Summary
holding that withholding an objection constituted a legitimate trial tactic seeking to avoid emphasizing inadmissible evidence of past alcohol intoxication and arrest in the course of a DUI trial
Summary of this case from State v. VazquezOpinion
No. 43522–5–II.
2013-10-22
STATE of Washington, Appellant, v. Charles Wayne McLEAN, Respondent.
Anne Mowry Cruser, Clark County Prosecuting Attorney, Vancouver, WA, for Petitioner. John A. Hays, Attorney at Law, Longview, WA, for Respondent.
Anne Mowry Cruser, Clark County Prosecuting Attorney, Vancouver, WA, for Petitioner. John A. Hays, Attorney at Law, Longview, WA, for Respondent.
WORSWICK, C.J.
¶ 4 The State appeals the superior court's order vacating Charles McLean's district court conviction for driving under the influence of alcohol. The State argues that the superior court erred by ruling that (1) the traffic stop was pretextual and therefore unconstitutional and (2) McLean received ineffective assistance of counsel because his trial counsel failed to object to improper opinion testimony. We agree with the State, reverse the superior court's vacation of McLean's conviction, and reinstate McLean's conviction.
FACTS
¶ 5 Shortly after midnight on August 18, 2010, Trooper Richard Thompson of the Washington State Patrol was traveling westbound on State Route 500 in Clark County. Ahead of Trooper Thompson was a car driven by Charles McLean; no other vehicles were present.
¶ 6 Trooper Thompson had training and experience in identifying impaired drivers. Through this training and experience, he knew that (1) alcohol causes, delayed reactions that can result in a driver's drifting through the lane of travel and (2) alcohol impairs a person's ability to simultaneously perform multiple tasks such as maintaining the speed limit, staying within a lane, and using turn signals. Trooper Thompson estimated that in 2010 he stopped about 400 drivers for lane travel violations and he made over 200 arrests for driving under the influence.
¶ 7 McLean's car caught Trooper Thompson's attention because it was weaving from side to side within the left lane. Even though McLean was driving the speed limit, McLean's weaving made Trooper Thompson suspect that McLean might have been impaired. Trooper Thompson followed McLean's car and saw it cross the fog line three times. Trooper Thompson then activated his lights and initiated a traffic stop.
The fog line separates the left lane from the shoulder and a concrete barrier.
¶ 8 Once McLean pulled over, Trooper Thompson approached and advised that he stopped McLean for driving in the left lane without passing, weaving through the lane, and discarding a lit cigarette after Trooper Thompson activated his emergency lights. Trooper Thompson “immediately smelled an odor of intoxicants coming from the vehicle.” Clerk's Papers (CP) at 116.
¶ 9 After administering field sobriety tests, Trooper Thompson arrested McLean for driving under the influence of alcohol. McLean refused to provide a breath sample to measure his blood alcohol content. The State charged McLean with three counts: violating ignition interlock requirements, third degree driving while his license was suspended, and driving under the influence of intoxicants.
¶ 10 McLean filed a motion to suppress evidence obtained from the traffic stop, arguing that Trooper Thompson did not have a reasonable suspicion that McLean was driving under the influence. The district court held a hearing and denied McLean's motion in an oral ruling. McLean then pleaded guilty to violating ignition interlock requirements and driving while his license was suspended, but he proceeded to trial on the driving under the influence charge.
¶ 11 During a jury trial, the State elicited testimony about Trooper Thompson's training and experience in identifying impaired drivers. The State asked Trooper Thompson why he stops some drivers on suspicion of driving under the influence without ultimately arresting them. Trooper Thompson replied that he arrests drivers for driving under the influence only if he believes they are impaired by alcohol or drugs. McLean's counsel did not object to this testimony.
¶ 12 Later, while testifying about the incident involving McLean, Trooper Thompson stated that he arrested McLean for driving under the influence. Again, McLean's counsel did not object. The jury found McLean guilty of driving under the influence and, in a special verdict, found that he refused a lawful request to test his blood or breath.
¶ 13 McLean appealed to the superior court, arguing that (1) the district court erred by denying his motion to suppress because the traffic stop was pretextual and (2) he received ineffective assistance of counsel when his attorney failed to object to Trooper Thompson's testimony. The superior court agreed and remanded for dismissal with prejudice. The State then sought discretionary review in this court, which our commissioner granted. Ruling Granting Review, State v. McLean, No. 43522–5–II (Wash.Ct.App. July 30, 2012).
DISCUSSION
I. Denial of McLean's Motion to Suppress
¶ 14 The State first argues that the superior court erred because the district court correctly denied McLean's motion to suppress evidence from the traffic stop. McLean argues (1) that, as a threshold matter, we cannot effectively review the superior court's reversal because the district court failed to enter written findings and conclusions on the motion to suppress and (2) that the traffic stop was pretextual and therefore unconstitutional. We agree with the State.'
¶ 15 RALJ 9.1 governs review of the district court's decision, whether by us or by the superior court. State v. Ford, 110 Wash.2d 827, 829–30, 755 P.2d 806 (1988). In reviewing the district court's decision on a motion to suppress, we review factual determinations for substantial evidence and conclusions of law de novo. RALJ 9.1(a), (b); State v. Garvin, 166 Wash.2d 242, 249, 207 P.3d 1266 (2009). Because neither party has challenged the district court's factual determinations, they are verities on appeal. City of Seattle v. May, 151 Wash.App. 694, 697, 213 P.3d 945 (2009), aff'd, 171 Wash.2d 847, 256 P.3d 1161 (2011). Accordingly, our review is limited to a de novo determination of whether the district court properly derived conclusions of law from its factual findings. State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997). A. This Case Is Reviewable
¶ 16 As a threshold matter, McLean argues that we cannot effectively review the district court's decision because it failed to enter written findings of fact and conclusions of law following the hearing on McLean's CrRLJ 3.6 motion to suppress. This argument lacks merit.
¶ 17 CrRLJ 3.6(b) requires the district court to “ state findings of fact and conclusions of law” supporting its ruling on a motion to suppress evidence. (Emphasis added.) But CrRLJ 3.6 does not require the district court's findings and conclusions to be in writing. State v. Osman, 147 Wash.App. 867, 881 n. 8, 197 P.3d 1198 (2008), rev'd on other grounds, 168 Wash.2d 632, 229 P.3d 729 (2010); State v. Anderson, 51 Wash.App. 775, 778 n. 1, 755 P.2d 191 (1988). Accordingly, the absence of written findings and conclusions does not preclude our review of the district court's denial of a motion to suppress. Anderson, 51 Wash.App. at 778 n. 1, 755 P.2d 191.
CrRLJ 3.6 is unlike CrR 3.6, which requires the superior court to enter written findings and conclusions on a motion to suppress. Anderson, 51 Wash.App. at 778 n. 1, 755 P.2d 191.
¶ 18 McLean further claims that the district court's oral decision failed to address his argument that the traffic stop was pretextual. We disagree because the district court properly declined to reach the issue of pretext. The district court concluded that Trooper Thompson stopped McLean on the basis of a reasonable suspicion that McLean was driving under the influence of alcohol. Thus, for Trooper Thompson to conduct a traffic stop to investigate McLean for driving under the influence, “the use of pretext would be unnecessary.” State v. Ladson, 138 Wash.2d 343, 353, 979 P.2d 833 (1999). McLean's threshold arguments fail. B. The Traffic Stop Was Lawful
¶ 19 The State argues that Trooper Thompson conducted a lawful traffic stop based on a reasonable suspicion that McLean was driving under the influence. McLean argues that the traffic stop was unconstitutional because it was pretextual. We agree with the State.
¶ 20 Both the Fourth Amendment and article I, section 7 of the Washington Constitution prohibit unreasonable seizures. State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986). A traffic stop is a seizure. Kennedy, 107 Wash.2d at 4, 726 P.2d 445. Warrantless seizures are per se unreasonable, unless an exception to the warrant requirement applies. Ladson, 138 Wash.2d at 349, 979 P.2d 833. The State bears the burden of establishing an exception to the warrant requirement. Ladson, 138 Wash.2d at 350, 979 P.2d 833.
¶ 21 One exception is an investigative stop, including a traffic stop, that is based on a police officer's reasonable suspicion of either criminal activity or a traffic infraction. State v. Arreola, 176 Wash.2d 284, 292–93, 290 P.3d 983 (2012); see Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A reasonable suspicion exists when specific, articulable facts and rational inferences from those facts establish a substantial possibility that criminal activity or a traffic infraction has occurred or is about to occur. State v. Snapp, 174 Wash.2d 177, 197–98, 275 P.3d 289 (2012).
¶ 22 When reviewing the lawfulness of an investigative stop, we evaluate the totality of the circumstances presented to the police officer. State v. Doughty, 170 Wash.2d 57, 62, 239 P.3d 573 (2010). Those circumstances may include the police officer's training and experience. State v. Glover, 116 Wash.2d 509, 514, 806 P.2d 760 (1991).
¶ 23 Here, the traffic stop was lawful because Trooper Thompson had a reasonable suspicion that McLean was driving under the influence. Trooper Thompson observed McLean's vehicle weave within its lane and cross onto the fog line three times. From the articulable fact of this observation, and from his training and experience identifying driving under the influence, it was rational for Trooper Thompson to infer that there was a substantial possibility that McLean was driving under the influence. That substantial possibility establishes a reasonable suspicion permitting Trooper Thompson to make a warrantless traffic stop. See Arreola, 176 Wash.2d at 292–93, 290 P.3d 983;Snapp, 174 Wash.2d at 197–98, 275 P.3d 289.
The State further argues that the superior court misplaced its reliance on State v. Prado, 145 Wash.App. 646, 186 P.3d 1186 (2008) (holding that a one-second incursion over the shoulder line did not establish a reasonable suspicion of a failure to remain “as nearly as practicable” within a single lane of travel). Because we review the district court's decision de novo, we do not address the superior court's reasoning. State v. Weaver, 161 Wash.App. 58, 63, 248 P.3d 1116 (2011).
¶ 24 Nonetheless, McLean claims that the traffic stop was pretext to investigate him for driving under the influence. We disagree.
The State asserts that McLean failed to preserve his claim of pretext because he raised it for the first time on appeal in the superior court. But the State is incorrect. In his memorandum supporting his motion to suppress, McLean argued to the district court that the traffic stop was pretextual.
¶ 25 A traffic stop is pretextual if it is conducted not to enforce a violation of the traffic code but to investigate some other crime, unrelated to driving, for which reasonable suspicion and a warrant are lacking. Ladson, 138 Wash.2d at 349, 979 P.2d 833. McLean claims (1) Trooper Thompson had a reasonable suspicion only of McLean's driving in the left lane without passing, and (2) Trooper Thompson lacked a reasonable suspicion of driving under the influence. But as we have explained above, Trooper Thompson had a reasonable suspicion that McLean was driving under the influence, and he conducted this traffic stop to investigate that crime. Therefore this traffic stop was not pretextual. McLean's argument fails.
A pretextual traffic stop violates article I, section 7 of the Washington Constitution. Ladson, 138 Wash.2d at 353, 979 P.2d 833;see also Arreola, 176 Wash.2d at 294, 290 P.3d 983. But a pretextual traffic stop does not violate the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89(1996).
II. Ineffective Assistance of Counsel
¶ 26 The State further argues that McLean did not receive ineffective assistance of counsel. McLean claims he received ineffective assistance of counsel when his attorney did not object to Trooper Thompson's allegedly improper opinion testimony. We agree with the State.
¶ 27 Whether a defendant received ineffective assistance of counsel is a mixed question of law and fact, which we review de novo. In re Pers. Restraint of Fleming, 142 Wash.2d 853, 865, 16 P.3d 610 (2001) When claiming ineffective assistance of counsel, a defendant bears the burden of satisfying the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Hendrickson, 129 Wash.2d 61, 77–78, 917 P.2d 563 (1996). First, the defendant must show that counsel's performance was deficient. Fleming, 142 Wash.2d at 865, 16 P.3d 610. Second, the defendant must show that the deficient performance prejudiced the defendant's case. Fleming, 142 Wash.2d at 865, 16 P.3d 610. A failure to satisfy either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
¶ 28 McLean's counsel did not object to Trooper Thompson's testimony that (1) he arrests drivers for driving under the influence only if he believes they are impaired by alcohol or drugs and (2) he arrested McLean. McLean now contends that his counsel was ineffective for failing to object because Trooper Thompson's testimony conveyed an improper opinion that McLean was guilty. We disagree.
McLean concedes that Trooper Thompson properly opined that McLean was intoxicated. See City of Seattle v. Heatley, 70 Wash.App. 573, 576, 578–79, 854 P.2d 658 (1993). But McLean argues that Trooper Thompson's testimony “went well beyond proper opinion” because he also stated that he arrested McLean. Br. of Resp't at 26.
¶ 29 McLean fails to carry his burden to show that his attorney's performance was deficient. See Hendrickson, 129 Wash.2d at 77–78, 917 P.2d 563. When determining whether counsel's performance was deficient, we begin with a strong presumption of counsel's effectiveness. State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995). Counsel's performance is deficient if it falls below an objective standard of reasonableness under all the circumstances. Fleming, 142 Wash.2d at 865–66, 16 P.3d 610. But counsel's performance is not deficient if it can be characterized as a legitimate trial tactic. State v. Kyllo, 166 Wash.2d 856, 863, 215 P.3d 177 (2009).
¶ 30 McLean claims that “there was no possible tactical reason for trial counsel to refrain from objecting” to Trooper Thompson's testimony. Br. of Resp't at 27. But it can be a legitimate trial tactic to withhold an objection to avoid emphasizing inadmissible evidence. In re Pers. Restraint of Davis, 152 Wash.2d 647, 714, 101 P.3d 1 (2004).
McLean asserts that the superior court implicitly determined that counsel's failure to object was not a legitimate trial tactic. But because we review the district court's decision de novo, the superior court's determinations are not binding on us. Weaver, 161 Wash.App. at 63, 248 P.3d 1116.
¶ 31 While laying foundation for testimony based on Trooper Thompson's experience in investigating driving under the influence of alcohol or drugs, the State asked why some of his investigations do not lead to arrests. Trooper Thompson explained that “if you're not impaired, you're not going to get arrested for DUI. So if I do the standardized field sobriety tests ... [a]nd determine that they're not impaired, they do not get arrested.” CP at 106–07. Later, after describing his investigation of McLean and administration of field sobriety tests, Trooper Thompson stated, “I arrested [McLean] for DUI.” CP at 131. McLean's attorney did not object to these statements.
¶ 32 Under the circumstances here, withholding an objection can be characterized as a legitimate trial tactic seeking to avoid emphasizing Trooper Thompson's testimony about McLean's intoxication and arrest. See Davis, 152 Wash.2d at 714, 101 P.3d 1. Because McLean's counsel's performance did not fall below an objective standard of reasonableness, it was. not deficient. Fleming, 142 Wash.2d at 865–66, 16 P.3d 610. Therefore McLean's ineffective assistance claim fails.
¶ 33 McLean also fails to demonstrate prejudice. A deficient performance prejudices the defendant's case when, within reasonable probabilities, the trial's result would have been different had the deficient performance not occurred. Hendrickson, 129 Wash.2d at 78, 917 P.2d 563. Counsel's failure to object to evidence cannot prejudice the defendant unless the trial court would have ruled the evidence inadmissible. Hendrickson, 129 Wash.2d at 79–80, 917 P.2d 563;McFarland, 127 Wash.2d at 337 n. 4, 899 P.2d 1251. Here, McLean fails to show that Trooper Thompson's testimony was inadmissible.
¶ 34 It is generally improper for a witness to opine that the defendant is guilty; to do so is to invade the jury's exclusive province. State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001). To determine whether a witness's statement is improper opinion testimony on the defendant's guilt, we consider the circumstances of the case, including the type of witness involved, the nature of the testimony, the nature of the charges, the type of defense, and other evidence before the trier of fact. Demery, 144 Wash.2d at 759, 30 P.3d 1278;City of Seattle v. Heatley, 70 Wash.App. 573, 579, 854 P.2d 658 (1993).
¶ 35 However, a police officer may opine that, based on his experience and observations, the defendant was intoxicated and impaired. Heatley, 70 Wash.App. at 579–80, 854 P.2d 658. Under the circumstances of this case, Trooper Thompson's testimony did no more than convey his opinion that McLean was intoxicated.
¶ 36 Arguing to the contrary, McLean claims that “the fact of an arrest is not [admissible as] evidence because it constitutes the arresting officer's opinion that the defendant is guilty.” Br. of Resp't at 25. But McLean cites no authority stating that the fact of an arrest is categorically inadmissible. And the two cases McLean cites are distinguishable.
¶ 37 McLean first cites State v. Carlin, 40 Wash.App. 698, 700 P.2d 323 (1985). In Carlin, a police officer testified that a police dog followed a “fresh guilt scent” from the scene of a burglary to the location where one-defendant was found. 40 Wash.App. at 703, 700 P.2d 323;see id. at 700, 700 P.2d 323. But the Carlin court stated that this testimony “arguably was an improper opinion” before deciding that any error was harmless. 40 Wash.App. at 703, 700 P.2d 323. Moreover, stating that a defendant emitted an objectively ascertainable “guilt scent” is not comparable to stating the fact of an arrest.
¶ 38 McLean next cites Warren v. Hart, 71 Wash.2d 512, 429 P.2d 873 (1967), another case that fails to support his argument. Warren is a civil case in which defense counsel argued that the jury should find that a driver was not negligent because police officers decided not to issue a traffic citation at the scene of a car accident. 71 Wash.2d at 517, 429 P.2d 873.Warren says nothing about admitting evidence showing the fact of a criminal defendant's arrest.
¶ 39 Because McLean fails to show that evidence of his arrest was inadmissible, his attorney's failure to object to this evidence did not prejudice his case. McLean's ineffective assistance of counsel claim fails.
¶ 40 The district court properly denied McLean's motion to suppress, and McLean received the effective assistance of counsel. Therefore, we reverse the superior court's vacation of McLean's conviction, and we reinstate McLean's conviction.
¶ 41 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 in accordance with RCW 2.06.040, it is so ordered.
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Denial of the estate's motion for judgment on liability as a matter of law.
¶ 37 The estate seeks more on appeal than reversal and remand; it asks that we find that the trial court should have granted its posttrial motion for a new trial. The new trial it sought, though, would be limited to damages—the estate wanted the court to instruct the jury that Degerstrom was negligent and its negligence was a proximate cause of Mr. Lafayette's death. On appeal, it characterizes its posttrial motion as implicitly one for judgment as a matter of law on the issue of liability. It argues that the court erred in denying it.
¶ 38 The estate did not move for judgment as a matter of law at the close of the evidence as contemplated by CR 50(b). In authorizing postverdict motions for judgment as a matter of law, CR 50(b) speaks only of renewing an equivalent motion made under CR 50(a) before the case was submitted to the jury. The estate argues that it was excused from moving for the relief at the close of the evidence, however, because the motion would have been futile in light of the trial court's denial of its motion in limine. It cites Kaplan v. N.W. Mut. Life Ins. Co., 115 Wash.App. 791, 804 n. 6, 65 P.3d 16 (2003) in support.
¶ 39 Degerstrom's response makes a one-sentence mention of the estate's alleged waiver of its right to move for judgment as a matter of law. Br. of Resp't at 6. But it does not dispute the estate's argument that its posttrial motion was implicitly a CR 50(b) motion or provide any authority or argument in opposition to the estate's claimed excuse of futility. Absent any authority or argument in opposition, we assume without deciding that the estate's posttrial motion was, in part, a motion for judgment as a matter of law and that its failure to move for such relief at the close of the evidence is excused. See RAP 10.3(a)(6) and (b) (a respondent's brief, like the appellant's, must include argument on the issues presented for decision along with citations to legal authority).
¶ 40 Citing Pudmaroff v. Allen, 138 Wash.2d 55, 68, 977 P.2d 574 (1999), the estate contends that while violation of a controlling statute or regulation is not negligence per se, evidence of such a violation can be conclusive if the violator fails to present any evidence of excuse or justification. It argues that it presented evidence of WISHA violations for which Degerstrom presented no excuse or justification. It focuses on regulations imposing a requirement to chock a vehicle's tires in certain situations because, it argues, “there is no dispute that the auger truck would never have rolled away had the wheels been chocked.” Br. of Appellant at 31. If a requirement for chocking was breached it argues that the “breach was, as a matter of law, a proximate cause of [Mr.] Lafayette's death.” Id.
¶ 41 The principal WISHA regulation that Degerstrom alleges was not enforced is WAC 296–155–610(2)(b) (entitled “Motor Vehicles on Construction Sites”), which provides:
(b) Before leaving a motor vehicle unattended;
(i) The motor must be stopped.
(ii) The parking brake must be engaged and the wheels turned into curb or berm when parked on an incline.
(iii) If parking on an incline and there is no curb or berm, the wheels must be chocked or otherwise secured.
Citing evidence that Degerstrom did not require Sharp–Line to use chocks and did not inspect Sharp–Line's vehicles for chock usage, the estate contends that Degerstrom undisputedly violated this WISHA regulation.
¶ 42 Degerstrom's position at trial and on appeal is that the auger truck in which Mr. Lafayette died was not “unattended” and therefore the regulation did not apply.
¶ 43 Degerstrom's first argument that the truck was not unattended before beginning to roll down the incline is a logically fallacious one: Degerstrom argues that “[t]he Washington Administrative Code requires a vehicle's motor to be stopped in order for it to be considered ‘unattended.’ ” Br. of Resp't at 38 (footnote omitted). It infers this proposition from the regulatory language, “Before leaving a motor vehicle unattended: (i) The motor must be stopped.” Its construction misconstrues this language as saying something about what makes a motor vehicle “unattended,” when it is instead saying something about what operators are required to do when they leave a motor vehicle unattended. Were Degerstrom's construction correct, then the WAC would also require a vehicle's parking brake to be engaged for it to be considered “unattended.” For that matter, the wheels would have to be turned into a curb or berm when parked on an incline for it to be considered “unattended.” And a motor vehicle left remotely overnight, with no operator anywhere in the vicinity, would be considered “attended,” rather than “unattended,” as long as its motor was running, the parking brake was engaged, or its wheels were turned into a curb or berm and it was parked on an incline. Clearly the regulation is not describing what makes a vehicle “unattended” but only the safety measures that must be taken when it is left unattended.
¶ 44 Elsewhere, Degerstrom's position that a vehicle's motor must be stopped in order for it to be considered “unattended” appears to be based on the fact that the auger and tamper used by Mr. Lafayette and his supervisor were operated using a power take-off (PTO) from the truck's transmission, requiring that the motor be running. Degerstrom considers it obvious that “unattended” cannot include times when the operator of a truck has stepped outside of its cab to operate a PTO-powered piece of equipment. But WISHA regulations are construed liberally to achieve their purpose of providing safe working conditions. Potelco, Inc. v. Dep't of Labor & Indus., 166 Wash.App. 647, 653, 272 P.3d 262 (2012). It is not obvious that the Department of Labor and Industries would be unconcerned that the motor was running, the cab was unattended, and the only potential operators in the vicinity of this truck (pointed downhill), were engaged in other work that could distract their attention or prevent them from reaching the cab in the event of some hazard. The department might well require that a vehicle in this situation be attended by an employee in the cab or one who was not engaged in operating PTO equipment. What we do know from the record (although the evidence appears not to have been admitted at trial) was that the department did cite Sharp–Line for a violation of WAC296–155–610(2)(b).
¶ 45 The meaning of “unattended” that Degerstrom urges is unambiguous (parked, with the motor stopped, and the operators no longer in the vicinity) is contrary to any meaning attached to the term under OSHA. In interpreting our WISHA regulations in the absence of state decisions, we may look to OSHA regulations and consistent federal decisions. Wash. Cedar & Supply Co. v. Dep't of Labor & Indus., 137 Wash.App. 592, 604, 154 P.3d 287 (2007) (citing Adkins v. Aluminum Co. of Am., 110 Wash.2d 128, 147, 750 P.2d 1257, 756 P.2d 142 (1988)). OSHA's construction of “unattended” has not been uniform, varies depending upon the context, and recognizes that a vehicle that is left running may be considered “unattended.” See, e.g., 29 C.F.R.1910.178(m)(5); Letter from Russell B. Swanson, Director, Directorate of Construction, to Peter Kuchinsky II, Safety Trainer/Consultant, Construction Building Analysts (May 11, 2005), available at http:// www.osha.gov/pls/oshaweb/owadisp.show_document? p_table=INTERPRETATIONS & p_ id=25067; Letter from Russell B. Swanson, Director, Directorate of Construction, to Paul Hayes, Safety Manager, Skanska (Jan. 14, 2004), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document? p_ table=INTERPRETATIONS & p_id=24723 (stating that “when [a construction vehicle is] left unattended and running, the parking brake must be set, and if the vehicle is on an incline, in addition to setting the brake, the wheels must be chocked” (emphasis added)).
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678.
Although only briefly reviewed, OSHA regulations include a definition and requirements for industrial trucks used in general industry (not construction):
(ii) A powered industrial truck is unattended when the operator is 25 ft. or more away from the vehicle which remains in his view, or whenever the operator leaves the vehicle and it is not in his view.
(iii) When the operator of an industrial truck is dismounted and within 25 ft. of the truck still in his view, the load engaging means shall be fully lowered, controls neutralized, and the brakes set to prevent movement.
29 C.F.R.1910.178(m)(5). In a May 11, 2005 interpretation letter addressed to Peter Kuchinsky II, OSHA referred to this industrial truck regulation in addressing a question about construction equipment, stating:
Although these provisions do not apply to construction or earth-moving equipment, they address some of the same type of hazards. After considering the approach that was taken in § 1910.178(m)(5) and the hazards associated with construction equipment, we have determined that, for construction equipment such as bobcats, backhoes, and trenchers, leaving the motor running with the operator away from the controls will be considered a de minimis violation of § 1926.600(a)(3) where all of the following are met: the attachment is lowered, the controls are in the neutral position, the brakes are set, all manufacturer provided and recommended safety measures are utilized, and the operator is within 25 feet (and still in view) of the equipment.
Letter to Paul Kuchinsky II, supra (footnote omitted).
¶ 46 The estate argues for the first time in its reply brief that “[w]hether a safety regulation applies on a particular job site is a question of law for the court.” Reply Br. at 20 (citing Manson v. Foutch–Miller, 38 Wash.App. 898, 902, 691 P.2d 236 (1984)); see also Ball v. Smith, 87 Wash.2d 717, 722–25, 556 P.2d 936 (1976) (it is the province of the trial court, not an expert witness, to interpret a statute or ordinance and determine whether it applies to a party). Its argument that the trial court should have determined whether WAC 296–155–610(2)(b) applied, or at least instructed the jury on a meaning for “unattended,” appears worthy of briefing and consideration in the retrial. We will not consider it in this appeal, however, for two reasons: it was not raised in the trial court and was raised for the first time in the estate's reply brief. RAP 2.5(a) (appellate courts need not entertain issues not raised in the trial court); Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 809, 828 P.2d 549 (1992) (issue raised for the first time in a reply brief is too late to warrant consideration).
¶ 47 In the trial court, the estate was content to have the jury decide whether the regulation applied. While we reject the two principal arguments Degerstrom offers on appeal as to why its construction of the regulation is correct, the fact remains that the estate allowed the meaning and application of the regulation to be decided by the jury. Both parties' witnesses offered their views as to whether the auger truck was “unattended” when the auger was being operated; the estate's witnesses said that it was unattended and Degerstrom's witnesses testified that it was attended, not unattended. As the case was tried, and viewed in the light most favorable to Degerstrom, the evidence could support a jury determination that the auger truck was not unattended at the time it began rolling down the incline. Cf. Wieder v. Towmotor Corp., 568 F.Supp. 1058, 1063 (E.D.Pa.1983) (experts' conflicting opinions as to whether forklift was left “unattended” when driver dismounted were submitted to the jury for its determination), aff'd,734 F.2d 9 (3d Cir.1984).
¶ 48 While placing principal reliance on WAC 296–155–610(2)(b), the estate points to evidence it presented of other alleged violations of WISHA regulations by Degerstrom as well. But that evidence was similarly disputed by Degerstrom's employees and experts at trial. And with respect to some of the WISHA regulations the estate argued were violated by Degerstrom, the estate did not conclusively demonstrate that any violation was a proximate cause of Mr. Lafayette's death.
¶ 49 The trial court did not err in denying the estate's motion for judgment as a matter of law on liability and a new trial limited to the issue of damages.
Refusal to instruct on a duty owed to the public.
¶ 50 The estate next appeals the trial court's refusal to instruct the jury that the general contractor on a highway construction project has a duty to exercise ordinary care to protect the traveling public from dangerous conditions that may arise within a construction zone. It claims to have relied on an alternative theory of liability that Degerstrom's negligent omissions created a peril to the motorists on Flowery Trail Road who were in the path of the auger truck as it rolled downhill. Its breach of that duty owed the public created liability to anyone injured in a reasonable attempt to rescue the imperiled motorists—in this case, the rescuer happened to be the employee of a subcontractor. See McCoy v. Am. Suzuki Motor Corp., 136 Wash.2d 350, 355, 961 P.2d 952 (1998) (rescue doctrine allows an injured rescuer to sue the party that caused the danger that required the rescue). It contends that the court's refusal to give the requested instruction prevented it from arguing this separate theory of negligence.
A plaintiff relying on the rescue doctrine must prove that (1) the defendant was negligent to the person rescued and that negligence created an appearance that the person rescued was in peril, (2) the peril or appearance of peril was imminent, (3) a reasonably prudent person would have concluded that the peril existed, and (4) the rescuer acted with reasonable care. McCoy, 136 Wash.2d at 355–56, 961 P.2d 952.
¶ 51 Jury instructions must allow the parties to argue their theories of the case, must not mislead the jury, and must as a whole inform the jury of the applicable law. Thompson v. King Feed & Nutrition Serv., Inc., 153 Wash.2d 447, 453, 105 P.3d 378 (2005). “Failure to permit instructions on a party's theory of the case, where there is evidence supporting the theory, is reversible error.” Barrett v. Lucky Seven Saloon, Inc., 152 Wash.2d 259, 266–67, 96 P.3d 386 (2004). “As with a trial court's instruction misstating the applicable law, a court's omission of a proposed statement of the governing law will be ‘reversible error where it prejudices a party.’ ” Id. at 267, 96 P.3d 386 (quoting Hue v. Farmboy Spray Co., 127 Wash.2d 67, 92, 896 P.2d 682 (1995)). On appeal, errors of law in jury instructions are reviewed de novo. Hue, 127 Wash.2d at 92, 896 P.2d 682.
¶ 52 The estate's proposed instruction was not a Washington pattern jury instruction; the authority it cited in proposing the instruction was Smith v. Acme Paving Co., 16 Wash.App. 389, 558 P.2d 811 (1976) and Cummins v. Rachner, 257 N.W.2d 808 (Minn.1977). On appeal, it cites Argus v. Peter Kiewit Sons' Co., 49 Wash.2d 853, 307 P.2d 261 (1957) as additional authority. Degerstrom argues that all three cases involved distinguishable facts: a contractor engaged in road construction who created a hazard in or on the physical roadway being constructed. We agree; the duty of the contractor in each case was identified as being to maintain the streets in a reasonably safe condition and to guard drivers from reasonably anticipated hazards. Argus, 49 Wash.2d at 856, 307 P.2d 261;Smith, 16 Wash.App. at 393, 558 P.2d 811;Cummins, 257 N.W.2d at 813. As stated in Smith, 16 Wash.App. at 393–94, 558 P.2d 811, this duty “is particularly applicable where the conditions complained of arise out of the actual construction, repair, and maintenance of the roadway.” Degerstrom is not accused of creating a hazard, but of failing to safeguard against it.
¶ 53 Nonetheless, other evidence presented at trial supported a broader duty owed by Degerstrom to the public. Degerstrom's agreement in its accident prevention program to reasonably ensure that parked, unattended vehicles were chocked on inclines apparently was intended to protect the public as well as employees from hazardous runaway vehicles. The reference in WISHA regulations to vehicles parked at night, after work hours, proves this intent. WAC 296–155–605(1)(a). Degerstrom also agreed to safeguard the public from its operations and to provide adequate warnings of hazards for workers and the public.
¶ 54 This scope of Degerstrom's duty was reflected in other instructions given by the trial court, however, from which the estate could argue that Degerstrom breached a duty of care to the public by failing to require Sharp–Line to use chocks on the auger trucks. The trial court's instructions informed the jury that negligence includes “the failure to do some act that a reasonably careful person would have done under the same or similar circumstances,” CP at 3179, and that a violation of a WISHA regulation is evidence of negligence. The estate elicited testimony from several witnesses that it would have been safer to use chocks under the circumstances of the accident, and argued that the failure to use chocks was both unreasonable and a violation of WISHA safety regulations, creating an imminent threat to the public.
¶ 55 The instructions given enabled the estate to argue a negligent breach of duty to the public. The trial court's refusal to give a more specific instruction was therefore not reversible error.
Dismissal of Ms. Millican's individual claim.
¶ 56 Ms. Millican sued not only as the personal representative of Mr. Lafayette's estate but also individually, as a statutory beneficiary. RCW 4.20.020 identifies a first and second tier of beneficiaries who may recover damages for wrongful death. Armantrout v. Carlson, 166 Wash.2d 931, 935, 214 P.3d 914 (2009). The first tier includes a decedent's wife, husband, or registered domestic partner, and any children or stepchildren. If there are no first tier beneficiaries, as in the case of 19–year–old Mr. Lafayette, a wrongful death suit may be maintained for the benefit of second tier beneficiaries, including parents or siblings “who may be dependent upon the deceased person for support.” RCW 4.20.020; Armantrout, 166 Wash.2d at 935, 214 P.3d 914.
¶ 57 The statute does not define “dependent” or “support.” It has long been construed to require that second tier beneficiaries prove “ ‘substantial dependency’ ” and a recognition by the child of the parent's “ ‘necessitous want.’ ” Id. at 936, 214 P.3d 914 (quoting Bortle v. N. Pac. Ry., 60 Wash. 552, 554, 111 P. 788 (1910)). The substantial dependency must be based on the situation existing at the time of the decedent's death, not on a promise of future contributions. Id. Emotional dependency alone will not qualify parents for second-tier beneficiary status. Id. In Armantrout, the Washington Supreme Court held that the trier of fact may consider services provided by the deceased that had a monetary value for which the parents would not otherwise have been able to pay. It may not, however, consider “everyday services a child would routinely provide.” Id. at 940, 214 P.3d 914.
¶ 58 The defendants moved for summary judgment dismissing Ms. Millican's individual claim, arguing that there was no genuine issue that she was dependent on her son for support. It was undisputed that Mr. Lafayette had moved out of his mother's home four months before the accident and had been living independently. The defendants submitted Ms. Millican's deposition in support of their motion, summarizing material concessions made in the deposition as follows;
Mrs. Millican does not have debilitating health problems requiring necessary care and assistance from her family members. She had a pulmonary embolism nearly twenty years ago and now has hypertension, but she tries not to limit herself in activities. Mr. Lafayette did not offer any medical care to his mother. In fact, Ms. Millican is able to work at two jobs, the Riverside school district administration office and a foster home for at-risk youth. Currently, she is working about 35 hours per week at the school district and 35–40 hours per week at the foster home. Mr. Lafayette did not give his mother any [monetary] support.
CP at 645–46 (footnotes omitted).
¶ 59 In response, Ms. Millican submitted the declaration of her primary care physician that she has class IV pulmonary hypertension that causes shortness of breath with exertion and significantly limits her ability to do chores involving aerobic activity. She also submitted evidence that her son began working construction at age 12 and had become proficient at construction, household repair, and landscaping. She testified that during his teenage years he had regularly handled household repairs and maintenance and had undertaken a number of improvements to her home and the 10–acre parcel on which it is located. She argued that her physical limitations prevented her, personally, from performing the maintenance required on her home and property.
¶ 60 She testified that her son planned to continue providing these and other maintenance, repair, and home improvement services in the future. In support of a motion for reconsideration she submitted a declaration stating conclusorily that she and her husband were financially unable to pay someone else to perform the tasks necessary for the maintenance and upkeep of their home. Because she and her husband could not keep up the property as well as Mr. Lafayette had, and it did not make sense for her to refinance a home that was losing value, she testified that she lost her home in foreclosure.
¶ 61 Our review of an order of summary judgment is de novo, considering the facts and reasonable inferences in the light most favorable to the nonmoving party. Beggs v. Dep't of Soc. & Health Servs., 171 Wash.2d 69, 75, 247 P.3d 421 (2011); Right–Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wash.2d 370, 381, 46 P.3d 789 (2002). Summary judgment is proper if the pleadings and accompanying documentary evidence show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Phillips v. King County, 136 Wash.2d 946, 956, 968 P.2d 871 (1998); CR 56(c).
¶ 62 Viewing the evidence in the light most favorable to Ms. Millican, the services Mr. Lafayette provided are different from the type of support services discussed in Armantrout that make a parent “dependent ... for support” within the meaning of RCW 4.20.020. In that case, the 18–year–old decedent had lived with her mother, who had diabetes and was blind. She acted as her mother's driver and administered her mother's glucose tests and insulin injections. The decedent had contributed her monthly disability benefit checks to the household. Armantrout held that these services were the kind for which an economic value could be determined. At the same time, it endorsed the trial court's instruction to the jury that the financial dependence required excluded the everyday services a child would routinely provide. 166 Wash.2d at 939, 214 P.3d 914.
¶ 63 Ms. Millican's evidence responding to the summary judgment motion failed to demonstrate a genuine issue of material fact. Mr. Lafayette provided no medical care or monetary support to his mother, who was able to get around on her own and hold more than full-time employment. Some services provided by Mr. Lafayette, such as snow plowing and yard maintenance, were in the nature of everyday services a child would routinely provide. Extensive future home and landscaping improvements accounted for a large part of her damage claim but they were both hoped—for contributions and not the degree of dependency contemplated by the statute, which “must be real and substantial and will not arise from occasional gifts or gratuities.” Beggs, 171 Wash.2d at 82 n. 12, 247 P.3d 421. Finally, with respect to any assistance she had been receiving from Mr. Lafayette that Ms. Millican might legitimately argue was nonroutine and responded to a real and substantial need, she made no showing of financial dependence on that assistance.
Summarized at CP 782–87, Ms. Millican's damage claim included the value of the following improvements to her home that she had hoped Mr. Lafayette would undertake in the future: construction of a new two-car garage with studio apartment; a two-story addition to the home; a kitchen remodel; and new lawn, sprinkler, and drip irrigation systems.
¶ 64 The trial court properly granted the defendants' motion for partial summary judgment dismissing Ms. Millican's individual claim.
¶ 65 We affirm the trial court's dismissal of Ms. Millican's individual claim, reverse the dismissal of the estate's claim, and remand for a new trial consistent with this opinion.