of a medical facility." RP (Aug. 10, 2006) at 711. Crofoot stated that he could tell that Johnson needed help, but he asserted that Johnson was still able to communicate and respond appropriately. Crofoot was surprised to hear that Johnson was sick because the last conversation was that he was fine and on his way home. He had no idea how Johnson got to Woodburn.
Crofoot further testified that after Johnson contacted him, he "ended up talking to" Sanchez, who lived in the Woodburn area, and Sanchez told him he would check on Johnson. After he spoke to Sanchez, he was "not sure exactly what happened," but he believed Sanchez drove Johnson's truck to a hospital. RP (Aug. 10, 2006) at 712. But Crofoot later testified that he did not recall whether he called Sanchez and asked him to check on Johnson or whether Sanchez called him.
Crofoot apparently refused to give it to him. When they got to the hospital, which was apparently just a small clinic, they could not get Johnson out of the truck and the clinic staff refused to come outside to help him. Sanchez called Crofoot and again asked for Johnson's wife's telephone number. This time, Crofoot thanked Sanchez for helping Johnson and gave him the number.
Crofoot also testified that when he finished talking to Johnson, he called Dollie Johnson. He testified that Dollie Johnson "kind of sounded surprised," but she seemed to "kind of" know that Johnson seemed seriously ill and needed assistance. RP (Aug. 10, 2006) at 711. Crofoot stated that he suggested they call an ambulance and that he was "appalled" when Dollie Johnson "flat refused" to call an ambulance because it was "too expensive." RP (Aug. 10, 2006) at 712, 711.
Dollie Johnson testified that Sanchez's call was the first call she had received about Johnson's condition; that she had tried to call Johnson a couple of times prior to Sanchez's call but could not get through; and that if Crofoot called her about Johnson's condition, she did not remember that call.
Sanchez called Dollie Johnson and told her that he was with Johnson, that Johnson was in serious condition, and that he needed directions so he could bring Johnson home. According to Sanchez, Dollie Johnson told him that the last time she talked to Johnson, he told her that everything was okay and that he was on his way home; she did not say anything suggesting that she knew Johnson was sick or where he was. RP(8/7/2006) at 80. In a pretrial deposition read to the jury at trial, Johnson stated that he had little memory of what happened after Gomez left him in Woodburn, but he recalled Sanchez arriving and saying he was going to take him to the doctor and then take him home. He recalled saying that he did not think his insurance would cover a hospital visit.
Sanchez drove Johnson's truck back to Portland and his wife followed him in their car. When Sanchez arrived at the Johnsons' house at approximately 10:50 pm; Sanchez, his wife, and Dollie Johnson were unable to get Johnson out of his truck, so they called 911. Emergency medical technicians for Multnomah County responded within a matter of minutes.
Tina Beeler, the lead paramedic, testified that Johnson was in "an altered mental state" and covered in feces and urine. RP (Aug. 8, 2006) at 315. Dollie Johnson testified that the inside of the truck "looked just like a slaughterhouse." RP at (Aug. 9, 2006) at 578. Johnson's condition was so bad that Beeler believed that this was an elder abuse or neglect situation involving Sanchez, until Dollie Johnson explained to her that Sanchez was the one who had rescued Johnson and brought him home. At that point, Johnson was dehydrated, suffering from renal failure, and his foot and leg were obviously infected. The hospital stabilized Johnson, but doctors eventually had to amputate Johnson's left leg above the knee.
II. Procedural Background
The Johnsons sued Golden Eagle, alleging, inter alia, that Golden Eagle violated its duty to him under the voluntary rescue doctrine. Dollie Johnson also asserted a loss of consortium claim based on Johnson's injuries. Golden Eagle denied that it had a duty to rescue Johnson and asserted that, even if it did, the various drivers who had had contact with Johnson and attempted to help him, the Woodburn ambulance, the clinic, Dollie Johnson, and "unknown others," were contributorily negligent. Clerk's Papers (CP) at 450. It also asserted that Johnson could not establish proximate cause.
At trial, the Johnsons presented testimony about the circumstances that led to the amputation as described above and additional testimony about Johnson's medical history; the nature of his injuries; the medical, physical, and emotional impact of Johnson's injuries; the impact of Johnson's injuries on his and Dollie Johnsons' lives; and various trucking industry standards. At the close of the Johnsons' case, Golden Eagle moved for judgment as a matter of law on all claims, arguing that the Johnsons failed to present evidence sufficient to support their claims. The trial court denied the motion on the negligence and loss of consortium claims, and Golden Eagle proceeded with its defense. At the close of the evidence, Golden Eagle unsuccessfully moved for judgment as a matter of law.
CR 50(a) provides:
Judgment as a Matter of Law.
(1) Nature and Effect of Motion. If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against the party on any claim, counterclaim, cross claim, or third party claim that cannot under the controlling law be maintained without a favorable finding on that issue. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment. A motion for judgment as a matter of law which is not granted is not a waiver of trial by jury even though all parties to the action have moved for judgment as a matter of law.
(2) When Made. A motion for judgment as a matter of law may be made at any time before submission of the case to the jury.
See footnote 15.
The jury found that Golden Eagle and the Woodburn ambulance were negligent, but that Golden Eagle's negligence was 100 percent of the cause of Johnson's injuries. The jury also found for Dollie Johnson on her loss of consortium claim. It awarded the Johnsons $2.4 million. Golden Eagle then moved for judgment as a matter of law and/or a new trial or amendment of the judgment, asserting that the evidence did not support the jury's findings or the verdict. The trial court denied this motion.
CR 50(b) provides in part:
Renewing Motion for Judgment after Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under rule 59. In ruling on a renewed motion, the court may:
(1) if a verdict was returned:
(A) allow the judgment to stand.
(B) order a new trial, or
(C) direct entry of judgment as a matter of law.
Golden Eagle appeals the trial court's denial of its motions for judgment as a matter of law.
In the last paragraph of its opening brief, Golden Eagle asserts that "[g]iven the size of the verdict, it is apparent that the jury was inflamed by passion or prejudice toward Golden Eagle." Br. of Appellant at 49. To the extent this could be construed as an assertion that the jury's $2.4 million verdict is excessive and not supported by the evidence, we do not reach this issue because Golden Eagle did not address the size of the verdict or the evidence related to the damages in its assignments of error, issue statements, factual statement, or argument.
In addition, the Johnsons move to strike Golden Eagle's opening brief and for sanctions, asserting that it includes argument in the facts section in violation of RAP 10.3(a)(5). Golden Eagle's statement of the case includes statements that could be construed as argument and this is clearly prohibited under RAP 10.3(a)(5). But the imbedded arguments are clearly recognizable and we do not address any argument raised solely in the statement of the case rather than in the argument section. Accordingly, we deny the Johnsons' motion to strike and for sanctions.
ANALYSIS
I. Duty
Golden Eagle first contends that the trial court erred when it denied Golden Eagle's motions for judgment as a matter of law because the evidence failed to establish that Golden Eagle had a duty to Johnson under the voluntary rescue doctrine. Specifically, Golden Eagle argues that the evidence did not establish that (1) Golden Eagle knew that Johnson was in imminent peril or danger or (2) Johnson's reasonable reliance on Golden Eagle for help.
Although it appears to be undisputed that Johnson and the other drivers were designated as independent contractors with Golden Eagle, we note that neither party asked the jury to determine if Golden Eagle was liable to Johnson as his employer; thus, we do not address Golden Eagle's assertion at oral argument that it had no control over Johnson's well-being or rescue by other drivers due to its lack of control over them.
Because these are the only two elements of the voluntary rescue doctrine Golden Eagle argues, we do not address any of the other elements.
A. Standard of Review
As a preliminary matter, Golden Eagle argues that the existence of a duty is a question of law that does not involve a review of the jury's factual determinations. We agree that whether a duty exists is a question of law. Webstad v. Stortini, 83 Wn. App. 857, 865, 924 P.2d 940 (1996). But here, the parties submitted the question of whether Golden Eagle had a duty to Johnson under the voluntary rescue doctrine to the jury. Golden Eagle did not object to these instructions at trial and raises no objection to them on appeal; they are, therefore, the law of the case and we review this issue as if it were a factual question for the jury. Traverso v. Pupo, 51 Wn.2d 149, 153, 316 P.2d 462 (1957) (citing Cline v. Dep't of Labor Indust., 50 Wn.2d 614, 616, 313 P.2d 687 (1957); Becker v. Tacoma Transit Co., 50 Wn.2d 688, 694, 314 P.2d 638 (1957)).
Jury instructions 19 through 21 demonstrate that the parties asked the jury to determine whether Golden Eagle had a duty to Johnson.
Jury instruction 19 provided: "There is no general duty to come to aid of others." CP at 1012.
Jury instruction 20 provided:
To recover in this case, plaintiffs must prove:
1. That defendant knew or should have known that plaintiff Glenn Johnson was in imminent peril or danger;
2. That defendant promised to provide assistance to plaintiff to avoid peril or danger;
3. That plaintiffs or others relied upon defendant's promise by failing to seek assistance elsewhere;
4. That plaintiffs' or others reliance was reasonable;
5. That defendant failed to exercise reasonable care to perform its promise;
6. That plaintiff suffered damages as a result. CP at 1013.
And jury instruction 21 provided:
Where a person knows, or reasonably should know, that an individual is injured and takes steps to aid that individual, the person making an effort to provide aid is required to use reasonable care in his or her efforts. If the rescuer fails to use reasonable care in his or her efforts, then the rescuer is liable to the injured individual for his worsened condition proximately caused by the rescuer's failure.
Where a person's promise to render aid leads an injured individual not to seek aid elsewhere and the promise results in the injured individual not obtaining aid that would otherwise have been available, thereby worsening the injured individual's condition, the person who promised aid is liable to the injured individual for his worsened condition proximately caused by the rescuer's failure.
Where a person's promise to another person in a position to provide aid to an injured individual leads that other potential rescuer not to provide aid and the injured individual's condition is thereby worsened, the person who made the promise is liable to the injured individual for his worsened condition proximately caused by the rescuer's failure.
However, a rescuer or promissory is only liable under the above circumstances when others have reasonably relied on the promise or efforts.
CP at 1014.
We review a trial court's denial of a motion for judgment as a matter of law de novo. Davis v. Microsoft Corp., 149 Wn.2d 521, 530-31, 70 P.3d 126 (2003). "A motion for judgment as a matter of law must be granted `when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.'" Davis, 149 Wn.2d at 531 (quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997)). Substantial evidence is evidence that is sufficient "`to persuade a fair-minded, rational person of the truth of a declared premise.'" Davis, 149 Wn.2d at 531 (quoting Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 147, 381 P.2d 605 (1963)).
In its reply, Golden Eagle emphasizes that the jury heard considerable contradictory evidence, some of which we have described in previous footnotes. But given that this standard of review requires us to take the evidence in the light most favorable to Johnson, the fact there was contradictory evidence is irrelevant.
B. Voluntary Rescue Doctrine
"Under traditional tort law, absent affirmative conduct or a special relationship, no legal duty to come to the aid of a stranger exists." Folsom v. Burger King, 135 Wn.2d 658, 674, 958 P.2d 301 (1998) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56 (5th ed. 1984)). An exception to this general rule is the voluntary rescue doctrine, which "may arise if a defendant takes steps to assist a person in need and acts negligently in rendering that assistance." A duty arising under the voluntary rescue doctrine "is not based on a previously established relationship . . .; rather, the duty arises when one party voluntarily begins to assist an individual needing help." Folsom, 135 Wn.2d at 675.
As the Washington State Supreme Court stated in Folsom:
[W]e recognize that liability can arise from the negligent performance of a voluntarily undertaken duty. A person who undertakes, albeit gratuitously, to render aid to or warn a person in danger is required by Washington law to exercise reasonable care in his or her efforts. Brown v. MacPherson's, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975). If a rescuer fails to exercise such care and consequently increases the risk of harm to those he or she is trying to assist, the rescuer may be liable for physical damage caused. Brown, 86 Wn.2d at 299. A person who voluntarily promises to perform a service for another in need has a duty to exercise reasonable care when the promise induces reliance and causes the promisee to refrain from seeking help elsewhere. Brown, 86 Wn.2d at 300; see Chambers-Castanes v. King County, 100 Wn.2d 275, 287, 669 P.2d 451, 39 A.L.R.4th 671 (1983) (911 operator's statement that police were on the way to the scene induced reliance). When a defendant undertakes a rescue, a special relationship develops, giving rise to actionable negligence if a defendant breaches the duty of care by failing to act reasonably.
135 Wn.2d at 676 (emphasis added).
But the voluntary rescue doctrine applies only if the rescuer attempts to aid an individual in need knowing that a danger is present. Folsom, 135 Wn.2d at 677; see also, Ganno v. Lanoga Corp., 119 Wn. App. 310, 316, 80 P.3d 180 (2003) (citing Restatement (Second) of Torts §§ 323, 324A (1965); French v. Chase, 48 Wn.2d 825, 829-30, 297 P.2d 235 (1956)). If the rescuer is aware of a potential danger and acts to aid the endangered individual, then the rescuer, "may be liable for attempting a voluntary rescue and making the plaintiff's situation worse if that person (1) increases the danger, (2) misleads the plaintiff into believing the danger has been removed, or (3) deprives the plaintiff of possible help from others." Ganno, 119 Wn. App. at 316 (citing Folsom, 135 Wn.2d at 676).
C. Knowledge of Imminent Peril or Danger
Jury instruction 20 reflected the knowledge element described above, requiring the jury to find that Golden Eagle "knew or should have known that plaintiff Glenn Johnson was in imminent peril or danger." CP at 1013. Relying on Folsom and Webstad, Golden Eagle contends that the evidence failed to establish that it had a duty under the rescue doctrine because its alleged assurances were given on Thursday, October 31, 2002, when it had no knowledge or reason to believe that Johnson was in any danger or imminent peril. We disagree.
First, Sanchez's testimony was sufficient to allow a reasonable jury to conclude that Golden Eagle already had information that would cause a reasonable person to believe that either failing to return Johnson to Portland or assuring others that they need not render aid to Johnson would increase his risk of harm when it sent Sanchez to retrieve Johnson's load. Sanchez testified that when Crofoot contacted him about picking up Johnson's load, Crofoot told him that he would "have to do everything by [himself], unhook Glenn's truck and hook it up to [his] truck because [Johnson couldn't] even stand up from the bed," and that Johnson "was real sick and that's why he can't move anymore from the rest area." A reasonable person could easily conclude that a 71-year-old man who was too ill to drive or "even stand up from the bed," would be placed in imminent peril or danger if left unattended, isolated, and alone for an extended period of time. RP (Aug. 7, 2006) at 69-70.
Second, taken in the light most favorable to Johnson, the record also shows that Crofoot or Clohessy continued to assure Johnson and other Golden Eagle drivers who contacted them about Johnson that they were going to take care of him and that the drivers need not take action or render aid. Over the course of the first few days, these drivers provided Crofoot or Clohessy with information about Johnson's worsening condition. This information allowed the jury to conclude that Golden Eagle knew that Johnson was in imminent peril or danger if he was left unattended in his truck and not transported home immediately or otherwise provided with medical assistance. It also allowed a jury to conclude that Golden Eagle continued to make assurances that prevented others from assisting Johnson. Thus, sufficient evidence establishes Golden Eagle's knowledge of danger or imminent peril to Johnson.
Golden Eagle's reliance on Folsom and Webstad does not alter this analysis. Although the Folsom court looked at the timing of the act triggering the doctrine in relation to when the danger existed, Folsom is factually distinguishable. In Folsom, the defendant left a security camera in place, but no longer monitored it after the security contract expired long before the defendant knew the plaintiffs were at risk for harm. Folsom, 135 Wn.2d at 677. Here, in contrast, the situation evolved over time, and Golden Eagle continued to make assurances, relied on by others, as it learned additional information about Johnson's worsening condition. If Golden Eagle's only assurance occurred when it initially had contact with Johnson, this case would be more similar to Folsom, but the ongoing contact and continued assurances, despite knowledge that Johnson's situation was deteriorating, factually distinguishes it from Folsom.
Golden Eagle further asserts that "[a]s in Webstad, Johnson's repeated assertion that he needed no medical care are subject to only one interpretation: He is fine, and no imminent peril exists." Br. of Appellant at 40. Again, Golden Eagle's argument ignores important factual distinctions. In Webstad, the defendant twice offered to call for emergency assistance after his girlfriend took pills in an apparent suicide attempt, but he did not call for aid when his girlfriend refused his offers and continued to appear unaffected by the pills. Eventually, the girlfriend passed out and, although the boyfriend then called 911, she died a few hours later. The personal representative of the girlfriend's estate sued the boyfriend, alleging that his negligent conduct on the night of her suicide caused her death. Webstad, 83 Wn. App. at 863-64.
The trial court granted the defendant's summary judgment motion and dismissed the claim. Webstad, 83 Wn. App. at 864. We affirmed, holding that the defendant had no "special relationship" with his girlfriend and that he was not otherwise liable for her death because there is no general duty to prevent others from self-inflicted harm; the girlfriend created her own risk of injury by attempting suicide; the defendant did not create the risk of harm, induce the girlfriend's reliance, or prevent her from seeking assistance from others; and the defendant called for assistance when she became helpless. Webstad, 83 Wn. App. at 870-75. Specifically, we stated:
We decline to impose a legal duty to immediately summon aid whenever a person has reason to suspect that another person may be attempting suicide. [The girlfriend] created the risk of her own injury and the necessity that she rely on others to save her. Therefore, no "special relationship" existed because [the defendant] did not create or increase the risk of harm to [her], or induce her reliance, or prevent her from seeking assistance from others. We thus conclude that [the defendant and his girlfriend] did not have a "special relationship" giving rise to a duty for [the defendant] to protect her from herself.
Webstad, 83 Wn. App. at 875-76 (emphasis added) (footnotes omitted). Webstad does not hold that a person's initial refusal of an offer of medical assistance demonstrates that others can reasonably assume the person is not in imminent peril or danger. In fact, in Webstad, we did not rely on the defendant's lack of knowledge of risk to his girlfriend in holding that summary judgment was appropriate based on lack of duty. Instead, we focused on the fact the defendant did not induce any reliance or prevent his girlfriend from helping herself. Here, the evidence was sufficient to allow the jury to find that Golden Eagle knew Johnson was at risk if it did not provide its promised assistance, as was demonstrated when Johnson's situation deteriorated over time.
We discuss the reasonable reliance issue in greater depth below.
Golden Eagle also suggests that it did not know of any danger or peril because it had no reason to believe that Johnson was particularly susceptible to infections or otherwise in a fragile condition. At trial, evidence suggested that Johnson's existing health conditions and their various treatments made him more susceptible to infection and, given his medical history, he should have been aware that it was vital that he seek immediate medical attention when his foot became so sore that he could not drive. There was no evidence that Golden Eagle was aware of these conditions. Thus, Golden Eagle is correct that the evidence did not establish that it had reason to know Johnson was particularly vulnerable before he reported his inability to deliver his load.
But even if Golden Eagle was unaware of Johnson's particular vulnerability, the record shows that other drivers continued to report their concerns based on Johnson's deteriorating condition. This information was sufficient to give a reasonable person cause to believe that, regardless of any particular vulnerability, Johnson's physical and mental condition was worsening. There was also ample evidence allowing a jury to find that Golden Eagle continued to give assurances to others, despite its knowledge of Johnson's increasing distress. Golden Eagle's lack of knowledge of Johnson's vulnerability was irrelevant when it was made aware of Johnson's worsening condition.
Golden Eagle further asserts that because the other drivers left Johnson, even after personally observing his condition, the evidence was insufficient to demonstrate imminent peril. But Golden Eagle ignores the fact that the testifying drivers stated that they left Johnson without seeking additional help for him because of Golden Eagle's assurances that it was taking care of the situation. This evidence places this case clearly within the voluntary rescue doctrine. In sum, the evidence at every stage of the trial, taken in the light most favorable to the Johnsons, was sufficient to allow a reasonable person to conclude that Golden Eagle knew of Johnson's imminent peril or danger when it gave assurances to Johnson and others that it would help him.
It may also be worth noting that throughout the trial, Golden Eagle appeared to deny that it offered to provide Johnson with medical assistance or, for that matter, that Johnson requested medical assistance. Although the record supports this assertion, Johnson's claim focused on Golden Eagle's apparent offer to help him get home with his truck and Johnson's and others' reliance on that offer, not on any request for, or offer of, medical assistance.
D. Reasonable Reliance
Jury instruction 20 also required that the jury find as reasonable Johnson's, or others,' reliance on Golden Eagle's alleged promise to provide assistance. Golden Eagle argues that the evidence did not establish reasonable reliance by Johnson or others. Again, we disagree. 1. Johnson Citing Webstad, Golden Eagle contends that "[n]o reasonable jury could have found that Glenn Johnson reasonably relied on Golden Eagle's alleged Thursday promise to him — the only alleged promise from Golden Eagle to him — because he refused Golden Eagle's immediate offer or suggestion he obtain medical assistance." Br. of Appellant at 42-43. Golden Eagle argues that Johnson's failure to obtain medical assistance as soon as possible, despite Crofoot's suggestion that he do so, shows, as a matter of law, that Johnson did not reasonably rely on Golden Eagle's "supposed offer to get him home — over 500 miles away" and "cut off Golden Eagle's alleged duty to rescue." Br. of Appellant at 43, 30. But Webstad does not hold that when a person refuses an offer of immediate medical attention, that person does not later reasonably rely on additional offers of assistance.
Here, the record is sufficient to allow a reasonable jury to find Johnson's reliance on Golden Eagle's assurance of help reasonable. The record, taken in the light most favorable to Johnson, shows that, although Johnson declined Crofoot's initial suggestion that he seek medical assistance, (1) he accepted Crofoot's apparent offer of transportation home to Portland, (2) he continued to rely on this offer when he refused other assistance offers, and (3) other drivers relied on Crofoot's offer of help and delayed taking steps to assist Johnson.
As Johnson's condition deteriorated over time, and the promised assistance did not arrive, his reliance would clearly have become unreasonable. If these were all the facts, Golden Eagle's argument might have merit. But a reasonable jury could conclude from the evidence that Johnson's condition quickly deteriorated after he spoke to Crofoot and that he was not able to reevaluate his need for immediate medical assistance. But Crofoot continued to assure other drivers who expressed increasing concern about Johnson's condition. The question becomes whether those drivers reasonably relied on Crofoot's asserted promise of assistance.
2. Other Drivers
Golden Eagle also argues that the evidence does not support the conclusion that Sanchez, Mendez, or Gomez reasonably relied on any of its alleged assurances that it would provide help to Johnson.
a. Sanchez
Golden Eagle argues that because Sanchez left Johnson alone after picking up his load on Thursday, October 31, and did not offer Johnson assistance before he contacted Crofoot, the jury could not have found that Sanchez reasonably relied on Crofoot's "alleged statement" that he was assisting Johnson. Br. of Appellant at 43. Golden Eagle also argues that Sanchez did not rely on Crofoot's statements because he could not have helped Johnson return home anyway because he had a load to deliver. These assertions have no merit.
The fact that Crofoot's assurances occurred after Sanchez's contact with Johnson does not show that Sanchez did not subsequently rely on them. Although Sanchez called Crofoot after leaving Johnson the first time, Sanchez testified that he did not attempt to get Johnson additional assistance, beyond arranging for someone to make sure Johnson had food and water, and he did not contact Johnson's wife because of Crofoot's assurances. There is no evidence suggesting that, if Crofoot had told Sanchez that Golden Eagle was not planning to help Johnson, Sanchez would not have immediately attempted to find some way to assist him. In fact, Sanchez's later actions demonstrated that he remained concerned about Johnson and, when it became apparent that Crofoot was not providing the promised help, Sanchez took action himself. Furthermore, Sanchez knew that Crofoot was in charge of dispatching drivers in the area, so this evidence was sufficient to allow the jury to find that Sanchez reasonably relied on Crofoot's assurances when he did not personally seek more immediate assistance for Johnson.
Additionally, Sanchez testified that, if Crofoot had asked him to, he would have tried to take Johnson back to Portland then, despite the difficulties due to Johnson's condition. This evidence was also sufficient to show that Sanchez's reliance on Crofoot's assurances that (1) Golden Eagle would take care of Johnson and (2) Sanchez did not need to worry about him, contributed to Sanchez's decision to leave Johnson without first providing or finding him additional help.
Golden Eagle further argues that the evidence that Sanchez contacted Mendez and asked him to check on Johnson also shows that Sanchez did not rely on Crofoot's assurances. This demonstrates that Sanchez was concerned about Johnson and that he wanted to ensure that Johnson was cared for, but Sanchez's arranging for someone to look in on Johnson does not show that Sanchez did not also rely of Crofoot's assurances when he left Johnson at the rest stop without attempting to find someone else to help get Johnson home or obtain medical assistance.
b. Mendez
Golden Eagle next argues that the evidence does not establish that Mendez reasonably relied on any assurances from Crofoot when he failed to obtain additional help for Johnson. Again, Golden Eagle asserts that any alleged assurances came after Mendez's contact with Johnson. The record shows that, despite his concerns about Johnson's condition, Mendez stated that he did not offer Johnson any additional assistance because Johnson told him "he already talked to [Crofoot] and they — they had already arranged something," or "worked things out." RP (Aug. 7, 2006) at 120-21. Thus, Mendez was also aware of Crofoot's apparent assurances before he left Johnson. Notably, this also strongly suggests that Johnson continued to rely on those assurances and explains why Johnson did not ask Mendez to contact anyone or ask him for help.
Additionally, as with Sanchez, that Mendez did not receive direct assurances from Crofoot until after he left Johnson, fails to establish that Mendez would not have taken additional steps to help Johnson by arranging for someone else to contact him or calling for emergency assistance without those assurances. This evidence clearly allowed the jury to find that, although Mendez did not immediately rely on direct assurances from Crofoot, he ultimately relied on them. And, as with Sanchez, this reliance was reasonable, given that Mendez knew Crofoot was in charge of dispatching drivers in the area.
c. Gomez
Golden Eagle argues that Gomez clearly did not rely on any assurances from Crofoot because he personally took action to help Johnson. This assertion is correct. When Gomez acted to help Johnson, he obviously was not relying on Golden Eagle to provide assistance. But this alone does not show that Golden Eagle was not negligent in failing to assist Johnson before Gomez attempted to help him. We discuss the proximate cause issue below.
3. Continued Reliance
Golden Eagle also argues that by Friday afternoon, the drivers were already discussing how to get Johnson home and that this demonstrates that they were not relying on any alleged assurances from Crofoot.
Part of this argument seems to relate more to contributory negligence by Gomez, rather than whether there was reasonable reliance.
Golden Eagle is correct that once the drivers started to take action on their own, they were no longer relying on any alleged assurances from Golden Eagle. But this does not establish that Golden Eagle did not have a duty to help Johnson. Taken in the light most favorable to Johnson, the evidence was sufficient to allow the jury to find that Johnson, Sanchez, and Mendez relied on Crofoot's assurances; accordingly, the issue becomes not whether there was further reasonable reliance but whether the earlier reliance resulted in a delay that was a proximate cause of Johnson's ultimate injuries.
The evidence taken in the light most favorable to the Johnsons at each stage of the trial allowed a reasonable jury to conclude that (1) Golden Eagle knew Johnson was in imminent peril or danger and (2) Johnson, Sanchez, and Mendez reasonably relied on Crofoot's assurances in delaying seeking additional assistance. Furthermore, the probable lack of reliance by Gomez was not fatal to the Johnsons' claims because, as discussed below, Golden Eagle did not show that Gomez's conduct was a proximate cause of Johnson's injuries. Thus, Golden Eagle's assertion that the trial court erred in denying its motions for a directed verdict because the evidence failed to establish a duty fails.
II. Contributory Negligence and Proximate Cause
Golden Eagle next argues that no reasonable jury could have concluded that Johnson, Dollie Johnson, and Gomez were not contributorily negligent or that the Woodburn ambulance's negligence was not a proximate cause of Johnson's injuries.
Jury instruction 10 provided in part:
(3) Furthermore, defendant also claims as an affirmative defense that plaintiffs' injuries and damages were caused in whole or in part by the fault of others including Gabriel Sanchez, Jose Gomez, Jesus Mendez and Woodburn Ambulance.
The defendant claims that one or more of these acts was a proximate cause of plaintiffs' own injuries and damage. The plaintiff denies these claims.
CP at 1004. Although this instruction includes Sanchez, and the jury found Sanchez was not negligent, Golden Eagle does not argue on appeal that Sanchez was contributorily negligent.
A. Johnson
Golden Eagle argues that it cannot be liable because Johnson failed to seek medical care or accept other offers of transportation when he knew he was ill, "ignore[d]" his foot problem "for months," was aware he had medical conditions that made him particularly susceptible to infection, and refused offers of medical assistance and transportation because of concerns about insurance and about leaving his truck behind. Br. of Appellant at 46. Golden Eagle further asserts that although the evidence establishes Johnson may not have been capable of any decision-making approximately 24 hours before Sanchez got him to Portland, Johnson was still capable of seeking assistance up until Saturday and he failed to do so.
Jury instruction 10 provided in part:
(2) . . . defendant claims as an affirmative defense that the plaintiffs were contributory (sic) negligent in one or more of the following respects:
-failing to obtain medical care and assistance despite reasonable opportunities to do so;
-refusing offers of aid and emergency medical services;
-failing to obtain or refusing offers of transportation;
-failing to call for emergency medical services of 911.
CP at 1004. And jury instruction 28 provided: "Contributory negligence is negligence on the part of a person claiming injury or damage that is a proximate cause of the injury or damage claimed." CP at 1021.
Jury instruction 26 further provided:
A person who is liable for an injury to another is not liable for any damages arising after the original injury that are proximately caused by failure of the injured person to exercise ordinary care to avoid or minimize such new or increased damage.
The defendant has the burden to prove plaintiff's failure to exercise ordinary care and the amount of damages, if any, that would have been minimized or avoided.
CP at 1019 (emphasis added). And jury instruction 12 provided in part:
The defendant has the burden of proving both of the following propositions:
First, that the plaintiffs acted, or failed to act, in one of the ways claimed by the defendant, and that in so acting or failing to act, the plaintiffs were negligent;
Second, that the negligence of the plaintiffs was a proximate cause of the plaintiff's own injuries and was therefore contributory negligence.
CP at 1006 (emphasis added).
In addition, jury instruction 16 provided:
Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances.
CP at 1010. And jury instruction 18 provided: "Ordinary care means the care a reasonably careful person would exercise under the same or similar circumstances." CP at 1011. No challenges were taken to any jury instruction at trial, thus, they are the law of the case. Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 917, 32 P.3d 250 (2001).
No one disputes that had Johnson sought immediate medical attention, he would likely have avoided or minimized his injuries. Accordingly, under the instructions in this case, the issue is whether Golden Eagle carried its burden to show that Johnson's decision to not seek immediate medical attention and to rely instead on Crofoot's assurances that he was sending someone to help him get home was something no reasonably careful person in the same or similar circumstances would have done.
Notably, the issue of whether Johnson's decision to wait for promised transportation rather than seek immediate medical assistance was something a reasonably careful person would do under these circumstances significantly overlaps with whether Johnson reasonably relied on Crofoot's assurances in the context of the duty issue discussed above.
As discussed above, when Johnson initially relied on Crofoot's assurances, his reliance was reasonable. Although Johnson was potentially aware of medical conditions and medical treatments that might make him more vulnerable to infection, there was no evidence that at the time Crofoot made his initial assurances that Johnson or any reasonable person would have had reason to believe that his foot problem would progress as rapidly it did or that it would be dangerous to wait for the promised assistance instead of seeking immediate medical attention. In fact, Johnson's personal physician, Dr. Karen Pluedeman, testified that if Johnson had told her that his foot callous had become so painful that he could no longer drive his truck, she would have advised him to stop driving and to see her when he returned home unless he was also vomiting or had a fever.
Furthermore, there was no evidence before the jury suggesting that Johnson anticipated any significant delay in Golden Eagle's promised help. Additionally, there was considerable testimony that the filthy conditions that developed due to the delay might have contributed to Johnson's ultimate injury and that this hazard did not exist when Johnson relied on Crofoot's initial assurances. Thus, we conclude that Golden Eagle failed to show that Johnson did not exercise ordinary care when he did not seek immediate assistance and, instead, relied on Crofoot's assurances.
B. Dollie Johnson
Golden Eagle further contends the evidence established that Dollie Johnson was also contributorily negligent because she did not attempt to help Johnson or to contact anyone to find out where he was when he failed to call her regularly after telling her that his foot hurt and that he had fallen and when he then did not arrive home when expected.
Golden Eagle is correct that the record, taken in the light most favorable to the Johnsons, shows that (1) Johnson regularly called his wife from the road, (2) Dollie Johnson did not hear from Johnson after he called and told her he was hurt, and (3) Dollie Johnson originally expected Johnson to be home Friday or Saturday. But Dollie also testified that, even though she often heard from Johnson daily, it was not unusual for him not to contact her if, for instance, he was in an area where his cellular telephone did not work. She also testified that she did not attempt to help Johnson because he told her that Crofoot was arranging to get him home. Given this testimony, a reasonable jury could conclude that Dollie Johnson did not act negligently, but instead reasonably relied on Johnson's statement that Crofoot was taking care of the situation. See Webstad, 83 Wn. App. at 875-76.
C. Gomez
Golden Eagle further argues that the jury erred when it found that Gomez was not contributorily negligent when he (1) decided to attempt to have someone drive Johnson home rather than immediately seek medical help and (2) left Johnson alone in his truck in the Woodburn truck lot after the ambulance left without assisting him and without letting anyone know where he was. This argument arguably has merit but, even if the jury had determined that Gomez was negligent when he attempted to assist Johnson, it would not have reduced Golden Eagle's liability because the evidence would not have been sufficient to establish proximate cause and any such error was clearly harmless.
First, jury instruction 22 provided:
If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner.
CP at 1015. This instruction prevented the jury from reducing Golden Eagle's liability due to any additional harm caused by Gomez's allegedly negligent, ineffective effort to assist Johnson.
Second, jury instruction 13 provided:
Before a percentage of negligence may be attributed to any entity that is not a party to this action, the defendant has the burden of proving each of the following propositions:
First, that the person was negligent;
Second, that the person's negligence was a proximate cause of the injury to the plaintiffs.
CP at 1007 (emphasis added). And jury instruction 26 provided that it was Golden Eagle's burden to prove the reduction or avoidance of damages if it established another person was contributorily negligent.
Even assuming Gomez was negligent, the record shows that Johnson was already seriously ill and covered in human waste when Gomez attempted to assist him and there was no evidence establishing when Johnson's leg became unsalvageable. Accordingly, as it was Golden Eagle's burden to establish any additional damage Gomez's alleged negligence caused and Golden Eagle failed to present sufficient evidence on this issue, the jury had no basis to reduce Golden Eagle's liability.
In its brief, Golden Eagle candidly admits that "every expert witness agreed that it was impossible to know when the plaintiff's leg became unsalvageable." Br. of Appellant at 4. Although this fact might have been helpful to Golden Eagle if it had been Johnson's burden to establish when his injuries occurred in relation to any contributory negligence, this admission is not helpful here because it is Golden Eagle's burden to establish this fact.
D. Proximate Cause: Woodburn Ambulance
Finally, Golden Eagle also contends that the jury erred when it found that the Woodburn ambulance's negligence was not a proximate cause of Johnson's injuries. As discussed above, it was Golden Eagle's burden to prove that this negligence contributed to Johnson's injuries. Golden Eagle failed to carry this burden because it presented no evidence about when Johnson's leg became unsalvageable. Accordingly, the jury did not err when it found that the Woodburn ambulance's negligence was not a proximate cause of Johnson's injuries.
Neither party has requested attorney fees on appeal.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., QUINN-BRINTNALL, J., concur.