Filed Washington State Court of Appeals Division Two
November 9, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II AUSTIN K. FITE, individually, No. 54325-7-II
Respondent,
v.
LEE R. MUDD and “JANE DOE” MUDD, PUBLISHED OPINION individually and husband and wife, and the marital community comprised thereof; and CITY OF PUYALLUP, a Municipal Corporation under the laws of the State of Washington,
Appellant.
VELJACIC, J. — Lee Mudd struck Austin Fite with his truck while Fite was riding his
skateboard through a crosswalk. A jury awarded Fite $6.5 million in damages and found Mudd
33 percent at fault and the City of Puyallup (Puyallup) 67 percent at fault. The jury assigned no
liability to Fite. Puyallup argues on appeal that the trial court erred in striking its intoxication
affirmative defense on summary judgment, and in separately excluding evidence of intoxication.
Puyallup also argues that the court erred by submitting an instruction to the jury that
favored Fite’s theory of the case by instructing the jury, with instruction 28, to consider the “totality
of the circumstances” in determining whether the crosswalk was safe, and by stating that a
crosswalk may be unsafe even when there is no violation of statutes, regulations, or guidelines. 54325-7-II
Puyallup further argues that the trial court erred in granting summary judgment regarding
Fite’s duty of care, erred in admitting two police reports, erred in denying Puyallup the opportunity
to impeach a witness, and erred in excluding evidence of Fite’s speed and events of the accident.
The trial court erred by granting Fite’s motion for summary judgment prohibiting Puyallup
from presenting the intoxication affirmative defense under RCW 5.40.060 because the evidence
considered by the court at summary judgment created genuine issues of material fact preventing
summary judgment. It also erred by submitting jury instruction 28 because the instruction included
“totality of the circumstances” language but failed to explain what circumstances the jury should
consider except for a sentence that improperly emphasized Fite’s theory of the case. Lastly, the
trial court erred in admitting hearsay police reports under the business records exception and by
denying Puyallup the opportunity to impeach the only eyewitness to Fite’s behavior immediately
preceding the accident. Accordingly, we reverse and remand for a new trial.
FACTS
Mudd struck Fite while Fite traveled on a skateboard through a crosswalk. Fite was taken
to the hospital and treated for his injuries. The hospital performed a screening urinalysis on Fite.
Such test was not conducted to determine Fite’s intoxication at the time of the accident but rather
to assist in his medical treatment. The screening revealed Fite’s urine contained
tetrahydrocannabinol (THC). The screening used was not for the purpose of determining blood-
THC concentration, and therefore lacked that information. Fite sued Mudd and Puyallup.
An eyewitness, Kelly Boutte, provided an initial sworn statement, stating that “[a]t no time
did I see [Fite] stop. At no time did I see him look left. At no time did I see him look right.”
Clerk’s Papers (CP) at 1153. She later amended her statement to read, “I do not recall if he looked
r[igh]t or left one way or another.” CP at 1294.
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Fite moved for partial summary judgment. In Puyallup’s response to Fite’s motion for
summary judgment, it argued Fite’s intoxication was evidence of his comparative fault. Puyallup
relied on the urine drug screening and a later statement Fite made to his doctor that he was “high
on [c]annabis while riding his skateboard” on the day of the accident. CP at 908. Fite replied that
Puyallup’s intoxication defense was factually unsupported and that Fite was fault free. The court
granted Fite’s motion for summary judgment dismissing the intoxication affirmative defense.
While Fite’s comment to his doctor was part of the evidence provided by Puyallup in its
response to Fite’s motion, the court did not address the comment. In its summary judgment order,
the court ruled that Puyallup was barred from presenting an intoxication defense under RCW
5.40.060. However, the court denied Fite’s motion to establish that he had no comparative fault,
and clarified Fite’s legal duty, ruling “Fite was not specifically required to look right and look left
before entering the crosswalk, only to look for approaching vehicles.” CP at 1303.
Puyallup moved for reconsideration on its intoxication defense based in part on new expert
witness testimony, which it submitted for the first time on reconsideration. The court again
concluded that Puyallup had not provided evidence establishing when Fite had ingested marijuana
or that Fite was experiencing any symptoms of THC intoxication at the time of the accident as
required by RCW 5.40.060.
Fite later requested, and the court granted, a motion in limine to exclude all evidence of
Fite’s drug and alcohol use (that apparently included his statement to his doctor). Puyallup also
filed a motion in limine seeking to exclude two police reports—exhibits 48A and 48B—detailing
two other accidents that had occurred in the crosswalk at issue. The court granted Puyallup’s
motion.
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However, during Fite’s cross-examination of a traffic detective with experience
investigating pedestrian accidents, he asked whether the detective had studied the excluded police
reports, asking “Have you ever had occasion to study all of the accident reports in the intersection
of 5th and 31st that we’ve got here?” 14 Report of Proceedings (RP) (Nov. 20, 2019) at 2630.
Fite questioned the detective further, asking:
Q. You don’t know whether or not there’d been pedestrian accidents and how many there have been? A. I can say that there have not been many and the reason I can say that is because I’m consulted very often on any kind of pedestrian accident because of my expertise. Q. The true answer is, you don't know; is that right? A. I cannot give you a number, absolutely. Q. But you know there have been some? A. I know there’s been one. I don’t know of the other ones. Q. And you know that there have been some pedestrian accidents in that particular crosswalk, don’t you? A. I know of this one, sir. Q. This one in this case? A. This case. Q. You don't know about any others? A. None that come to mind, no.
RP (Nov. 20, 2019) at 2630-31. To counter this testimony, Fite offered exhibits 48A and 48B as
business records. The court admitted the exhibits as business records over Puyallup’s hearsay
objection.
Exhibit 48A contained an investigation into a collision between two cars while stopped at
a crosswalk. The report includes a determination of fault based on the officer’s interviews with
the drivers involved in the accident and a witness. No pedestrians were injured in the accident.
Exhibit 48B described witness testimony that a bicyclist entered a roadway without looking,
swerved in front of a car, and was hit. Fite relied on the incongruities between the traffic officer’s
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testimony and the police reports in his closing arguments. He claimed that Puyallup attempted to
hide the other accidents and that the traffic officer had tried to mislead the jury.
At trial, Puyallup requested the opportunity to impeach the eyewitness, Boutte, with her
prior statement. The trial court prohibited Puyallup from impeaching Boutte, ruling that Boutte’s
prior statement conflicted with its summary judgment order that Fite did not have a duty to look
left or right. Boutte testified at trial, stating “I did not see [Fite] stop before crossing the road.” 11
RP at 1874.
During conferencing on the jury instructions, Fite requested an instruction that included
that the jury should consider the “totality of the circumstances” when determining whether the
crosswalk was safe. 17 RP at 3185. That language came from Xiao Ping Chen v. City of Seattle,
153 Wn. App. 890, 899-900, 223 P.3d 1230 (2009). Puyallup objected to that language and
asserted that WPI 140.011 alone was the correct jury instruction. Instead, the court crafted
instruction 28, which read:
Whether a roadway or crosswalk is reasonably safe for ordinary travel must be determined based on the “totality of the circumstances.” A roadway or crosswalk can be unsafe for ordinary travel even when there is no violation of statutes, regulations or guidelines concerning roadways and crosswalks.
CP at 3190.
1 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 140.01, at 829 (2019) (WPI).
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The jury awarded Fite approximately $6.5 million in damages and found Mudd was 33
percent at fault and Puyallup was 67 percent at fault for the accident. Puyallup appeals the liability
verdict but not the damage award.2
ANALYSIS
I. INTOXICATION DEFENSE UNDER RCW 5.40.060
Puyallup argues that the trial court erred when it prohibited Puyallup from presenting a
defense under RCW 5.40.060 by excluding evidence of Fite’s intoxication. Fite argues that
Puyallup failed to produce evidence that would satisfy RCW 5.40.060. We conclude that the trial
court erred in ruling as a matter of law that Puyallup could not present the affirmative defense of
evidence of Fite’s intoxication.
A. Standard of Review
We review a superior court’s order granting summary judgment de novo, and perform the
same inquiry as the superior court. RockRock Grp, LLC v. Value Logic, LLC, 194 Wn. App. 904,
913, 380 P.3d 545 (2016). We consider the facts and the inferences from the facts in a light most
favorable to the nonmoving party. Bremerton Pub. Safety Ass'n v. City of Bremerton, 104 Wn.
App. 226, 230, 15 P.3d 688 (2001). The court may grant summary judgment if the pleadings,
affidavits, and depositions establish that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. RockRock Grp, 194 Wn. App. at 913; CR
56(c).
2 Two amici briefs and one response were also submitted. Both amici put forward arguments substantially similar to Puyallup’s. The original arguments the amici raise were not addressed at trial, and we do not consider issues raised first and only by amici. See Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 631, 71 P.3d 644 (2003).
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B. Legal Principles
RCW 5.40.060 provides a complete defense for liability if a defendant can show the
plaintiff’s intoxication was the proximate cause of the injury and the plaintiff was more than 50
percent at fault. Peralta v. State, 187 Wn.2d 888, 893-94, 389 P.3d 596 (2017). RCW 5.40.060(1)
states in relevant part:
[I]t is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault.
“To determine if an individual was ‘under the influence of intoxicating liquor,’ the
intoxication defense statute incorporates by reference the definition of ‘under the influence of
intoxicating liquor or drugs’ in RCW 46.61.502, the [driving while under the influence] DUI
statute.” Peralta, 187 Wn.2d at 897; RCW 5.40.060(1). RCW 46.61.502 states in relevant part:
(1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state: .... (c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug.
To satisfy RCW 46.61.502(c), a party must prove beyond a reasonable doubt that at the
time of the accident, the person was under the influence of marijuana so as to impair his ability to
operate to an appreciable degree. Peralta, 187 Wn.2d at 898. A party’s admission of intoxication
may satisfy RCW 46.61.502(c). Id. at 903.
In Peralta, a driver admitted to being “under the influence of intoxicating liquors,” and the
trial court determined this established intoxication under RCW 46.61.502. Id. at 893. On appeal,
the court held that the trial court was reasonable in concluding such admission was conclusive
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evidence of intoxication under RCW 46.61.502(c) and that the driver was bound by such
admission. Id. at 903-04.
In a recent case, the Washington Supreme Court ruled that a toxicology report alone is
insufficient to prove someone was impaired by intoxicating liquors, because the causation
component of the statute examines a person’s behavior not simply whether they were intoxicated.
Gerlach v. Cove Apt., LLC, 196 Wn.2d 111, 125-26, 471 P.3d 181 (2020). The court held that
“without other evidence or testimony that could connect Gerlach’s [blood alcohol concentration
(BAC)] results to behavior that caused her [injury], the BAC results were not relevant to whether
her intoxication was a proximate cause of her injuries or to her degree of fault.” Id. at 126.
C. Analysis
Puyallup argues that Fite’s admission to his doctor that he was “high on [c]annabis” during
the accident and his urinalysis result that was positive for THC are sufficient evidence to show he
was intoxicated under RCW 46.61.502. CP at 908.
Fite argues that Gerlach supports the trial court’s prohibition of the affirmative defense.
However, Gerlach’s holding is narrower than a blanket exclusion of all urinalyses or toxicology
reports showing the presence of intoxicants, so its holding is not dispositive of the summary
judgment issue for the parties here. Instead, Gerlach only prohibits Puyallup from relying solely
on such a report to support the affirmative defense under RCW 5.40.060 because a toxicology
report cannot prove a person behaved in an impaired fashion, i.e. that they were affected to an
appreciable degree, as required under RCW 46.61.502. See Gerlach, 196 Wn.2d at 126. Under
the defense, proving intoxication’s impact on behavior is necessary. So, the urine screening here
is still available for our de novo consideration of whether there was an issue of fact as to Fite’s
intoxication. The screening was available to the trial court for the same reason.
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However, even without the urinalysis, Fite’s admission that he was high during the accident
does potentially satisfy RCW 46.61.502(c) per Peralta. See 187 Wn.2d at 903-04. The trial court
did not address why Fite’s admission to his doctor could not satisfy RCW 46.61.502(c), only
suggesting that the comment could be prejudicial. But prejudice is not the question on summary
judgment. Instead, the question was whether, in the light most favorable to Puyallup, there was
some evidence to create an issue of fact for the jury relating to the affirmative defense. And here
there was.
A party’s admission of intoxication may satisfy RCW 46.61.502(c). Peralta, 187 Wn.2d
at 903-04. While the trial court stated that there was no other evidence of Fite’s intoxication,
witness testimony suggested that he failed to stop before entering the crosswalk, and he also failed
to make any move to avoid Mudd’s vehicle. When coupled with the positive urine screening and
his admission, and when viewed in the light most favorable to Puyallup, Fite’s behavior could have
contributed to the accident; the behavior could have resulted from impairment due to being
appreciably affected by marijuana; and a reasonable jury could have concluded accordingly. The
evidence creates a genuine issue of material fact that Puyallup should have had the opportunity to
present to the jury. The trial court erred by granting Fite’s motion for partial summary judgment
excluding the affirmative defense.
II. JURY INSTRUCTION 28
Puyallup argues that the first sentence of jury instruction 28 misstates the law of municipal
fault and that the second sentence improperly emphasized Fite’s theory of the case. We agree that
the trial court abused its discretion by submitting instruction 28 to the jury because the instruction
improperly emphasized Fite’s theory of the case by failing to include a sentence in the instruction
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stating that compliance with statutes, regulations, and guidelines may be evidence that the
crosswalk was safe.
Whether to give a specific instruction is within the discretion of the trial court, and we
review such decision for an abuse of discretion. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743,
767, 389 P.3d 517 (2017). A trial court abuses its discretion when its ruling is manifestly
unreasonable or based on untenable grounds. Bengtsson v. Sunnyworld Int’l, Inc., 14 Wn. App.
2d 91, 99, 469 P.3d 339 (2020). We review de novo whether a jury instruction correctly states the
law. Intuitive Surgical, Inc., 187 Wn.2d at 767.
B. The trial court did not err by crafting a jury instruction instead of using the pattern instruction
Jury instructions must allow counsel to argue their theory of the case, may not be
misleading, and must properly inform the trier of fact of the applicable law. Keller v. City of
Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). A misleading instruction does not require
reversal unless the appealing party can prove the instruction was prejudicial. Id.
Where substantial evidence supports a party’s theory of the case, trial courts are required
to instruct the jury on the theory. Intuitive Surgical, Inc., 187 Wn.2d at 767. “To determine
whether to give an instruction, the trial judge ‘must merely decide whether the record contains the
kind of facts to which the doctrine applies.’” Id. at 767 (quoting Kappelman v. Lutz, 167 Wn.2d
1, 6, 217 P.3d 286 (2009)).
Where an instruction focuses the jury’s inquiry on one theory of the case over another, the
trial court abuses its discretion. Cornejo v. State, 57 Wn. App. 314, 320-21, 788 P.2d 554 (1990).
In Cornejo, the repetition of one party’s theory of the case in jury instructions emphasized that
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theory over that of the opposing party. Id. On appeal, the court determined this emphasis led to
the trial court favoring one theory over another, which was an abuse of discretion. Id.
A trial court deprives a party of a fair trial when it issues a jury instruction that emphasizes
one party “to the explicit detriment of the other party.” Brown v. Dahl, 41 Wn. App. 565, 579,
705 P.2d 781 (1985).
Puyallup first argues that jury instruction 28 was improper because it was crafted from case
law and WPI 140.01 correctly states the law of municipal fault. It cites to Swope v. Sundgren, 73
Wn.2d 747, 750, 440 P.2d 494 (1968), and Turner v. City of Tacoma, 72 Wn.2d 1029, 1034, 435
P.2d 927 (1967), for the proposition that trial courts should not craft jury instructions from case
law. However, neither case holds a trial court is prohibited from doing so, but merely that opinions
are not written with the intent that they will serve as the basis for jury instructions. See Sundgren,
73 Wn.2d at 750; Turner, 72 Wn.2d at 1034. Accordingly, Puyallup’s argument fails.
C. Municipal Fault, Generally
Under common law, municipalities are held to the general duty of care of a reasonable
person under the circumstances. Chen, 153 Wn. App. at 899-900. This duty requires
municipalities to maintain roadways that are reasonably safe for travel. Id. at 900. A
municipality’s duty extends beyond merely complying with applicable laws and regulations.
Wuthrich v. King County, 185 Wn.2d 19, 26, 366 P.3d 926 (2016). “Whether the roadway was
reasonably safe and whether it was reasonable for [a municipality] to take (or not take) any
corrective actions are questions of fact that must be answered in light of the totality of the
circumstances.” Id. at 27; see also Chen, 153 Wn. App. at 894 (“A trier of fact may conclude that
a municipality breached its duty of care based on the totality of the circumstances established by
the evidence.”).
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Statutes and regulations can help define a municipality’s duty of care. Owen v. Burlington
N. & Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). Specifically, the Federal
Highway Administration’s Manual on Uniform Traffic Control Devices (MUTCD) “provides at
least some evidence of the appropriate duty.” Id. Therefore, compliance with applicable statutes
and regulations may be used to show a municipality met its duty of care. The Washington State
Department of Transportation (WSDOT) must implement the Federal Highway Administration’s
MUTCD. RCW 47.36.030(1); WAC 468-95-010, et seq. Municipalities must maintain roadways
and comply with roadway design statutes. WAC 136-11-040; RCW 36.86.080.
Similarly, under RCW 5.40.050, a municipality’s failure to comply with a duty imposed
by statute, ordinance, or administrative rule may be considered by the trier of fact as evidence of
negligence. See RCW 5.40.050. RCW 5.40.050 states in relevant part: “A breach of a duty
imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but
may be considered by the trier of fact as evidence of negligence.”
In Keller, 146 Wn.2d at 252-54, the Washington Supreme Court crafted a jury instruction
on a municipality’s duty for road design and maintenance. Such instruction became WPI 140.01,
and states:
The [county] [city] [town] [state] has a duty to exercise ordinary care in the [design] [construction] [maintenance] [repair] of its public [roads] [streets] [sidewalks] [bridges] to keep them in a reasonably safe condition for ordinary travel.
D. Analysis: Instruction 28 Improperly Emphasized Fite’s Theory
Jury instruction 28 provided:
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Whether a roadway or crosswalk is reasonably safe for ordinary travel must be determined based on the “totality of the circumstances.” A roadway or crosswalk can be unsafe for ordinary travel even when there is no violation of statutes, regulations or guidelines concerning roadways and crosswalks.
The trial court improperly emphasized Fite’s theory by including the second sentence in
instruction 28 without also including language stating that compliance with statutes, regulations,
or guidelines can be evidence the crosswalk was safe.
The common law of municipal fault states that a municipality can violate its duty of care
even when it complies with statutes and regulations. Wuthrich, 185 Wn.2d at 26. However, the
second sentence of instruction 28, while a correct statement of the law, improperly focuses the jury
on Fite’s theory when evaluating Puyallup’s fault. This theory—that a crosswalk may be unsafe
even if it complies with statutes and regulations—exclusively supports Fite’s theory of the case.
The instruction fails to include additional language on evidence the jury may consider that supports
Puyallup’s theory of the case—namely that compliance with statutes and regulations is evidence
it met its duty of care.
Cornejo is instructive here. In Cornejo, the trial court abused its discretion when it
submitted instructions to the jury that overemphasized one party’s theory. 57 Wn. App. at 320-
21. Here, the emphasis favored Fite and prevented Puyallup from arguing that it met its duty of
care because it complied with applicable statutes and regulations. Because the second sentence of
jury instruction 28 emphasized Fite’s theory of the case and improperly limited Puyallup’s, the
trial court abused its discretion and denied Puyallup a fair trial.
Puyallup next argues that the “totality of the circumstances” language in instruction 28 is
improper because the circumstances in Chen are absent here. According to Puyallup, that court
relied on evidence of accidents, deaths, complaints, the existence of a safety refuge island, the fact
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that there were traffic signals at other similar intersections, and the City’s admission that similar
crosswalks were dangerous. However, “totality of the circumstances” is not limited to those
circumstances present in Chen. The case law clearly holds, without limitation, that finders of fact
should evaluate whether a municipality’s road maintenance and design satisfied its legal duty
under “totality of the circumstances.” See Wuthrich, 185 Wn.2d at 27; Chen, 153 Wn. App. at
894.
Such holdings imply that the finder of fact should examine those circumstances relevant to
the case at bar to determine whether a municipality has satisfied its duty of care. So, the term
“totality of the circumstances” is properly a part of the standard by which a municipality’s duty is
measured, but it is not the whole of the standard.
We address the remaining issues in this case because they are likely to be repeated at trial,
however, they do not serve as independent bases for reversal.
III. ADMITTED POLICE REPORTS
Puyallup argues that the trial court abused its discretion when it admitted police reports
under the business records exception to the hearsay prohibition. We agree with Puyallup.
While Puyallup secured exclusion of the reports via the court’s order after motions in
limine, Fite argues that Puyallup’s witness opened the door to the admittance of the police reports
when he testified that he did not know of any other accidents in the crosswalk where Fite was
injured.
We review evidentiary rulings for an abuse of discretion. Peralta, 187 Wn.2d at 894. A
trial court abuses its discretion when its ruling is manifestly unreasonable or based on untenable
grounds. Bengtsson, 14 Wn. App. 2d at 99.
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The business records exception to the hearsay prohibition states,
A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
RCW 5.45.020.
The business records exception generally applies to objective records of regularly recorded
activities. In re Detention of Coe, 175 Wn.2d 482, 505, 286 P.3d 29 (2012). The exception does
not apply to those records created through skill, judgment, or discretion. Id. Police reports do not
satisfy the exception because they require the officer creating the report to produce a subjective
summary of the officer’s investigation. Id.
When a party opens the door to a subject, the opposing party may request admittance of
previously excluded evidence on that subject during cross or redirect examination. State v.
Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969). A recent case from Division Three explains
that the open door doctrine applies to evidence excluded due to policy or prejudice not hearsay.
State v. Rushworth, 12 Wn. App. 2d 466, 473, 458 P.3d 1192 (2020). The doctrine “permits a
court to admit evidence on a topic that would normally be excluded for reasons of policy or undue
prejudice when raised by the party who would ordinarily benefit from exclusion.” Id. Therefore,
a party may not open the door through strategic questioning of a witness and then seek to admit
excluded evidence based on its own questioning.
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We conclude that the trial court abused its discretion by admitting the police reports under
the business records exception to hearsay. Exhibits 48A and 48B are two police reports detailing
accidents that occurred at the same intersection where Fite was injured. Notably, neither accident
involved a pedestrian—exhibit 48A describes a car that was rear ended while stopped at a
crosswalk, and exhibit 48B describes a collision between a car and bicycle that occurred when the
bicyclist entered the street without looking and swerved in front of a car.
Both reports detail eyewitness testimony and the conclusions of the responding officer.
Because police reports that include eyewitness testimony and the conclusions of officers are not
objective records, they are not admissible under the business records exception. See Coe, 175
Wn.2d at 505.
Further, Puyallup did not open the door to the admittance of the police reports because it
was Fite that elicited the statements about the prior accident reports. A party seeking to admit
hearsay evidence may not do so by laying a trap and forcing a witness to spring it. See Rushworth,
12 Wn. App. 2d at 473. While Fite argues Puyallup opened the door to admittance of the police
reports, Fite only cites to its own cross-examination of the detective. During Fite’s cross-
examination, he asked the detective about the police reports that had been previously excluded,
and when the witness denied knowledge of them, Fite sought to admit them. Such questioning
does not constitute opening the door. The trial court abused its discretion by admitting the reports
under the business records hearsay exception and the open door doctrine.
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IV. FITE’S COMPARATIVE FAULT
Puyallup argues that when the court denied Fite’s motion for summary judgment as to his
lack of comparative fault, the court erred by adding “Fite was not specifically required to look right
and look left before entering the crosswalk, only to look for approaching vehicles.” CP at 1303.
Such order prohibited Puyallup from arguing Fite was required to look left or right, but did not
prevent Puyallup from arguing Fite failed to look, generally. Puyallup argues that by eliminating
its opportunity to ask witnesses whether Fite looked left and right before entering the crosswalk,
it was denied an opportunity to establish Fite’s comparative fault.3 We disagree with Puyallup.
A. Legal Principles
Pedestrians may generally assume that drivers will recognize their right of way when
entering a crosswalk. Chen, 153 Wn. App. at 906. However, a pedestrian may not suddenly enter
a crosswalk without providing approaching vehicles time to stop. Id. None of the case law
identifies the particular actions pedestrians must take to satisfy this duty in any greater detail than
the above.
We conclude that the trial court’s statement on Fite’s duty was an accurate statement of the
law and did not deprive Puyallup the opportunity to argue he failed to look before entering the
crosswalk. The trial court ordered that Puyallup was prohibited from arguing Fite had a duty to
3 Puyallup also argues that the jury should have been able to evaluate whether Fite was negligent when he failed to avoid Mudd’s truck after entering the crosswalk. However, Puyallup fails to identify a ruling of the trial court that denied it the opportunity to argue this theory. We refuse to examine the issue. See RAP 10.3(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
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look left and right prior to entering the crosswalk. However, the trial court allowed Puyallup to
argue that Fite did not look prior to crossing.
Puyallup fails to cite relevant authority that establishes a pedestrian must look left and right
before entering a crosswalk. Case law shows pedestrians must look before entering a crosswalk.
See Chen, 153 Wn. App. at 906. More importantly, contrary to Puyallup’s assertion, it was not
denied an opportunity to question witnesses about whether they saw Fite look before entering the
crosswalk. Indeed, one witness clearly stated that “I did not see [Fite] stop before crossing the
road.” 11 RP at 1874.
The court prohibited Puyallup from arguing that Fite was at fault by specifically not
looking left and right before entering the crosswalk; the court did not err in doing so.
V. PRIOR INCONSISTENT STATEMENT
Puyallup argues that the trial court abused its discretion by excluding Boutte’s prior
statement, because it was admissible to impeach as a prior inconsistent statement. Fite argues that
Boutte’s prior statement was not inconsistent and that if excluding the statement was an error,
Puyallup was not prejudiced by the decision. We agree that the trial court abused its discretion by
denying Puyallup the opportunity to impeach Boutte because her prior statement was inconsistent.
Again, we review evidentiary rulings for an abuse of discretion. Peralta, 187 Wn.2d at
894. A trial court abuses its discretion when its ruling is manifestly unreasonable or based on
untenable grounds. Bengtsson, 14 Wn. App. 2d at 99.
18 54325-7-II
A party may impeach a witness using a prior inconsistent statement. State v. Garland, 169
Wn. App. 869, 885, 282 P.3d 1137 (2012). “‘Impeachment is evidence, usually prior inconsistent
statements, offered solely to show the witness is not truthful. Such evidence may not be used to
argue that the witness is guilty or even that the facts contained in the prior statement are
substantively true.’” Id. (quoting State v. Burke, 163 Wn.2d 204, 219, 181 P.3d 1 (2008) (citation
omitted)). ER 613(b) empowers a party to impeach a witness using a prior inconsistent statement,
but “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the
witness is afforded an opportunity to explain or deny the same and the opposite party is afforded
an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.”
Therefore, a party seeking to impeach a witness must directly confront the witness with their prior
statement and provide them an opportunity to respond. Id. Courts examine the whole impression
of a statement to determine if two statements are inconsistent, asking “‘Do the two expressions
appear to have been produced by inconsistent beliefs?’” State v. Newbern, 95 Wn. App. 277, 294,
975 P.2d 1041 (1999) (quoting Sterling v. Radford, 126 Wash. 372, 375, 218 P. 205 (1923)).
We conclude that the trial court abused its discretion by denying Puyallup the opportunity
to impeach Boutte. The trial court prohibited Puyallup from attempting to impeach Boutte using
her prior inconsistent statement because Boutte’s prior statement conflicted with its summary
judgment order that Fite did not have a duty to look left or right.4 At trial, Boutte testified that she
did not remember if Fite had looked before entering the crosswalk.
4 We address the arguments as presented by the parties. We do not address the propriety of a court making an evidentiary ruling at the time of ruling in a summary judgment order, as the court did here.
19 54325-7-II
The court did not articulate an evidentiary basis for excluding Boutte’s prior inconsistent
statement, and instead relied entirely on its summary judgment order that clarified Fite’s duty of
care. The trial court seemed to suggest that because Fite had no specific duty to look left and right,
any testimony that he failed to look left or right was inadmissible. However, legal duty aside,
Boutte should have been permitted to testify about her prior statement and respond to questions
regarding her credibility.
The prior inconsistent statement was admissible and the trial court erred by excluding it.
Indeed, Boutte’s two statements are inconsistent. Her initial statement, “At no time did I see him
stop. At no time did I see him look left. At no time did I see him look right,” CP at 1153,
affirmatively states she did not see Fite stop, or look, while her amended statement, “I do not recall
if he looked r[igh]t or left one way or another,” CP at 1294 (emphasis added), states she does not
remember whether he looked, and is silent on whether he stopped. The prior statement was
inconsistent with her trial testimony. Therefore, the statement was admissible for impeachment
purposes. See Newbern, 95 Wn. App. at 293-95. The court should have allowed the jury a full
opportunity to assess Boutte’s credibility by hearing the prior statement that was inconsistent with
her trial testimony. Denying Puyallup the opportunity to question Boutte’s credibility was
unreasonable and based on untenable grounds.
CONCLUSION
The trial court erred by granting Fite’s motion for summary judgment prohibiting Puyallup
from presenting evidence under RCW 5.40.060 because evidence of Fite’s intoxication created
material issues of fact preventing summary judgment. It also erred by submitting jury instruction
28 to the jury because it improperly emphasized Fite’s theory of the case, and prohibited Puyallup
from presenting its defense. Lastly, the trial court erred in admitting hearsay police reports under
20 54325-7-II
the business records exception and by denying Puyallup the opportunity to impeach the only
eyewitness to Fite’s behavior immediately preceding the accident. Accordingly, we reverse and
remand for a new trial.
Veljacic, J.
We concur:
Sutton, J.P.T.
Glasgow, A.C.J.