Judith Cox And Charles Cox, Respondents/cross-appellants V. DSHS, Appellant/cross-respondent
This text of Judith Cox And Charles Cox, Respondents/cross-appellants V. DSHS, Appellant/cross-respondent (Judith Cox And Charles Cox, Respondents/cross-appellants V. DSHS, Appellant/cross-respondent) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Filed Washington State Court of Appeals Division Two
April 18, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II JUDITH COX and CHARLES COX No. 55438-1-II individually and as Personal Representatives of the Estates of C.J.P. and B.T.P.,
Respondents/Cross-Appellants,
v.
STATE OF WASHINGTON, DEPARTMENT UNPUBLISHED OPINION OF SOCIAL AND HEALTH SERVICES, FOREST JACOBSON, ROCKY STEPHENSON, JANE WILSON, and BILLIE REED-LYYSKI,
Appellants/Cross-Respondents.
VELJACIC, J. — Joshua Powell killed his two sons, C.J.P. and B.T.P., at his rental house in
Graham during a social worker supervised visit. The maternal grandparents, Judith and Charles
Cox, subsequently sued the Department of Social and Health Services (DSHS1) for negligently
failing to protect the boys from foreseeable harm.
DSHS filed dependency petitions on behalf of C.J.P. and B.T.P., and the dependency court
placed the boys in the custody and control of DSHS while allowing Powell supervised visits.
DSHS contracted with Foster Care Resources Network (FCRN) to supervise the visits, and FCRN
1 The agency at issue here is the Department of Children, Youth, and Family (DCYF), formerly Child Protective Services (CPS). DCYF is a subagency of the Department of Social and Health Services (DSHS). Various references throughout the record alternatively refer to defendants as DCYF and DSHS. For consistency, we will refer only to DSHS. 55438-1-II
employee Elizabeth Griffin-Hall was selected as the supervisor. DSHS social workers later moved
the location of the supervised visits to Powell’s rental home.
After C.J.P. and B.T.P. ran inside at the beginning of a visit, Powell slammed the door on
Griffin-Hall and locked the door. He then struck the boys multiple times with a hatchet, poured
gasoline on them, and ignited a fire. C.J.P. and B.T.P., as well as Powell, died when the house
exploded.
After a lengthy trial, the jury found DSHS liable for the boys’ deaths and awarded $57.5
million in noneconomic damages to the estates of each boy (later reduced to a total of $98,509,000
after segregation of damages from Powell’s intentional conduct). DSHS moved for a remittitur of
the jury’s damage award and, in the alternative, a new trial. The trial court granted DSHS’s motion
and reduced the award by two-thirds. The Coxes did not consent to the remittitur and opted for a
new trial instead. This appeal was filed before the new trial could be held.
This appeal focuses on two main aspects of the trial court proceedings: the liability verdict
and the damages award. As to the liability verdict, DSHS appeals the jury’s verdict and the trial
court’s January 6, 2021 new trial order. First, DSHS argues that the trial court erred in denying its
CR 50 motion for a directed verdict as to liability because the February 1, 2012 dependency court
orders were a superseding cause to the Coxes’ negligent visitation claims. Second, DSHS argues
that the trial court erred in giving jury instruction 6, which stated that FCRN and Griffin-Hall were
DSHS’s agents, and in denying multiple proposed jury instructions. Third, DSHS argues that the
trial court abused its discretion in excluding the testimony of the dependency court judge, the
testimony of Powell’s attorney during the dependency proceedings, the dependency hearing
transcripts, and the guardian ad litem’s (GAL) report because that evidence was relevant to its
2 55438-1-II
superseding cause defense. Fourth, DSHS argues that the trial court abused its discretion in
limiting its January 6, 2021 new trial order to damages only.
As to the damages award, the Coxes cross-appeal the trial court’s January 6, 2021 order.
This order granted a new trial on damages only based on the Coxes’ refusal to accept the remitted
damages award. The Coxes argue that we should reinstate the jury’s damages award in full
because (1) it was within the range of substantial evidence in the record and (2) nothing in the
record demonstrates that it was the result of passion or prejudice.
With respect to DSHS’s appeal of the liability verdict, we hold that the trial court did not
err in denying DSHS’s CR 50 motion because the dependency court orders were not a superseding
cause to the Coxes’ negligence claims. We also hold that the trial court did not err in giving jury
instruction 6 or abuse its discretion in denying DSHS’s proposed jury instructions. We further
hold that the trial court did not abuse its discretion in excluding DSHS’s proffered testimony
because it was irrelevant. Accordingly, we affirm the jury’s liability verdict.
However, we hold that the trial court’s remittitur order was improper because the jury’s
damages award was within the range of substantial evidence in the record and that nothing in the
record shows it was the result of passion and prejudice. Because we hold that remittitur was
improper, we do not address DSHS’s new trial arguments. Accordingly, we reverse the trial
court’s new trial order and reinstate the jury’s damages award in full.
FACTS
I. BACKGROUND—THE EVENTS LEADING UP TO POWELL’S KILLING OF C.J.P. AND B.T.P.
A. Susan Powell’s Disappearance and The “House of Horrors”
In December 2009, Susan Powell disappeared from the Utah home that she shared with her
husband, Powell, and their two boys, C.J.P. and B.T.P, when Powell took the family on a winter
3 55438-1-II
camping trip. Shortly after Susan’s disappearance, Powell moved to his father Stephen Powell’s
home in Puyallup with the two boys. At all times relevant here, Powell was the only person of
interest in Susan’s disappearance.
In August 2011, Washington authorities—acting on information from Utah authorities
investigating Susan’s disappearance—executed a search warrant on Stephen’s home. Law
enforcement encountered a “house of horrors.” 13 Report of Proceedings (RP) (Feb. 27, 2020) at
725. They found a range of disturbing materials throughout the house, such as pornography,
graphic sexually violent art work, gallon-size bags of toenail and hair clippings, a paper mâché
pterodactyl that was hanging from a noose, and a locked filing cabinet with used tampons, dirty
women’s underwear, and plastic female body parts used for “self-pleasure.” 13 RP (Feb. 27, 2020)
at 726. In the course of the search, law enforcement confiscated 15 computers that, when
examined, were found to contain depictions of minors engaged in sexually explicit conduct. Law
enforcement also discovered numerous videos, 8 millimeter tapes, and disk drives belonging to
Stephen which displayed acts of voyeurism on neighborhood girls and other women and girls.
On September 22, 2011, Stephen was arrested on charges of possession of depictions of
minors engaged in sexually explicit conduct and voyeurism. That same day, C.J.P. and B.T.P.
were placed into protective custody with DSHS. The Child Protective Services (CPS) intake form
for C.J.P. and B.T.P. identified Powell as a suspect in the “murder” of his wife, Susan. Ex. 5; 30
RP (July 14, 2020 AM) at 1875.
B. The Initial Dependency Proceedings and Supervised Visitations
On September 23, 2011, the Coxes filed a nonparental custody petition for C.J.P. and
B.T.P. in Pierce County Superior Court. Because the boys were under the protective custody of
4 55438-1-II
Free access — add to your briefcase to read the full text and ask questions with AI
Filed Washington State Court of Appeals Division Two
April 18, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II JUDITH COX and CHARLES COX No. 55438-1-II individually and as Personal Representatives of the Estates of C.J.P. and B.T.P.,
Respondents/Cross-Appellants,
v.
STATE OF WASHINGTON, DEPARTMENT UNPUBLISHED OPINION OF SOCIAL AND HEALTH SERVICES, FOREST JACOBSON, ROCKY STEPHENSON, JANE WILSON, and BILLIE REED-LYYSKI,
Appellants/Cross-Respondents.
VELJACIC, J. — Joshua Powell killed his two sons, C.J.P. and B.T.P., at his rental house in
Graham during a social worker supervised visit. The maternal grandparents, Judith and Charles
Cox, subsequently sued the Department of Social and Health Services (DSHS1) for negligently
failing to protect the boys from foreseeable harm.
DSHS filed dependency petitions on behalf of C.J.P. and B.T.P., and the dependency court
placed the boys in the custody and control of DSHS while allowing Powell supervised visits.
DSHS contracted with Foster Care Resources Network (FCRN) to supervise the visits, and FCRN
1 The agency at issue here is the Department of Children, Youth, and Family (DCYF), formerly Child Protective Services (CPS). DCYF is a subagency of the Department of Social and Health Services (DSHS). Various references throughout the record alternatively refer to defendants as DCYF and DSHS. For consistency, we will refer only to DSHS. 55438-1-II
employee Elizabeth Griffin-Hall was selected as the supervisor. DSHS social workers later moved
the location of the supervised visits to Powell’s rental home.
After C.J.P. and B.T.P. ran inside at the beginning of a visit, Powell slammed the door on
Griffin-Hall and locked the door. He then struck the boys multiple times with a hatchet, poured
gasoline on them, and ignited a fire. C.J.P. and B.T.P., as well as Powell, died when the house
exploded.
After a lengthy trial, the jury found DSHS liable for the boys’ deaths and awarded $57.5
million in noneconomic damages to the estates of each boy (later reduced to a total of $98,509,000
after segregation of damages from Powell’s intentional conduct). DSHS moved for a remittitur of
the jury’s damage award and, in the alternative, a new trial. The trial court granted DSHS’s motion
and reduced the award by two-thirds. The Coxes did not consent to the remittitur and opted for a
new trial instead. This appeal was filed before the new trial could be held.
This appeal focuses on two main aspects of the trial court proceedings: the liability verdict
and the damages award. As to the liability verdict, DSHS appeals the jury’s verdict and the trial
court’s January 6, 2021 new trial order. First, DSHS argues that the trial court erred in denying its
CR 50 motion for a directed verdict as to liability because the February 1, 2012 dependency court
orders were a superseding cause to the Coxes’ negligent visitation claims. Second, DSHS argues
that the trial court erred in giving jury instruction 6, which stated that FCRN and Griffin-Hall were
DSHS’s agents, and in denying multiple proposed jury instructions. Third, DSHS argues that the
trial court abused its discretion in excluding the testimony of the dependency court judge, the
testimony of Powell’s attorney during the dependency proceedings, the dependency hearing
transcripts, and the guardian ad litem’s (GAL) report because that evidence was relevant to its
2 55438-1-II
superseding cause defense. Fourth, DSHS argues that the trial court abused its discretion in
limiting its January 6, 2021 new trial order to damages only.
As to the damages award, the Coxes cross-appeal the trial court’s January 6, 2021 order.
This order granted a new trial on damages only based on the Coxes’ refusal to accept the remitted
damages award. The Coxes argue that we should reinstate the jury’s damages award in full
because (1) it was within the range of substantial evidence in the record and (2) nothing in the
record demonstrates that it was the result of passion or prejudice.
With respect to DSHS’s appeal of the liability verdict, we hold that the trial court did not
err in denying DSHS’s CR 50 motion because the dependency court orders were not a superseding
cause to the Coxes’ negligence claims. We also hold that the trial court did not err in giving jury
instruction 6 or abuse its discretion in denying DSHS’s proposed jury instructions. We further
hold that the trial court did not abuse its discretion in excluding DSHS’s proffered testimony
because it was irrelevant. Accordingly, we affirm the jury’s liability verdict.
However, we hold that the trial court’s remittitur order was improper because the jury’s
damages award was within the range of substantial evidence in the record and that nothing in the
record shows it was the result of passion and prejudice. Because we hold that remittitur was
improper, we do not address DSHS’s new trial arguments. Accordingly, we reverse the trial
court’s new trial order and reinstate the jury’s damages award in full.
FACTS
I. BACKGROUND—THE EVENTS LEADING UP TO POWELL’S KILLING OF C.J.P. AND B.T.P.
A. Susan Powell’s Disappearance and The “House of Horrors”
In December 2009, Susan Powell disappeared from the Utah home that she shared with her
husband, Powell, and their two boys, C.J.P. and B.T.P, when Powell took the family on a winter
3 55438-1-II
camping trip. Shortly after Susan’s disappearance, Powell moved to his father Stephen Powell’s
home in Puyallup with the two boys. At all times relevant here, Powell was the only person of
interest in Susan’s disappearance.
In August 2011, Washington authorities—acting on information from Utah authorities
investigating Susan’s disappearance—executed a search warrant on Stephen’s home. Law
enforcement encountered a “house of horrors.” 13 Report of Proceedings (RP) (Feb. 27, 2020) at
725. They found a range of disturbing materials throughout the house, such as pornography,
graphic sexually violent art work, gallon-size bags of toenail and hair clippings, a paper mâché
pterodactyl that was hanging from a noose, and a locked filing cabinet with used tampons, dirty
women’s underwear, and plastic female body parts used for “self-pleasure.” 13 RP (Feb. 27, 2020)
at 726. In the course of the search, law enforcement confiscated 15 computers that, when
examined, were found to contain depictions of minors engaged in sexually explicit conduct. Law
enforcement also discovered numerous videos, 8 millimeter tapes, and disk drives belonging to
Stephen which displayed acts of voyeurism on neighborhood girls and other women and girls.
On September 22, 2011, Stephen was arrested on charges of possession of depictions of
minors engaged in sexually explicit conduct and voyeurism. That same day, C.J.P. and B.T.P.
were placed into protective custody with DSHS. The Child Protective Services (CPS) intake form
for C.J.P. and B.T.P. identified Powell as a suspect in the “murder” of his wife, Susan. Ex. 5; 30
RP (July 14, 2020 AM) at 1875.
B. The Initial Dependency Proceedings and Supervised Visitations
On September 23, 2011, the Coxes filed a nonparental custody petition for C.J.P. and
B.T.P. in Pierce County Superior Court. Because the boys were under the protective custody of
4 55438-1-II
DSHS, a hearing was held to determine whether DSHS would file a dependency petition, which
would take precedence over the nonparental custody action.
On September 27, 2011, DSHS filed dependency petitions on behalf of C.J.P. and B.T.P.
A contested shelter care hearing was held the following day. At this hearing, DSHS informed the
court that the overriding concern for the dependency was the disappearance of Susan and that it
believed Powell was responsible for her disappearance. Of the multiple concerns addressed to
support the dependency, DSHS explained that “[e]verything else . . . would pale . . . in comparison
to [Susan’s disappearance].” 36 RP (July 23, 2020 PM) at 2565.
On September 28, the dependency court entered two orders. First, the court issued an order
of concurrent jurisdiction, which stayed the nonparental custody action pending the resolution of
the dependency action. Second, the court issued a shelter care order placing the two boys in the
temporary custody and supervision of DSHS, authorizing relative placement with the Coxes. The
shelter care order required DSHS to provide supervised visits between Powell and the two boys
on Sundays and prohibited Powell from either discussing pending litigation with the boys or
making disparaging remarks about the Coxes. The shelter care order did not direct where the
supervised visitations were to occur.
DSHS entered into a contract with FCRN to secure a supervisor for the court ordered visits.
Griffin-Hall, an employee of FCRN, was selected as the visitation supervisor. Her role was to
provide observation of the parent-child interactions and to report those observations to the assigned
social worker. The first supervised visit occurred at the FCRN facility on October 2.
On October 26, Powell agreed to the dependency of C.J.P. and B.T.P. Accordingly, the
court entered an order of dependency pursuant to RCW 13.34.030(6)(c) for both of the boys.
Specifically, the order placed C.J.P. and B.T.P. in the custody, control, and care of DSHS, again
5 55438-1-II
authorizing relative placement with the Coxes. The order also required Powell to undergo a
parenting assessment and psychological evaluation with Dr. James Manley. Visitations remained
supervised by a DSHS approved provider and the GAL on Sundays for a minimum of three hours,
but could be expanded upon agreement of the parties. This order did not direct where the
In November, DSHS social workers Forest Jacobson and Betsy Rodgers, and GAL Julio
Serrano, changed the location of the supervised visits from a DSHS approved facility to Powell’s
rental house in Graham. At all times relevant here, the social workers and GAL had the discretion
to change the visitation location. However, DSHS’s policies and practices in place at the time did
not permit supervised visits to occur in a noncustodial parent’s home.
C. DSHS Becomes Aware of Powell’s Increasing Risk of Harm to the Boys
Shortly after DSHS moved supervised visits to Powell’s rental house, more troubling
information about Powell began to develop. On November 15, Utah law enforcement notified
DSHS that they had found incestuous depictions of minors engaged in sexually explicit conduct
on Powell’s computer in Utah, which was seized pursuant to a search warrant in 2009. DSHS did
not receive these images until later on in the dependency because that evidence was sealed by the
Utah courts. A few days later, DSHS also learned that Powell had sexually abused his younger
sister; that Powell had molested an unrelated younger girl; that Powell had tortured and killed a
family pet and coerced his sister to touch the blood of the dead pet; and that Powell had attempted
to commit suicide in the past. DSHS also learned that Powell had once threatened his mother with
a knife, and that his mother and sister both expressed fear that he would kill them. This information
was obtained from Stephen’s divorce materials, which Charles Cox supplied to the DSHS social
worker.
6 55438-1-II
DSHS was also aware of the boys’ strange verbalizations pertaining to Susan’s
disappearance and instances alluding to violence. For example, in August 2010, C.J.P.’s daycare
provider reported overhearing him talk about killing a bear and hiding its remains by digging a
hole and placing rocks, trees, and bushes over the top of the corpse. C.J.P. was only 6 years old
when he made this comment. C.J.P.’s elementary school also reported disturbing statements that
he made pertaining to violence and hate, and other statements disparaging members of the Church
of Jesus Christ of Latter-Day Saints; the Coxes are members.
On November 6, 2011, DSHS learned about C.J.P.’s drawing that stated “Don’t play with
me,” which appeared to indicate his negative and violent thoughts. 8 RP (Feb. 19, 2020 AM) at
246. That same day, C.J.P.’s kindergarten teacher expressed their concern about the boys’ well-
being. DSHS also learned about a drawing that B.T.P. made portraying Susan in the trunk of a car
and his associated statement about “not finding Mommy [] until we go camping again.” 8 RP
(Feb. 19, 2020 AM) at 247.
The boys made other disturbing statements as the dependency progressed. For example,
on one occasion GAL Serrano spoke with B.T.P. about how things were going with the Coxes and
recalled him responding: “No one better mess with my dad because they’ll get killed.” 22 RP
(Mar. 16, 2020 AM) at 1617. And on November 29, during a supervised visit, the boys’ therapist
reported that one of the boys made a comment about Susan’s body being found in the desert.
Griffin-Hall (the FCRN visitation supervisor) reported that Powell became “visibly upset” with
this comment and could not regain his composure throughout the rest of the supervised visit. 8 RP
(Feb. 19, 2020 AM) at 249.
7 55438-1-II
D. DSHS’s Risk Assessment of Powell and Increased Supervised Visitations
Shortly after the September 2011 shelter care hearing, Rocky Stephenson, a CPS
investigator, was assigned to investigate Powell and provide a risk assessment for the boys’ safety.
On November 30, Stephenson closed his investigation concluding that the allegations of Powell’s
negligence and maltreatment were unfounded.
However, Stephenson closed the investigation before it was complete. Stephenson closed
the investigation before January 2012 when DSHS received the incestuous depictions of minors
engaged in sexually explicit conduct that were found on Powell’s computer in Utah. Additionally,
Stephenson concluded his investigation without interviewing collateral sources, such as Powell’s
other family members, the boys’ daycare providers, school personnel, or any of Powell’s alleged
employment sources. Stephenson also did not further investigate law enforcement’s concerns that
Powell posed a risk of killing the boys.
In December, DSHS social workers and GAL Serrano agreed to increase visitation from
once per week on Sundays to twice per week on Wednesdays and Sundays. At Powell’s request,
his friend and pastor, Timothy Atkins, became an additional visitation supervisor. However,
around the same time, Lori Narigi, the boys’ therapist, strongly recommended that the boys should
not visit Powell unless a trained DSHS staff member supervised the visits.
E. Photographs from Utah and Dr. Manley’s Psychological Evaluation of Powell
On December 9, Dr. Manley completed Powell’s psychological evaluation. Dr. Manley
diagnosed Powell with adjustment disorder with anxiety and narcissistic personality disorder. Dr.
Manley recommended continued supervised visits.
On January 12, 2012, DSHS learned that over 400 images of incestuous depictions of
minors engaged in sexually explicit conduct were found on Powell’s computer in Utah. Dr.
8 55438-1-II
Manley provided an addendum to his initial psychological evaluation based on the receipt of those
images. In the addendum, Dr. Manley expressed that the images gave rise to a “great concern”
about Powell’s past, especially given the information supplied by his father Stephen’s divorce
materials. 33 RP (July 20, 2020 AM) at 2196. Dr. Manley also opined that, given the gaps of
information about Powell, he did not believe that Powell could presently be a stable and
appropriate resource for the boys. Until Powell could overcome his “defensiveness and openly
discuss himself in all areas of his life,” he recommended against any change to visitation. 33 RP
(July 20, 2020 AM) at 2197. Dr. Manley then referred Powell for a psychosexual evaluation and a
polygraph.
F. The February 1, 2012 First Dependency Review Hearing and Resulting Orders
On February 1, the first dependency review hearing occurred. The court entered an order
denying Powell’s motion to place the boys with him. Instead, the court ordered that both of the
boys remain in the care and custody of DSHS, again authorizing relative placement with the Coxes.
The orders also required Powell to undergo a psychosexual evaluation and to follow all of Dr.
Manley’s recommendations.
Section 3.14 of the February 1 dependency orders also required DSHS to continue
providing supervised visitations for Powell: “Two visits each week, three hours each minimum,
supervised by DCFS or DCFS approved person. Visits may be expanded upon agreement of the
GAL and social worker.” Ex. 257 at 7; Ex. 258 at 7. The court did not order a specific visitation
location in either of the February 1 dependency orders.
The colloquy between the court and Powell’s attorney, (now) Judge Bassett, also
demonstrated that only frequency and duration of the visitations was discussed, not location:
9 55438-1-II
MR. BASSETT: Your Honor, we would ask for the Court’s ruling with respect to the visitation. We would ask the Court to order that it continue twice a week. MR. LONG: And Your Honor— THE COURT: That was my understanding of Dr. Manley’s amended recommendation, that it remain as it currently is. As I understand, it is twice a week for three— MR. LONG: Three hours. THE COURT: Twice a week for three hours supervised. MR. POWELL: Four. Four. (Off-the-record discussion.) MR. LONG: We’ve had—we’ve had a— MR. BASSETT: So just do a minimum of three twice a week. As long as it's a minimum of three twice a week, that’s fine. I know Ms. Jacobson— THE COURT: Okay. Two visits. Minimum of three, twice a week. That should resolve that issue.
Ex. 288 at 32 (unadmitted).
G. Powell Kills C.J.P. and B.T.P. During a Supervised Visit
On February 2, Atkins, the pastor, withdrew from being a visitation supervisor because of
the building criminal case against Powell regarding Susan’s disappearance. Atkin’s withdrawal
meant that Powell lost one of his primary supporters in the dependency proceedings.
On February 3, DSHS learned that Powell was likely going to be arrested in the near future.
That same day, Charles Cox, the boys’ grandfather called Jacobson, one of the social workers, and
warned her that Powell was backed into a corner and expressed his concern about the boys’ safety.
Jacobson assured Charles that continued visitations would be fine because nothing had happened
in the past.
On February 5, at 11:57 AM, Griffin-Hall arrived at Powell’s rental house with both of the
boys for a regularly scheduled visit. When they arrived, the boys got out of the car and ran ahead
to greet Powell.
Powell stood at the door waiting for the boys. Powell then picked the boys up and slammed
the door on Griffin-Hall when she was approximately a foot away—close enough that she could
10 55438-1-II
feel the vibration of the door. She then heard Powell triple locking the front door and telling the
boys: “Lay facedown. I have a surprise for you.” 20 RP (Mar. 11, 2020 AM) at 1421. She then
heard B.T.P. cry out as if he were in pain.
Griffin-Hall pounded on the door, pleading with Powell to let her in. She ran to the garage,
but began to smell gasoline. She knew something was terribly wrong because Powell normally
kept his garage in immaculate shape. Griffin-Hall called her supervisor, who in turn advised her
to call 911.
At 12:08 PM, Griffin-Hall called 911 to report the incident and informed the dispatcher that
the boys had been in the house for approximately 10 minutes. Shortly thereafter, she saw the house
explode and realized it was on fire. At 12:24 PM, she called 911 a second time to report the
explosion. First responders arrived at the rental house at 12:29 PM, approximately 21 minutes after
the first 911 call.
C.J.P.’s and B.T.P.’s bodies were found burned with multiple hatchet wounds to their upper
neck and head areas. Both of the boys died as a result of carbon monoxide (CO) poisoning from
the fire. C.J.P. was 7 years old and B.T.P. was 5 years old. Powell also died.
II. THE COXES’ AMENDED COMPLAINT AND THE PROCEEDINGS IN FEDERAL COURT2
In November 2014, the Coxes, individually and as personal representatives of the estates
of C.J.P. and B.T.P., filed an amended complaint in Pierce County Superior Court seeking damages
against DSHS and individual social workers (Forest Jacobson, Rocky Stephenson, Jane Wilson,
and Billie Reed-Lyyski) based on the deaths of C.J.P. and B.T.P. The amended complaint alleged
2 Much of the procedural history discussed in this section can be found in the Ninth Circuit opinion, Cox v. Dep’t of Soc. and Health Servs., 913 F.3d 831 (9th Cir. 2019).
11 55438-1-II
a 42 U.S.C. § 1983 claim against the individual social workers and negligence claims against
DSHS.
DSHS filed a notice of removal to the United States District Court for the Western District
of Washington. DSHS and the social workers moved for summary judgment, which the federal
district court granted. See Cox v. Dep’t of Soc. and Health Servs., 913 F.3d 831, 836 (9th Cir.
2019) (discussing district court opinion). As to the social workers, the district court concluded
that they had absolute immunity or, alternatively, qualified immunity from the Coxes’ § 1983
claims. See Cox, 913 F.3d at 836. As to DSHS, the district court concluded that the dependency
court’s February 1 orders were a superseding cause that severed DSHS’s liability for the deaths
and that DSHS did not negligently facilitate the visit. Cox, 913 F.3d at 836.
On appeal, the Ninth Circuit affirmed the district court’s dismissal of the § 1983 claims
against the social workers. Cox, 913 F.3d at 838. The Ninth Circuit reversed the district court’s
negligence holdings regarding DSHS because genuine issues of material fact remained as to
whether DSHS used reasonable care to avoid placing the boys in harm’s way, including: (1)
determining Powell’s visitation location; (2) facilitating the February 5, 2012 visitation; and (3)
training its social workers to conduct visitations. Cox, 913 F.3d at 841-42. The Ninth Circuit also
concluded that material issues of fact remained as to whether DSHS’s actions proximately caused
the boys to be placed in harm’s way. Cox, 913 F.3d at 842-43. Accordingly, the Ninth Circuit
remanded the negligence claims against DSHS to the district court, “express[ing] no opinion as to
the merits of those reinstated claims.” Cox, 913 F.3d at 843.
In May 2019, the district court remanded the state law negligence claims to Pierce County
Superior Court.
12 55438-1-II
III. PRE-TRIAL PROCEEDINGS
A. The Dependency Court Judge’s Testimony
Before trial, the Coxes moved to exclude the dependency court judge’s testimony as to
whether she reviewed particular materials submitted by DSHS during the dependency proceedings
because such testimony was not relevant, and even if it were, it should be excluded under ER 403.
DSHS objected to the exclusion of the dependency court judge’s testimony. DSHS argued
that the judge’s testimony was relevant because the Coxes claimed that DSHS failed to keep the
dependency court apprised of certain material facts, including but not limited to: (1) Powell’s
repeated violations of the dependency orders; (2) that visitations were moved to Powell’s rental
house; and (3) the boys’ therapist’s concerns about Powell’s behavior during therapy.
The trial court excluded the dependency court judge’s testimony because, given the lapse
of time, whether she would have changed her orders had she received additional evidence would
be speculative. The court permitted the admission of the file record if those records were certified
public records, but reserved ruling on each exhibit on an item-by-item basis.
B. Judge Bassett’s Testimony
The Coxes also sought to exclude Judge Bassett (Powell’s attorney during the dependency
proceedings) from testifying about his 2012 opinion of Powell’s low risk of harm to the boys
because such testimony is irrelevant. Notably, there is no record of Judge Bassett’s opinion in
2012.
DSHS responded that Judge Bassett’s testimony would be relevant. It surmised that Judge
Bassett would testify about the information he supplied to the court during the dependency
proceedings and to his opinion of low risk regarding Powell’s murder-suicide, which addresses the
issue of foreseeability. Again, there is no record of Judge Bassett’s opinion in 2012.
13 55438-1-II
The trial court granted the Coxes’ motion. The trial court excluded Judge Bassett’s
testimony because of his current role as a sitting superior court judge and because his testimony
would be cumulative.
C. Powell as an Intentional Tortfeasor
The Coxes and DSHS stipulated that Powell was an intentional tortfeasor for the purposes
of segregating damages from DSHS’s alleged negligence, if any. The trial court accepted this
stipulation.
IV. RELEVANT PORTIONS OF THE TRIAL3
The witnesses in this negligence trial testified consistently with the facts set forth above in
section I. Set forth below are portions of the trial pertaining to the noneconomic damages suffered
by C.J.P. and B.T.P., and DSHS’s CR 50 motion for a directed verdict based on superseding cause.4
A. Evidence on C.J.P.’s and B.T.P.’s Conscious Pain and Suffering
The Coxes called two witnesses to testify about the conscious pain and suffering that C.J.P.
and B.T.P. endured at the hands of Powell: Dr. Cyril Wecht and Dr. Richard Adler.
Dr. Wecht, a forensic pathologist, testified about the sequence and cause of the boys’
deaths, and their ability to perceive conscious pain and suffering. Dr. Wecht testified that Powell
first struck both of the boys with a hatchet multiple times. In C.J.P.’s case, Powell struck him in
the back of the neck five times. Each of those five chop wounds measured between 2.25 to 3.25
inches by 2 inches in size. One of the strikes transected a portion of C.J.P.’s spinal cord at C6,
3 On March 17, 2020, the trial went into recess due to the COVID-19 global pandemic. After a four-month recess, the trial resumed on July 13, 2020. 4 DSHS also made several motions seeking to admit testimony of the dependency court judge, Judge Bassett (Powell’s then attorney in the dependency proceeding), transcripts of the dependency proceedings, and a GAL report. Based on our ruling below, these facts are unnecessary for delivery of this opinion.
14 55438-1-II
which rendered him paralyzed from the upper chest down. However, C.J.P. remained conscious
after the strike to C6 and retained the ability to breathe, swallow, see, smell, and taste.
In B.T.P.’s case, Powell struck him with a hatchet multiple times in the head and upper
neck area, but Dr. Wecht was unclear as to precise number of strikes B.T.P. suffered. B.T.P.
suffered two prominent skull injuries from the hatchet strikes: (1) a 6-inch by 4-inch fracture to
the left side of his head, which became enlarged due to postmortem thermal damage, and (2) a
complex fracture that largely obliterated the back of his skull, leaving a large section of his brain
missing. One of Powell’s hatchet strikes also “fractured” a portion of B.T.P.’s upper neck at C4
and even left a small sliver of metal behind. 10 RP (Feb. 24, 2020 PM) at 1016. B.T.P. remained
conscious with these injuries.
Dr. Wecht testified that Powell then doused both of the boys with gasoline and, at some
point, started a fire. The autopsy reports showed the presence of alcohol in C.J.P.’s vitreous humor
(the fluid behind the eye) and in B.T.P.’s urine. Dr. Wecht testified that alcohol is a byproduct of
gasoline when it begins to break down in a fire. The presence of alcohol in both of the boys
suggested that they swallowed some of the gasoline that was poured on them. Dr. Wecht also
testified that the presence of alcohol in both of the boys clearly indicated that they were alive and
conscious during the event because one does not have the ability to swallow when rendered
unconscious.
Dr. Wecht testified that, as fire began to develop, the boys began to breathe in the
contaminated air, which contained carbon monoxide (CO). The autopsy reports showed that C.J.P.
had a CO level of 46 percent and that B.T.P. had a CO level of 51 percent at the time of their
deaths—both of which are fatal levels. Dr. Wecht testified that the CO levels meant that both of
15 55438-1-II
the boys were breathing in contaminated air until they died. Thus, Dr. Wecht concluded with
reasonable medical certainty that C.J.P. and B.T.P. died as a result of CO poisoning from the fire.
Dr. Wecht further testified that both of the boys’ Reticular Activating Systems (RAS) were
intact at the time of their death. The RAS is located in the brainstem and transmits physical
perceptions, such as pain and suffering. The RAS also controls consciousness. Those physical
perceptions are then further transmitted into the frontal lobe of the brain, which controls emotion
and intellectual feelings. Thus, Dr. Wecht testified that, because both of the boys’ RAS were still
intact at the time of their death that indicated to him that they were able to perceive conscious pain
and suffering—both physically and emotionally.
Dr. Wecht testified that both of the boys would have begun losing consciousness when
their CO levels reached 30-40 percent. Once an individual reaches a deep state of
unconsciousness, they would not be able to perceive pain and suffering. Dr. Wecht concluded that
the boys experienced conscious pain and suffering from 1 minute up to 8 or 9 minutes before losing
consciousness to CO poisoning—beginning at the time Powell slammed the front door on Griffin-
Hall.
Dr. Richard Adler, a forensic and clinical psychiatrist, provided testimony about the
physical and emotional component of the boys’ pain and suffering. He testified about the
unimaginable physical pain and suffering that the boys felt breathing in hot, toxic soot from the
fire and with gasoline on their chop wounds. Dr. Adler stated that he worked with child burn
victims and, even then, could not think of “any worse circumstances” than what occurred here. 11
RP (Feb. 25, 2020 AM) at 511. He also testified about the abject fear, confusion, and betrayal the
boys felt as they witnessed their own father mortally attack them and witness the same pain
inflicted upon their sibling. Dr. Adler testified that even given his line of work, he had “never
16 55438-1-II
encountered such an abject, sadistic, horrific, terrorizing experience” that the boys must have
endured—it was “almost beyond human comprehension.” 11 RP (Feb. 24, 2020 AM) at 509. Dr.
Adler further testified that the boys were predisposed to emotional harm based on Susan’s
disappearance and their sudden move to Washington which, in turn, likely heightened the
conscious pain and suffering they endured.
B. CR 50 Motion for a Directed Verdict Based on Superseding Cause
After the close of evidence, DSHS filed a motion for a directed verdict under CR 50. DSHS
argued that the February 1, 2012 dependency orders were a superseding cause to the Coxes’
negligence claims because the court was given all material information but still ruled that visitation
shall “remain as it currently is,” which included the visitation location. Clerk’s Papers (CP) at
7899.
At a hearing on the CR 50 motion, DSHS contended that the dependency court was aware
that visitations were occurring in Powell’s rental house based on Serrano’s GAL report, attorney
Bassett’s statements from dependency hearings, and Dr. Manley’s December 2011 report. The
trial court then inquired if there was anything in the dependency court’s order that specified
whether “supervised visitation must take place in [] Powell’s home or that in any way
circumscribes [DSHS’s] discretion in determining where and how often those visitations [would]
take place.” 38 RP (July 28, 2020 PM) at 2737. DSHS conceded that none of the orders ever
identified a specific visitation location. The trial court then denied DSHS’s CR 50 motion.
17 55438-1-II
V. JURY INSTRUCTIONS AND PROPOSED SPECIAL VERDICT FORMS
A. Jury Instruction 6 and DSHS’s Proposed Supplemental Instructions 41-43— Agency
The Coxes proposed jury instruction 6 which provided in relevant part that, “[FCRN] (and
its employees, including [] Griffin-Hall) was the agent of the State of Washington, and, therefore,
any act or omission of the agent was the act or omission of the State of Washington.” CP at 6396.
DSHS objected to the Coxes’ proposed instruction 6 contending that it erroneously
imposed an agency relationship as a matter of law and amounted to an improper comment on the
evidence by the trial court in violation of article IV, section 16, of the Washington Constitution.
DSHS instead proposed supplemental jury instructions 41, 42, and 43 because it contended that
the issue of agency was a disputed question of fact for the jury to resolve. DSHS’s proposed
supplemental jury instruction 41 provided that,
[DSHS] is sued as the principal and the plaintiffs’ claim that [] Griffin-Hall was acting as an agent. [DSHS] denies that [] Griffin-Hall was acting as an agent but admits that she was acting within the scope of authority under a contract. If you find that [] Griffin-Hall was the agent of [DSHS] [and that she] was acting within the scope of authority, then any act or omission of agent’s [] Griffin- Hall was the act or omission of [DSHS]. If you do not find that [] Griffin-Hall was acting as the agent of [DSHS], then [DSHS] is not liable.
CP at 7411. DSHS’s proposed supplemental jury instruction 42 provided that,
An agent is a person employed under an express or implied agreement to perform services for another, called the principal, and who is subject to the principal’s control or right to control the manner and means of performing the services. The agency agreement may be oral or in writing.
CP at 7412. DSHS’s proposed supplemental jury instruction 43 provided that,
An independent contractor is a person who undertakes to perform work for another but who is not subject to that other person’s control of, or right to control, the manner or means of performing the work. One who engages an independent contractor is not liable to others for the negligence of the independent contractor.
18 55438-1-II
CP at 7413.
The trial court rejected DSHS’s proposed instructions 41-43 and the special verdict form.
Instead, in instruction 6, the trial court instructed that FCRN and Griffin-Hall were agents of DSHS
as a matter of law: “[FCRN] (and its employees, including [] Griffin-Hall) was the agent of the
State of Washington, and, therefore, any act or omission of the agent, including its employees, was
the act or omission of the State of Washington.” CP at 8131.
B. DSHS’s Proposed Jury Instruction 24 and Proposed Supplemental Instruction 15—Superseding Cause
DSHS proposed jury instruction and supplemental instruction 15, which set forth its
superseding cause defense. Proposed supplemental jury instruction 15 provided that,
If you find the dependency and family court was aware of all material facts and information regarding [] Powell at the time of the court ordered visitation on February 1, 2012,[then] you cannot base any liability on [] the visitation occurring in [] Powell’s home, [and] your verdict should be for [DSHS]. A material fact is one that would have changed the court’s decision.
CP at 7894. The trial court denied supplemental jury instruction 15 reasoning that “There’s no
way of knowing what would have changed the Court’s decision. That’s entire speculation.” 38
RP (July 28, 2020 PM) at 2793.
Proposed jury instruction 245 provided that,
In order to establish proximate cause based on [DSHS’s] alleged failure to provide the court with new information objectively establishing that [] Powell posed an imminent risk of serious harm to his children, Plaintiffs must prove by a preponderance of the evidence that if [DSHS] had notified the court of this new information, the court would have modified its order and limited or denied parental visitation based on the new information.
5 DSHS mistakenly numbered this as proposed instruction 23.
19 55438-1-II
CP at 7346. The trial court denied proposed instruction 24 because “there’s no way that the [Coxes]
could prove that if the Court had additional information they would have modified or changed
their order one way or another. That sets up an impossible standard, and I don’t think
that is the law.” 38 RP (July 28, 2020 PM) at 2773.
C. DSHS’s Proposed Jury Instruction 26—Duty to Comply with Court Order
DSHS proposed jury instruction 26, which explained that DSHS had a duty to comply with
the dependency court orders and could only change or limit Powell’s visitation rights if there was
evidence that he posed an imminent and serious risk of harm to the boys. Instruction 26 provided
that,
In a situation where a court has ordered supervised parental visitation, [DSHS] has a duty to comply with that order. In order for [DSHS] to change court ordered parental visitation, it must have articulable facts objectively establishing that the parent posed an imminent and serious risk of harm to the child if the court ordered visitation is allowed to proceed, and must request the court to modify its order, unless there is insufficient time. This factual information must be information the court was not aware of at the time it ordered continued visitation.
CP at 7348.
The trial court denied instruction 26 because the dependency court “never ordered a
specific location” for the supervised visitations in the February 1 orders and because the evidence
showed that DSHS had the discretion to determine the location. 38 RP (July 28, 2020 PM) at 2774.
D. DSHS’s Proposed Jury Instruction 27—Denial or Limitation of Parental Visitations
DSHS proposed jury instruction 27, which explained that parents have a right to visitation
with their children and could only be limited or denied if the parent poses an actual risk of harm
to the child. Proposed instruction 27 provided that,
A statute provides visitation is the right of the family, including the child and parent, in cases in which visitation is in the best interest of the child. Early, consistent, and frequent visitation is crucial for maintaining parent-child
20 55438-1-II
relationships in making it possible for parents and children to safety reunify. [DSHS] shall encourage the maximum parent and child and sibling contact possible, when it is in the best interest of the child, including visitation and participation by the parents in the care of the child while the child is in placement. Visitation shall not be limited as a sanction for a parent’s failure to comply with court orders or services where the health, safety, or welfare of the child is not at risk as a result of the visitation. Visitation may be limited or denied only if a court determines that such limitation or denial is necessary to protect the child's health, safety, or welfare.
CP at 7349.
The trial court denied proposed instruction 27. The court appeared to reason that it did not
fairly characterize the law and because the Coxes did not present evidence that visitations should
have been denied or limited—rather, they argued that DSHS should have changed the location of
the supervised visitations.
E. DSHS’s Proposed Special Verdict Form
DSHS also proposed a special verdict form that incorporated questions consistent with
proposed instruction 24, proposed supplemental instruction 15, 41, 42, and 43, and proposed
instructions 26 and 27. The court declined to give this special verdict form.
F. DSHS’s Proposed Supplemental Jury Instruction 40—Lawyer Permitted to Disclose Client Information to Prevent Substantial Bodily Harm
DSHS proposed supplemental instruction 40, which explained attorney Bassett’s duty to
disclose information to prevent a client from committing substantial bodily harm or a crime under
RPC 1.6. Proposed supplemental instruction 40 provided that,
Under the rules of professional conduct for lawyers, a lawyer to the extent the lawyer reasonably believes necessary: (1) shall reveal information relating to the representation of a client to prevent reasonably certain death or substantial bodily harm; (2) may reveal information relating to the representation of a client to prevent the client from committing a crime. [] Bassett, [] Powell’s lawyer in the dependency case, did not reveal any information relating to his representation of [] Powell to prevent reasonably certain death or substantial bodily harm, or to prevent [] Powell from committing a crime.
21 55438-1-II
CP at 7410. The trial court denied proposed supplemental instruction 40 because there was no
evidence that the GAL or any of the social workers relied on the silence of attorney Bassett in their
actions or omissions during the dependency.
VI. CLOSING ARGUMENTS
At trial, counsel for the Coxes suggested that $5 million for every minute of conscious pain
and suffering would be a reasonable benchmark to compensate each estate for their noneconomic
damages. However, DSHS provided no argument to the contrary to guide the jury’s damage
determination.
VII. VERDICT AND POST-TRIAL MOTIONS
On July 31, 2020, the jury returned a verdict in favor of the Coxes finding DSHS negligent
and that such negligence was a proximate cause of C.J.P.’s and B.T.P.’s deaths. The jury awarded
C.J.P.’s and B.T.P.’s estates $57.5 million each in noneconomic damages (for a total of $115
million). The jury found that Powell’s intentional criminal acts proximately caused $8,245,500 to
each of C.J.P.’s and B.T.P.’s estates (for a total of $16,490,000) in noneconomic damages, which
was segregated.
On August 17, the trial court entered judgment against DSHS in the amount of $49,254,500
for each of the boys’ estates. Thus, a total judgment of $98,509,000 was entered against DSHS.
On August 27, DSHS filed a motion for a new trial under CR 59 and, in the alternative, an
order of remittitur pursuant to RCW 4.76.030. It argued that the noneconomic damages awarded
were so excessive that it was outside the range of substantial evidence in the record and was the
result of passion or prejudice.
22 55438-1-II
On September 15, the trial court granted DSHS’s motion for a remittitur and reduced the
damages award by two-thirds. The trial court permitted the Coxes to reject the remittitur and
accept a new trial as an alternative.
On October 8, the trial court issued an order finding
that the damages awarded were unmistakably far removed from the range that would be supportable based on substantial evidence in the record. Further, the damages awarded were so flagrantly excessive as to shock the conscience of the Court, and most certainly were driven by the passion or prejudice on the part of the triers of fact.
CP at 9172. Accordingly, the court vacated the judgment entered on August 17 and remitted the
damages award to each estate by two-thirds—to an amount of $16,418,166 per estate.6 The order
also provided that, in the event the Coxes elect not to accept the remittitur, DSHS’s motion for a
new trial would be granted.
The Coxes declined to accept the remittitur. At a hearing, DSHS argued that it was entitled
to a retrial on both liability and damages. The Coxes argued the court’s remittitur provided a basis
for a new trial on damages only. The trial court requested briefing on whether, if remittitur is
rejected, the new trial should be limited to damages only.
On January 6, 2021, the trial court entered an order granting DSHS’s motion for a new trial
pursuant to RCW 4.76.030—if the Coxes rejected the remittitur, then the new trial would be
limited to the issue of damages only.
DSHS appeals the jury’s liability verdict and trial court’s order granting a new trial on
damages only. The Coxes cross-appeal the trial court’s order remitting the jury’s award or ordering
a new damages trial.
6 The trial court initially entered an order on October 1which remitted the damages to $16,488,166 per estate. The October 8 order simply corrects the court’s remittitur calculation.
23 55438-1-II
ANALYSIS
DSHS’S APPEAL
I. SUPERSEDING CAUSE
DSHS argues that the trial court erred in denying its CR 50 motion because the February 1
dependency orders constituted a superseding cause that cut off its liability for the Coxes’
negligence claims. More specifically, DSHS contends that the February 1 dependency orders were
a superseding cause for the negligence claims because the dependency court was aware of all
material information—i.e. that supervised visitations were occurring at Powell’s rental house—
but still ordered visitation “to remain as it currently is,” which includes visitation location. Br. of
Appellant at 74; see also Br. of Appellant at 70 n.25. We disagree.
A. Standard of Review
“We review a trial court’s decision on a CR 50 motion as a matter of law and ‘apply the
same standard as the trial court.’” Mancini v. City of Tacoma, 196 Wn.2d 864, 877, 479 P.3d 656
(2021) (quoting Schmidt v. Coogan, 162 Wn.2d 488, 491, 173 P.3d 273 (2007)). We may affirm
the trial court’s decision on any ground supported by the record. Washburn v. City of Federal
Way, 178 Wn.2d 732, 753 n.9, 310 P.3d 1275 (2013).
“Courts are appropriately hesitant to take cases away from juries.” H.B.H. v. State, 192
Wn.2d 154, 162, 429 P.3d 484 (2018). “A motion for directed verdict ‘should be granted only
when, after viewing the evidence in the light most favorable to the nonmoving party, there is no
substantial evidence or reasonable inferences therefrom to support a verdict for the nonmoving
party.’” Mancini, 196 Wn.2d at 877 (quoting H.B.H., 192 Wn.2d at 162). “‘Substantial evidence
is said to exist if it is sufficient to persuade a fair-minded, rational person of the truth of the declared
24 55438-1-II
premise.’” Id. (internal quotation marks omitted) (quoting Delgado Guijosa v. Wal-Mart Stores,
Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001)).
B. Legal Principles
“A cause of action for negligence requires the plaintiff to show (1) that the defendant owed
a duty to the plaintiff, (2) breach of that duty, (3) an injury, and (4) a proximate cause between the
breach and the injury.” Travis v. Bohannon, 128 Wn. App. 231, 237, 115 P.3d 342 (2005).
“Proximate cause includes two elements: cause in fact and legal cause.” Petcu v. State,
121 Wn. App. 36, 56, 86 P.3d 1234 (2004). Cause in fact is a jury question, established by showing
that “‘but for’” the defendant’s actions, the plaintiff would not have been injured. Tyner v. Dep’t
of Soc. & Health Servs., 141 Wn.2d 68, 82, 1 P.3d 1148 (2000) (quoting Schooley v. Pinch’s Deli
Market, Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998)). “Legal cause involves the determination,
in view of ‘logic, common sense, justice, policy, and precedent,’ of the extent to which a defendant
should remain legally responsible for the harmful consequences of his acts [or omissions].” Petcu,
121 Wn. App. at 56 (internal quotation marks omitted) (quoting Minahan v. West. Wash. Fair
Assoc., 117 Wn. App. 881, 888, 73 P.3d 1019 (2003)).
A defendant’s negligence is the proximate cause of the plaintiff’s injury only if such
negligence, unbroken by any new independent cause, produces the injury complained of. Bishop
v. Miche, 137 Wn.2d 518, 532, 973 P.2d 465 (1999). “If a new, independent act breaks the chain
of causation, the original negligence is no longer a proximate cause of the injury and the defendant
is not liable for the injury.” Travis, 128 Wn. App. at 241. Courts referred to this as the doctrine
of superseding cause. Schooley, 134 Wn.2d at 482.
“A court order will act as a superseding cause that cuts off liability ‘only if all material
information has been presented to the court.’” McCarthy v. Clark County, 193 Wn. App. 314,
25 55438-1-II
329-30, 376 P.3d 1127 (2016) (addressing negligent investigation) (quoting Tyner, 141 Wn.2d at
88). “A material fact is one that would have changed the outcome of the court’s decision.” Petcu,
121 Wn. App. at 56. “Materiality is a question of fact unless reasonable minds could only reach
one conclusion.” McCarthy, 193 Wn. App. at 330.
In simplest terms, for DSHS to prevail on its CR 50 motion, it must show that, viewing the
evidence in the light most favorable to the Coxes, the court orders required or prohibited conduct
that caused an injury. Without causation, the Coxes would fail in a necessary element of their
negligence cause of action. DSHS fails to make this showing.
C. The Trial Court Did Not Err in Denying DSHS’s CR 50 Motion
Here, viewing the evidence in the light most favorable to the Coxes, the February 1
dependency orders were not a superseding cause that cut off DSHS’s liability for the negligent
visitation claims because the orders did not produce the injury complained of. Contrary to DSHS’s
contention, nowhere in the February 1 dependency orders did the court direct that supervised
visitations must occur at Powell’s rental house. Rather, the only conditions of supervised visitation
that the court imposed related to frequency and duration. Because there is no order circumscribing
DSHS’s discretion to change visitation location, we conclude that the February 1 dependency
orders were not a cause in fact and could not therefore be a superseding cause of the injury to the
boys.
DSHS appears to argue the February 1 dependency orders were a superseding cause for the
negligence claims because the court was aware that supervised visits were occurring at Powell’s
rental house, but still ordered visitation to “remain as it currently was.” Br. of Appellant at 74.
DSHS’s argument assumes that the court addressed visitation location in those orders. We
disagree.
26 55438-1-II
Here, DSHS misplaces its extensive reliance on the court’s oral ruling that visitation should
“remain as it currently is.” Washington is a written order state. State v. Molina, 16 Wn. App. 2d
908, 922, 485 P.3d 963, review denied, 198 Wn.2d 1008 (2021). The written order is controlling
and the trial court’s oral statements are no more than a verbal expression of its informal opinion at
the time. Id. Because the written February 1 dependency orders, on their face, did not direct a
specific visitation location, we conclude that those orders are not a superseding cause to the Coxes’
negligent visitation claims.
But also, DSHS’s reliance on the court’s oral ruling fails because the record demonstrates
that the phrase “remain as it currently is” refers only to frequency and location—not visitation
location, as again, location was never ordered by the court. The subject oral order can be found in
the transcript from the February 1 dependency review hearing. There, attorney Bassett engaged
in a brief colloquy with the court to clarify the order as it relates to supervised visits. The court
ruled that visitations would “remain as it currently is”—addressing only frequency and duration.
Ex. 288 at 32 (unadmitted). Thus, we conclude that DSHS’s argument fails in any event because
the court never addressed the location of the supervised visits during the hearing.
DSHS also argues that, in order to show that the February 1 dependency court orders were
not a superseding cause to the negligent visitation claims, the Coxes needed to first show that there
was material information that the court was unaware of. DSHS appears to rely on Tyner, 141
Wn.2d 68, and Bishop, 137 Wn.2d 518, to support its materiality argument. We disagree.
It is not the Coxes’ burden to disprove DSHS’s defense of superseding cause, rather it is
DSHS’s burden to first prove the existence of its own defense. Even so, Tyner and Bishop both
address situations where a court order was a potential superseding cause of the injury complained
of. In these cases, the crucial issue involved discovering the information provided or withheld by
27 55438-1-II
agencies, and whether that information was material to the resulting order, which in turn related to
causation of the injury by the agencies conduct or omissions. Tyner and Bishop are inapposite
here. The degree to which information was provided or withheld by DSHS, such that it influenced
the court orders, is immaterial because the February 1 court orders did not prohibit or require
conduct, i.e. the location of visits, that caused the injury to the boys. Thus, under no circumstance
did the Coxes bear the burden to show that there was material information that the court was
unaware of. This argument fails.
Next, DSHS contends that the Coxes needed to show facts alleging that Powell posed an
actual and imminent risk of harm to C.J.P and B.T.P. because, under RCW 13.34.136(2)(b)(ii),
such a showing is necessary to change or limit the location of the ongoing parent-child visitations.
In essence, DSHS claims it had no discretion to change the visitation location given the cited
statute. We disagree.
DSHS’s actual risk of harm argument based on RCW 13.34.136 is misplaced for two
reasons. First, RCW 13.34.136(2)(b)(ii) is inapplicable under these circumstances because that
statute addresses the permanency plan of care. But there was no permanency plan in place in this
case. Second, RCW 13.34.136(2)(b)(ii) is inapplicable on its face because the Coxes never
claimed that visitations should have been limited or denied—they only claimed DSHS was
negligent in the manner in which visitations were carried out, such as permitting visitations to
occur at Powell’s rental house in contravention of its own established policies and practice.
But DSHS’s contention fails for an additional reason. Viewing the evidence in the light
most favorable to the Coxes, DSHS’s own employees thought they had such discretion to change
visitation location. Indeed, Rodgers and Jacobson (the assigned social workers in the case)
testified that DSHS and the GAL had the discretion to change visitation location. And in fact,
28 55438-1-II
DSHS had changed the visitation location without seeking authority from the court when it moved
visits to Powell’s rental home in the first instance. Accordingly, this argument fails.
DSHS also briefly contends, without authority, that “[t]he only other way the visitations
could have been moved out of [] Powell’s [rental] home would have been with his consent.” Br.
of Appellant at 75 n.29. “Appellate courts need not consider arguments that are unsupported by
pertinent authority, references to the record, or meaningful analysis.” Cook v. Brateng, 158 Wn.
App. 777, 794, 262 P.3d 1228 (2010). Because DSHS fails to support its contention with citations
to authority or meaningful analysis, we need not consider this argument.
DSHS next appears to argue that the trial court’s ruling on its CR 50 motion is inconsistent
with the Ninth Circuit’s opinion, which remanded the negligence claims to permit the factfinder
to determine whether all material information had been disclosed to the dependency court. But
the Ninth Circuit expressed no opinion on whether the written dependency orders directed a
specific location—it only appeared to address the court’s oral ruling that visitation should “remain
as it currently is” and the materiality standard for when a court order constitutes a superseding
cause. Cox, 913 F.3d at 842-43. As explained above, the written orders did not produce the injury
complained of, so we need not address materiality. Therefore, the trial court’s ruling denying
DSHS’s CR 50 motion is not inconsistent with the Ninth Circuit’s opinion in Cox, 913 F.3d 831.
But even if it was inconsistent with the Ninth Circuit’s opinion, DSHS does not provide any
authority for why the trial court should have ruled “consistently” with the Ninth Circuit’s opinion
on this issue. This argument fails.
In sum, because the February 1 dependency orders did not direct that visitations must occur
at Powell’s rental house, those orders were not a superseding cause that cut off DSHS’s liability
29 55438-1-II
for the Coxes’ negligent visitation claims. Accordingly, we hold that the trial court did not err in
denying DSHS’s CR 50 motion for a directed verdict.
D. Proposed Instruction 24 and Proposed Supplemental Instruction 15
DSHS argues that the trial court abused its discretion in denying proposed instruction 24
and proposed supplemental instruction 15 because the absence of those instructions deprived it the
ability to argue that the February 1 dependency orders were a superseding cause to the Coxes’
negligent visitation claims. More specifically, DSHS contends that the denial of these proposed
instructions prejudiced its defense because
in their absence, the jury was left to believe that [DSHS] could have unilaterally ignored the [dependency] court’s decision for visitation to ‘remain as it currently is,’ which included the visits being in [] Powell’s home, and could have prohibited [] Powell from seeing his child in his home in the absence of proof (as opposed to speculation) that [] Powell posed a risk of harm.
Br. of Appellant at 68 (emphasis added). We disagree.
Whether to give a specific instruction is within the discretion of the trial court, therefore,
we review such decisions 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) (internal quotation marks omitted) (quoting Veit v. Burlington N.
Santa Fe Corp., 171 Wn.2d 88, 99, 249 P.3d 607 (2011). “Jury instructions are generally sufficient
if they are supported by the evidence, allow each party to argue its theory of the case, and when
read as a whole, properly inform the trier of fact of the applicable law.” Fergen v. Sestero, 182
Wn.2d 794, 803, 346 P.3d 708 (2015). The facts of the case govern the propriety of a jury
instruction. Id. The trial court is under no obligation to give a misleading instruction. Jaeger v.
Cleaver Constr., Inc., 148 Wn. App. 698, 716, 201 P.3d 1028 (2009). Likewise, a trial court is not
30 55438-1-II
required to give a proposed instruction if the instruction does not properly state the law or the
evidence does not support it. State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995).
Proposed jury instruction 24 provided that,
In order to establish proximate cause based on [DSHS’s] alleged failure to provide the court with new information objectively establishing that [] Powell posed an imminent risk of serious harm to his children, Plaintiffs must prove by a preponderance of the evidence that if [DSHS] had notified the court of this new information, the court would have modified its order and limited or denied parental visitation based on the new information.
CP at 7346. Proposed supplemental jury instruction 15 provided that,
If you find the dependency and family court was aware of all material facts and information regarding [] Powell at the time of the court ordered visitation on February 1, 2012, you cannot base any liability on the location of the visitation occurring in [] Powell’s home, your verdict should be for [DSHS]. A material fact is one that would have changed the court’s decision.
CP at 7894.
Here, as explained above, the February 1 dependency orders did not direct that visitations
must occur in Powell’s rental house or any other location—just that they be supervised.
Additionally, the evidence at trial demonstrated that DSHS had the discretion to choose visitation
location. Because proposed instruction 24 and proposed supplemental instruction 15 are not
supported by the evidence and are otherwise misleading, we hold that the trial court did not abuse
its discretion in denying those proposed instructions. Accordingly, this argument fails.
E. Proposed Instruction 26—Duty to Comply with Court Order
DSHS argues that the trial court abused its discretion in denying proposed instruction 26
because the absence of this instruction prejudiced its ability to argue superseding cause to the jury.
More specifically, DSHS argues that, without proposed instruction 26, it was unable to argue to
the jury that “[s]ince there was no evidence that [] Powell posed an actual risk of harm to his
31 55438-1-II
children, [DSHS] could not have changed the location of the visitation in violation of the court’s
ruling.” Br. of Appellant at 63. We disagree.
DSHS’s proposed instruction 26 provided that,
In a situation where a court has ordered supervised parental visitation, [DSHS] has a duty to comply with that order. In order for [DSHS] to change court ordered parental visitation, it must have articulable facts objectively establishing that the parent posed an imminent and serious risk of harm to the child if the court ordered visitation is allowed to proceed, and must request the court to modify its order, unless there is insufficient time. This factual information must be information the court was not aware of at the time it ordered continued visitation.
Here, the trial court did not abuse its discretion in denying proposed instruction 26 because
it is not supported by the evidence. As explained above, the February 1 dependency orders did not
require supervised visitations to occur at Powell’s rental house. And contrary to DSHS’s
contention, the evidence at trial demonstrated that DSHS did have the discretion to choose
visitation location.
DSHS appears to contend that the trial court abused its discretion in denying proposed
instruction 26 because it failed to give effect to the dependency court’s oral ruling that visitation
should “remain as it currently is,” which encompasses visitation location. As explained above,
Washington is a written order state. Molina, 16 Wn. App. 2d at 922. The written order is
controlling and the trial court’s oral statements are no more than a verbal expression of its informal
opinion at the time. Id. Here, the written dependency orders did not direct a visitation location.
In any event, the colloquy between the court and Powell’s attorney, (now) Judge Bassett, clearly
demonstrated that only the frequency and duration of the supervised visits were addressed, as
explained above. Thus, changing the visitation location would not have violated any court order.
Accordingly, there is no evidence to support proposed instruction 26.
32 55438-1-II
F. Proposed Instruction 27—DSHS’s ability to limit or deny visitation
DSHS argues that, even though the jury was instructed on the parent’s constitutional right
to visitation (jury instruction 14),7 the trial court abused its discretion in denying proposed
instruction 27 because that instruction would have explained to the jury that DSHS and the
dependency court could not deny or limit visitation unless Powell posed an actual risk of harm to
the boys—rather than a foreseeable risk of harm. DSHS again appears to argue that proposed
instruction 27 was necessary to explain to the jury that, absent evidence of an actual risk of harm
to the boys, it was powerless to change the supervised visitation location. We disagree.
Proposed instruction 27 provides that,
A statute provides visitation is the right of the family, including the child and parent, in cases in which visitation is in the best interest of the child. Early, consistent, and frequent visitation is crucial for maintaining parent-child relationships in making it possible for parents and children to safety reunify. [DSHS] shall encourage the maximum parent and child and sibling contact possible, when it is in the best interest of the child, including visitation and participation by the parents in the care of the child while the child is in placement. Visitation shall not be limited as a sanction for a parent’s failure to comply with court orders or services where the health, safety, or welfare of the child is not at risk as a result of the visitation. Visitation may be limited or denied only if a court determines that such limitation or denial is necessary to protect the child’s health, safety, or welfare.
CP at 7349 (emphasis added). This proposed instruction mirrors RCW 13.34.136(2)(b)(ii).
“Visitation is crucial to the reunification of families and the legislature has recognized its
importance in RCW 13.34.136(2)(b)(ii).” In re Dep. of Tyler L., 150 Wn. App. 800, 804, 208 P.3d
1287 (2009). In relevant part, that statute provides that,
(ii)(A) Visitation is the right of the family, including the child and the parent, in cases in which visitation is in the best interest of the child. Early,
7 Instruction 14 provides that “[a] parent’s right to raise their child is a fundamental right protected by the United States Constitution. The right to parent one’s child is protected by both the due process requirements of the Fourteenth Amendment to the United States Constitution and by article I, section 3 of the Washington Constitution.” CP at 8139.
33 55438-1-II
consistent, and frequent visitation is crucial for maintaining parent-child relationships and making it possible for parents and children to safely reunify. The department shall encourage the maximum parent and child and sibling contact possible, when it is in the best interest of the child, including regular visitation and participation by the parents in the care of the child while the child is in placement. (B) Visitation shall not be limited as a sanction for a parent’s failure to comply with court orders or services where the health, safety, or welfare of the child is not at risk as a result of the visitation. (C) Visitation may be limited or denied only if the court determines that such limitation or denial is necessary to protect the child’s health, safety, or welfare.
RCW 13.34.136(2)(b)(ii).8 To restrict liberal visitation, DSHS must prove that visitation poses a
current concrete risk to the child. Tyler L., 150 Wn. App. at 804. Harm to the child must create
“‘an actual risk, not speculation based on reports.’” Id. (quoting In re Dep. of T.L.G., 139 Wn.
App. 1, 17, 156 P.3d 222 (2007)). If the evidence supports the conclusion that visitation will harm
the child, the statute does not require an express finding that a visitation limitation is necessary to
protect the child’s health, safety, or welfare. In re Dep. of T.H., 139 Wn. App. 784, 794-95, 162
P.3d 1141 (2007). “[The statute] places the burden on the agency to encourage maximum parent-
child contact and to prove that visitation poses a current concrete risk to the children.” T.L.G., 139
Wn. App. at 17-18.
Here, DSHS is correct in its recitation of the law regarding the burden of proof that it bears
in order to limit or deny a parent’s visitation rights with their children. However, DSHS’s “actual
risk of harm” argument and reliance on RCW 13.34.136(2)(b)(ii) is misguided for three reasons.
First, as explained above, the evidence at trial demonstrated that DSHS did have the
discretion to change visitation location. And the February 1 dependency court orders neither
8 RCW 13.34.136 was amended in 2022, but those amendments are not material here. Therefore, we cite to the current version of the statute.
34 55438-1-II
specified a visitation location nor circumscribed DSHS’s discretion to change visitation location.
Thus, evidence does not support proposed instruction 27.
Second, the Coxes never claimed that supervised visits should been limited or denied so as
to have the statute apply. Rather, the Coxes argued that DSHS was negligent in: (1) assessing the
risk of harm Powell posed to the boys in regard to supervised visitation; (2) allowing visitations to
occur at Powell’s rental house; (3) organizing, conducting, supervising, and facilitating visitations;
and (4) through its negligence, DSHS failed to protect the boys from foreseeable harm. Stated
another way, the Coxes argued that DSHS was negligent in the manner in which visitations were
conducted—not that visitations should have be limited or denied. Therefore, proposed instruction
27 is immaterial and would have misled the jury of the applicable law.
Third, proposed instruction 27 would have misinformed the jury of the applicable law in
another way. As explained above, RCW 13.34.136(2)(b)(ii) is inapplicable under these
circumstances because that statute deals with the permanency plan of care. There was no
permanent plan in place for this statute to even apply.
We hold that the trial court did not abuse its discretion in denying proposed instruction 27
because that instruction is not supported by the evidence and would have misinformed the jury of
the applicable law.9
G. DSHS’s Proposed Special Verdict Form
DSHS also argues that the trial court erred in failing to give its proposed a special verdict
form that incorporated questions consistent with proposed instruction 24, proposed supplemental
instruction 15, and proposed instructions 26 and 27. Br. of Appellant at 70, 77. For the same
9 For this reason, DSHS’s reliance on Segaline v. Dep’t of Labor & Indus., 199 Wn. App. 748, 400 P.3d 1281 (2017), and its constitutional arguments to the contrary are without merit.
35 55438-1-II
reasons discussed above that the trial court did not err in failing to give DSHS’s proposed
instructions, we hold that the trial court did not err in failing to give DSHS’s proposed special
verdict form.
H. Jury Instruction 12
DSHS also assigns error to jury instruction 12, which set forth the Coxes’ negligence
claims. DSHS claims that the trial court erred in instructing the jury on a negligence theory for
which there was no evidence of causation. Because the trial court did not err in denying DSHS’s
CR 50 motion for a directed verdict based on superseding cause, we also hold that the trial court
did not err in giving instruction 12.
II. PRINCIPAL-AGENT RELATIONSHIP
DSHS argues that the trial court erred in giving instruction 6 because it improperly imposed
a principal-agent relationship on DSHS for the acts and omissions of FCRN and its employees
(Griffin-Hall) as a matter of law when the issue of agency was a disputed question of fact for the
jury to resolve. DSHS also contends that, by deciding an issue of fact as a matter of law, instruction
6 amounted to an impermissible comment on the evidence in violation of article IV, section 16 of
the Washington Constitution. In this same vein, DSHS argues that the trial court erred in failing
to give its proposed supplemental instructions 41, 42, and 43 because those instructions would
have allowed the jury to decide the disputed questions of fact pertaining to FCRN’s and Griffin-
Hall’s agency status.
We hold that the trial court did not err in giving instruction 6 and denying proposed
supplemental instructions 41, 42, and 43 because agency was properly imposed as a matter of law.
36 55438-1-II
Whether to give a specific instruction is within the discretion of the trial court, therefore,
we review such decisions for an abuse of discretion. Taylor, 187 Wn.2d at 767. A trial court
abuses its discretion when its ruling is manifestly unreasonable or based on untenable grounds.
Bengtsson, 14 Wn. App. 2d at 99. “Jury instructions are generally sufficient if they are supported
by the evidence, allow each party to argue its theory of the case, and when read as a whole, properly
inform the trier of fact of the applicable law.” Fergen, 182 Wn.2d at 803. The facts of the case
govern the propriety of a jury instruction. Id. The trial court is under no obligation to give a
misleading instruction. Jaeger, 148 Wn. App. at 716. Likewise, a trial court is not required to
give a proposed instruction if the instruction does not properly state the law or the evidence does
not support it. Ager, 128 Wn.2d at 93.
However, “[w]e review alleged legal errors in a jury instruction de novo.” Walter v. Spee
W. Constr. Co, 21 Wn. App. 2d 204, 210, 504 P.3d 878 (2022). “When a jury instruction
erroneously states the law and prejudices a party, we must reverse.” Hendrickson v. Moses Lake
Sch. Dist., 192 Wn.2d 269, 281, 428 P.3d 1197 (2018). “‘Prejudice is presumed if the instruction
contains a clear misstatement of the law; prejudice must be demonstrated if the instruction is
merely misleading.’” Id. (quoting Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851,
860, 281 P.3d 289 (2012)).
B. Instruction 6 Does Not Contain a Clear Misstatement of the Law
The trial court provided instruction 6 to the jury, which states that,
[FCRN] (and its employees, including [] Griffin-Hall) was the agent of [DSHS], and, therefore, any act or omission of the agent, including its employees, was the act or omission of [DSHS].
CP at 8131.
37 55438-1-II
DSHS argues that the trial court erred in giving instruction 6 because it erroneously
imposed an agency relationship between it, FCRN, and Griffin-Hall as a matter of law when the
issue of agency was a disputed question of fact for the jury to resolve. We hold that the trial court
did not err by imposing agency as a matter of law in instruction 6.
The general rule is that a principal may be held accountable for the actions of its agent.
Thornell v. Seattle Serv. Bureau, Inc., 184 Wn.2d 793, 803, 363 P.3d 587 (2015). However, a
principal will generally avoid liability for harm caused by the actions of an independent contractor.
Wilcox v. Basehore, 187 Wn.2d 772, 789, 389 P.3d 531 (2017). To determine whether a
relationship between two entities engaged in a business agreement “is a principal-agent
relationship or an ‘independent contractorship[,] . . . the most crucial factor is the right to control
the details of the work.’” Id. (quoting Larner v. Torgerson Corp., 93 Wn.2d 801, 804-05, 613
P.2d 780 (1980)). If the principal does not retain a right to control the other entity’s work, then
that other entity is an independent contractor. Id. at 790.
Generally, “‘[t]he existence of a principal-agent relationship is a question of fact.’” Afoa
v. Port of Seattle, 191 Wn.2d 110, 125, 421 P.3d 903 (2018) (quoting Uni-Com Nw., Ltd. v. Argus
Publ’g Co., 47 Wn. App. 787, 796, 737 P.2d 304 (1987)). Whether an entity is an agent or an
independent contractor “‘can only be decided as a matter of law where there are no facts in dispute
and the facts are susceptible of only one interpretation.’” Wilcox, 187 Wn.2d at 790 (quoting
Graves v. P.J. Taggares Co., 94 Wn.2d 298, 302-03, 616 P.2d 1223 (1980)).
Here, DSHS asserts the issue of control is disputed because it did not have the right to
direct the details of FCRN’s and Griffin-Hall’s work. As evidence to support this claim, DSHS
offered the contract between it and FCRN, which expressly disclaimed that FCRN or its employees
were employees or agents of DSHS but were instead independent contractors.
38 55438-1-II
The Coxes respond that the issue of control and contracting status of FCRN and Griffin-
Hall is irrelevant because the Supreme Court’s decision in H.B.H., 192 Wn.2d 154, imposes a
principal-agent relationship as a matter of law whenever DSHS delegates its duty to protect
dependent children from foreseeable harm. While we disagree with DSHS, we also hold that
H.B.H.’s agency analysis is inapplicable here.
In H.B.H., the Supreme Court recognized a common law duty requiring DSHS to protect
foster children from abuse based on a special relationship exception to the general rule that a party
is not required to protect against the criminal acts of a third party. 192 Wn.2d at 178. There, the
court explained that “[w]hen the court places a dependent child with DSHS, as in this case, DSHS
is the sole legal custodian of the child. . . . The transfer of legal custody charges DSHS with the
following duties: . . . (2) protecting . . . the child.” Id. at 166. The court recognized that “DSHS
retains the right to designate agents to carry out certain duties granted to it as a result of the transfer
of legal custody.” Id. On this point, the court expressly rejected the notion that foster parents were
independent third parties. Id. at 167 n.4. Instead, without conducting a traditional agency analysis,
the court stated that “[foster parents] are instead agents of DSHS, who carry out the day-to-day
responsibilities entrusted to DSHS in its role as the legal custodian of dependent children.” Id. at
167 n.4 (emphasis added).
Here, H.B.H. restated the well-established principle that DSHS has a duty to protect a
dependent child when that child is placed in its care, custody, and control. 192 Wn.2d at 166
(discussing JuCR 3.8(e)). That duty plainly applied to DSHS in this case because on February 1,
2012, the court ordered that both of the boys remain in the care and custody of DSHS while
authorizing relative placement with the Coxes. But we need not reach the agency analysis in
39 55438-1-II
H.B.H. because this case does not involve foster parents as H.B.H. did and is therefore
distinguishable on its facts.
Rather than rely on H.B.H., we apply long standing agency principles to conclude that
DSHS is liable for its failure to protect the boys. Whether FCRN and Griffin-Hall also had a duty
is immaterial. As discussed above, along with the transfer of legal custody, section 3.14 of the
February 1 dependency orders required DSHS to continue providing supervised visitations for
Powell: “Two visits each week, three hours each minimum, supervised by [DSHS] or [DSHS]
approved person. Visits may be expanded upon agreement of the GAL and social worker.” Ex.
257 at 7; Ex. 258 at 7. True, DSHS entered into a contract with FCRN and Griffin-Hall to provide
supervised visitation services. But, DSHS was without authority to absolve itself of the duty
placed upon it by the dependency court. Any contract it had with FCRN operated as a risk
management vehicle as between it and FCRN only, but did not nullify the duty placed on DSHS
by the court—a duty consistent with that observed by our Supreme Court in H.B.H. under JuCR
3.8(e). And while section 3.14 of the dependency orders permitted DSHS or a DSHS approved
person to supervise visits, this part of the dependency orders did not negate DSHS’s duty to protect
because DSHS was at all times C.J.P.’s and B.T.P.’s legal custodian.
And, as explained above, long standing agency principles resolve this issue in favor of the
Coxes in any event. Given that the most crucial factor of an agency analysis is the right to control
details of the work, we find it unfathomable that, had DSHS required that FCRN maintain close
proximity to the boys at all times (rather than let them run ahead), or conduct visits in a secured
facility (reasonable measures in light of the facts DSHS knew), that FCRN could have refused
DSHS’s control of these details of supervision services. Of course DSHS had the right to control
these details of FCRN’s work.
40 55438-1-II
We conclude that while visitations could be supervised by DSHS or a DSHS approved
person, DSHS still retained the duty to protect C.J.P and B.T.P. based on the transfer of legal
custody to DSHS in the dependency orders. Thus, while agency generally asks whether the
principal retained the right to control the details of the agent’s work, which is a question of fact,
here, DSHS always had the right to direct the details of FCRN’s and Griffin-Hall’s work because
of the dependency orders at issue. Accordingly, the trial court properly imposed a principal-agent
relationship as a matter of law.
Next, DSHS argues that instruction 6 amounts to an improper comment on the evidence
because the trial court decided agency as a matter of law when the issue of control was disputed,
which is a question of fact. We disagree.
The Washington Constitution does not allow judges to “charge juries with respect to
matters of fact, nor comment thereon.” WASH. CONST. art. IV, § 16. Instead, they “shall declare
the law.” Id. “‘A jury instruction that does no more than accurately state the law pertaining to an
issue, however, does not constitute an impermissible comment on the evidence by the trial judge.’”
State v. Brush, 183 Wn.2d 550, 557, 353 P.3d 213 (2015) (quoting State v. Woods, 143 Wn.2d
561, 591, 23 P.3d 1046 (2001)).
Here, consistent with the analysis above, the trial court did not improperly comment on a
matter of fact because the issue of agency turned on the legal effect of the February 1 dependency
orders. Because “[t]he interpretation of a court order is a question of law,” it is not a question of
fact for the jury to resolve. State v. Ayala-Pineda, 23 Wn. App. 2d 863, 870, 520 P.3d 463 (2022).
Accordingly, this argument fails.
DSHS next argues that instruction 6 is inconsistent with H.B.H. because it imposes liability
without limit and imposes vicarious liability without a finding that DSHS itself was negligent. We
41 55438-1-II
conclude that DSHS’s argument fails because, as discussed above, H.B.H’s agency analysis is
inapplicable here as this case has nothing to do with foster parents.
We hold that the trial court did not err in giving jury instruction 6 because it did not contain
a clear misstatement of the law.
C. Proposed Supplemental Instructions 41-43—Agency and Independent Contractors
DSHS argues that the trial court erred in failing to give its proposed supplemental
instructions 41, 42, and 43 because those instructions would have allowed the jury to decide the
disputed questions of fact pertaining to FCRN’s and Griffin-Hall’s agency status. We disagree.
Here, as explained above, the trial court did not err by instructing the jury that FCRN and
Griffin-Hall were agents of DSHS as a matter of law. Therefore, the trial court did not err in
denying DSHS’s proposed supplemental instructions 41-43 as those instructions would have
misled and confused the jury. Accordingly, this argument fails.
D. Special Verdict Form
Because DSHS’s arguments relating to instruction 6 and proposed supplemental instruction
41-43 fail, we also conclude the trial court did not err in refusing to give DSHS’s proposed special
verdict form, which would have asked the jury to answer whether Griffin-Hall was an agent of the
DSHS and whether she acted negligently during the visitation that led to the boys’ deaths.
III. LAWYER’S DUTY TO DISCLOSE CLIENT INFORMATION TO PREVENT SUBSTANTIAL BODILY HARM OR A CRIME
DSHS assigns error to the trial court’s failure to give its proposed supplemental instruction
40. We decline to address the issue.
For an issue to be considered on appeal, an appellant must raise the issue in the assignments
of error, present an argument on the issue, and provide some legal citation. Cook, 158 Wn. App.
at 794; RAP 10.3(a)(6). An appellant waives an assignment of error by failing to argue it in its
42 55438-1-II
opening brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549
(1992).
Here, DSHS fails to provide any argument as to how the trial court abused its discretion in
denying proposed supplemental instruction 40 in its opening brief. Accordingly, the assignment
of error is waived.
Regardless, even if the issue was not waived, the trial court did not abuse its discretion in
denying proposed supplemental instruction 40 because there was no evidence that any of the social
workers or the GAL relied on the silence of Judge Bassett in their acts or omissions during the
dependency. Accordingly, even if we reached the issue, the argument would fail.
IV. EVIDENTIARY RULINGS
DSHS argues that the trial court abused its discretion in excluding evidence that was
relevant to its superseding cause defense, such as: (1) testimony from the dependency court judge;
(2) Powell’s attorney for the dependency proceedings; (3) the transcripts from the dependency and
nonparental custody hearings; and (4) the January 2012 GAL report. DSHS contends that the
exclusion of the aforementioned evidence was not harmless error and requires a new trial. We
A. Legal Principles
We review the trial court’s evidentiary rulings for an abuse of discretion. Spencer v.
Badgley Mullins Turner, PLLC, 6 Wn. App. 2d 762, 784, 432 P.3d 821 (2018). The trial court
“abuses its discretion when its decision is manifestly unreasonable or is based on untenable
grounds or reasons.” Id. “[We] can affirm an evidentiary ruling on any ground supported by the
record.” Id. at 785.
43 55438-1-II
Generally, only relevant evidence is admissible. Gorman v. Pierce County, 176 Wn. App.
63, 84, 307 P.3d 795 (2013); ER 402. “Relevant evidence has any tendency to make a fact of
consequence more likely or less likely; this definition sets a low threshold.” Gorman, 176 Wn.
App. at 84; ER 401. Evidence which is not relevant is not admissible. ER 402. The trial court
may exclude relevant evidence “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” ER 403. The trial court
has “considerable discretion” in administering the ER 403 balancing test. Carson v. Fine, 123
Wn.2d 206, 226, 867 P.2d 610 (1994).
If we conclude that the trial court made an erroneous evidentiary ruling, “the question on
appeal becomes ‘whether the error was prejudicial, for error without prejudice is not grounds for
reversal.’” Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702, 728-29, 315
P.3d 1143 (2013) (quoting Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196,
668 P.2d 571 (1983)). “An error is prejudicial if ‘within reasonable probabilities, had the error not
occurred, the outcome of the trial would have been materially affected.’” City of Seattle v.
Pearson, 192 Wn. App. 802, 817, 369 P.3d 194 (2016) (quoting State v. Smith, 106 Wn.2d 772,
780, 725 P.2d 951 (1986)).
B. The Excluded Evidence is Irrelevant
The Coxes argue that excluded evidence is irrelevant because the February 1 dependency
orders never directed a specific visitation location. We agree.
At trial, the Coxes introduced evidence and argued that DSHS failed to inform the
dependency court about Powell’s repeated violations of court orders and the fact that visitations
were moved to Powell’s rental house. Although the February 1 dependency court orders did not
44 55438-1-II
direct visitation location, the excluded evidence, addressed below, was only relevant for the limited
purpose of rebutting the Coxes’ arguments as to what the court knew when it issued those orders.
But again, as discussed above, the court’s orders did not direct location of supervised visits—
whether DSHS withheld information negligently is not a fact that is of consequence to the action.
We hold that the trial court did not abuse its discretion in excluding evidence that was
relevant to DSHS’s superseding cause defense because the February 1 dependency orders were
not a superseding cause to the Coxes’ negligence claims.
In sum, because DSHS’s challenge to the CR 50 ruling, jury instructions, and evidentiary
rulings fail, we affirm the jury’s liability verdict finding that DSHS negligently failed to protect
C.J.P. and B.T.P. from foreseeable harm and that such negligence was a proximate cause of their
deaths.
THE COXES’ CROSS-APPEAL
I. REMITTITUR
The Coxes argue that the trial court erred in remitting the jury’s damages award by two-
thirds and, in the alternative, granting a new trial on damages because the jury’s verdict was within
the range of substantial evidence in the record and was not the result of passion and prejudice. We
agree and reinstate the jury’s verdict.10
A. The Standard of Review is De Novo
As an initial matter, the parties disagree as to the applicable standard of review. The Coxes
contend that de novo review applies because the trial court ordered a new trial pursuant to RCW
10 Because we hold that the trial court erred in granting DSHS’s motion for a new trial, and in the alternative a remittitur, we need not address DSHS’s new trial arguments.
45 55438-1-II
4.76.030. DSHS responds that, because the Coxes did not consent to the remittitur, “[t]he Supreme
Court’s recent decision in Coogan v. Borg-Warner Morse Tec, Inc., 197 Wn.2d 790, 815, 490 P.3d
200 (2021), makes clear that the review of a trial court’s order for a new trial is to be analyzed
under an abuse of discretion standard.” Br. of Cross-Resp’t. at 80. We agree with the Coxes.
The legislature granted the trial courts of this state the authority to increase or reduce a
jury’s damage award as an alternative to a new trial through RCW 4.76.030. The statute provides
If the trial court shall, upon a motion for new trial, find the damages awarded by a jury to be so excessive or inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice, the trial court may order a new trial or may enter an order providing for a new trial unless the party adversely affected shall consent to a reduction or increase of such verdict, and if such party shall file such consent and the opposite party shall thereafter appeal from the judgment entered, the party who shall have filed such consent shall not be bound thereby, but upon such appeal the court of appeals or the supreme court shall, without the necessity of a formal cross-appeal, review de novo the action of the trial court in requiring such reduction or increase, and there shall be a presumption that the amount of damages awarded by the verdict of the jury was correct and such amount shall prevail, unless the court of appeals or the supreme court shall find from the record that the damages awarded in such verdict by the jury were so excessive or so inadequate as unmistakably to indicate that the amount of the verdict must have been the result of passion or prejudice.
RCW 4.76.030 (emphasis added).
Washington courts have consistently held that the above statutory standard of review (de
novo) applies when the trial court actually remits an award. Bunch v. King County Dep’t of Youth
Servs., 155 Wn.2d 165, 176, 116 P.3d 381 (2005); see also Ma v. Russell, 71 Wn.2d 657, 658-59,
430 P.2d 518 (1967); Collins v. Clark County Fire Dist. No. 5, 155 Wn. App. 48, 88, 231 P.3d
1211 (2010); Hill v. GTE Directories Sales Corp., 71 Wn. App. 132, 138, 856 P.2d 746 (1993);
Hendrickson v. Konopaski, 14 Wn. App. 390, 394-95, 541 P.2d 1001 (1975). This is so because
when the trial court remits an award it invades the constitutional province of the jury as the trier
46 55438-1-II
of fact, thus making the less deferential standard of review (de novo) appropriate. Bunch, 155
Wn.2d at 176.
On the other hand, Washington courts have held that “[a]n abuse of discretion standard is
appropriate where . . . the trial court refused remittitur.” Bunch, 155 Wn.2d at 178; see also
Coogan, 197 Wn.2d at 797-98, 806 (applying an abuse of discretion standard of review where the
trial court denied defendant’s motion for a new trial and, in the alternative, a remittitur of the jury’s
damage award).
In Ma, the Supreme Court made clear that, “[w]hile [RCW 4.76.030] does not expressly
provide for an appeal by a nonconsenting party adversely affected by the order, the implication is
clear that, on such an appeal . . . this statute governs the review of the order reducing the verdict.”
71 Wn.2d at 659 (emphasis added). Therefore, under Ma, de novo review clearly applies even
when a party rejects remittitur and the trial court orders a new trial pursuant to RCW 4.76.030.
Here, de novo review applies because the trial court actually remitted the jury’s damage
award pursuant to RCW 4.76.030. The fact that the Coxes rejected the remittitur does not change
the applicable standard of review. Ma, 71 Wn.2d at 659. Additionally, DSHS’s reliance on
Coogan is inapposite because, unlike here, the trial court in that case denied the defendant’s motion
for a new trial which made the abuse of discretion standard appropriate. 197 Wn.2d at 797-98,
806. Because the trial court in this case actually remitted the award and ordered a new trial under
RCW 4.76.030, the applicable standard of review is de novo.
“Respect for the jury’s role in our civil justice system is rooted in Washington’s
constitution, which grants juries ‘the ultimate power to weigh the evidence and determine the
facts—and the amount of damages in a particular case is an ultimate fact.’” Coogan, 197 Wn.2d
47 55438-1-II
at 810 (quoting James v. Robeck, 79 Wn.2d 864, 869, 490 P.2d 878 (1971)). This jury function
receives constitutional protection from article 1, section 21 of the Washington Constitution. Sofie
v. Fibreboard Corp., 112 Wn.2d 636, 648, 771 P.2d 711 (1989).
“The jury’s role in determining noneconomic damages is . . . essential.” Sofie, 112 Wn.2d
at 646. “The determination of the amount of damages, particularly in actions of this nature [pain
and suffering], is primarily and peculiarly within the province of the jury, under proper
instructions, and the courts should be and are reluctant to interfere with the conclusion of a jury
when fairly made.” Bingaman v. Grays Harbor Comty. Hosp., 103 Wn.2d 831, 835, 699 P.2d
1230 (1985) (emphasis added). The jury is given “considerable latitude” in making damage
determinations. Kramer v. Portland-Seattle Auto Freight, Inc., 43 Wn.2d 386, 396, 261 P.2d 692
(1953). “‘We strongly presume the jury’s verdict is correct.’” Coogan, 197 Wn.2d at 810 (quoting
Bunch, 155 Wn.2d at 179).
“In narrow circumstances, that strong presumption can be overcome.” Coogan, 197 Wn.2d
at 810. Those circumstances are met if (1) the award is outside the range of substantial evidence
in the record, (2) shocks the conscience of the court, or (3) appears to have been arrived at as the
result of passion or prejudice. Mut. of Enumclaw Ins. Co., 178 Wn. App. at 726; RCW 4.76.030.
Our Supreme Court has explained that “the substantial evidence inquiry is the threshold question,
before turning to the question of excessiveness.” Coogan, 197 Wn.2d at 814 n.3.
“‘Where the proponent of a new trial argues [that] the verdict was not based upon the
evidence, appellate courts will look to the record to determine whether there was sufficient
evidence to support the verdict.” Coogan, 197 Wn.2d at 811-12 (quoting Palmer v. Jensen, 132
Wn.2d 193, 197-98, 937 P.2d 597 (1997)). Under this analysis, “the court is required to view the
evidence and reasonable inferences in the light most favorable to the verdict, without regard to
48 55438-1-II
contrary evidence or inferences.” Id. at 812. We owe no deference to the trial court’s conclusions.
Id. However, we must show appropriate deference to the jury’s constitutional role as the ultimate
finder of fact. Id. In the case of noneconomic damages, “[t]here is no legal standard for
determining the length of [pain and] suffering needed to support significant damages, especially
where that suffering is severe and involves an awareness of impending death.” Id. at 818.
“[T]he passion or prejudice inquiry and the shocks the conscience inquiry ask essentially
the same question: Did the jury base its verdict on some malign influence or egregious impropriety
at trial rather than the properly admitted evidence?” Id. at 813. If substantial evidence in the
record does not support the verdict, then that can lead to the conclusion that the award was the
result of passion and prejudice and shocks the court’s conscience. See Id. at 814; Hill, 71 Wn.
App. at 140. Otherwise, courts can order a new trial only if something in the record unmistakably
indicates that the verdict was based on some improper consideration that gives rise to passion or
prejudice, or that otherwise shocks the court’s conscience. Coogan, 197 Wn.2d at 814. That is,
“there must be something in the record showing that the jury’s verdict was improperly influenced
by ‘untoward incidents of such extreme and inflammatory nature that the court’s admonitions and
instructions could not cure or neutralize them.’” Id. (quoting James, 79 Wn.2d at 871). “The size
of the verdict alone cannot be proof that it was based on passion, prejudice, or any other improper
consideration.” Id. at 813.
If the verdict is supported by substantial evidence and the record does not clearly indicate
that the verdict resulted from passion or prejudice or was so beyond the bounds of justice that no
reasonable person could believe it is correct, then we must reinstate the jury’s verdict in full. Id.
at 820.
49 55438-1-II
C. The Jury’s Damage Award is Within the Range of Substantial Evidence in the Record
The Coxes argue that the trial court erred in concluding that the jury’s damage award was
not within the range of substantial evidence in the record. We agree.
Here, there is substantial evidence supporting a significant award of noneconomic damages
based on the horrific and brutal deaths that both C.J.P. and B.T.P. endured at the hands of their
own father, Powell. Dr. Wecht’s testimony demonstrated the severe physical pain and suffering
that the boys experienced. His testimony showed that Powell first stuck both of the boys in the
neck and head area with a hatchet multiple times. This was right after he had told boys to “[l]ay
facedown” because he had a “surprise” for them—suggesting this was meant to be some sort of
execution. 20 RP (Mar. 11, 2020 PM) at 1421. The hatchet strikes left C.J.P. paralyzed from the
upper chest down, obliterated the back of B.T.P.’s skull, and even left a small sliver of metal in
the back of B.T.P.’s neck. However, both of the boys remained conscious after the hatchet attack.
Dr. Wecht’s testimony demonstrated that Powell then doused both of the boys with gasoline while
they were alive and conscious, and lit them on fire. Both of the boys had swallowed some of the
gasoline in the process, and presumably, some also penetrated their hatchet wounds. Both of the
boys then laid in the house inhaling hot, toxic soot from the fire until they lost consciousness and
ultimately succumbed to CO poisoning. Accordingly, there was substantial evidence
demonstrating severe physical pain and suffering.
Dr. Adler’s testimony put into evidence the emotional component of boys’ the pain and
suffering. His testimony demonstrated the abject fear, confusion, and betrayal the boys felt as they
witnessed their own father mortally attack them and witnessed the same pain inflicted upon their
sibling. Additionally, Dr. Adler opined that the boys were already predisposed to emotional harm
based on Susan’s disappearance and events thereafter in Washington, which likely heightened the
50 55438-1-II
pain and suffering they endured during the attack. This was indeed an exemplary case because Dr.
Adler testified that, even given his line of work as a forensic and clinical psychiatrist, he had “never
encountered such an abject, sadistic, horrific, terrorizing experience” that the boys must have
endured—it was “almost beyond human comprehension.” 11 RP (Feb. 24, 2020 AM) at 509.
Accordingly, there was substantial evidence demonstrating severe emotional pain and suffering.
The damages were also within the range of substantial evidence in the record. On appeal,
the parties appear to agree that the boys tragically suffered for 22 minutes before the rental house
ignited. However, the record does not support that the boys’ conscious pain and suffering actually
lasted that long. When viewing the evidence in the light most favorable to the Coxes, Dr. Wecht’s
testimony established that the boys experienced pain and suffering for up to 9 minutes before
losing consciousness to CO poisoning—beginning at the time the front door slammed on Griffin-
Hall. At trial, counsel for the Coxes suggested that $5 million for every minute of conscious pain
and suffering would be a reasonable benchmark to compensate each estate for their noneconomic
damages. The jury then returned a verdict totaling $115 million for both estates, which was
reduced to judgment in the amount of $98,509,000 (or $49,254,500 per estate) after segregating
the damages proximately caused by Powell’s intentional acts. Thus, the jury here awarded each
estate approximately $5,472,722.22 per minute of conscious pain and suffering, which appears to
follow the Coxes’ suggested range of damages.
As explained above, “[t]he determination of the amount of damages, particularly in actions
of this nature [pain and suffering], is primarily and peculiarly within the province of the jury, under
proper instructions, and the courts should be and are reluctant to interfere with the conclusion of a
jury when fairly made.” Bingaman, 103 Wn.2d at 835. And the jury is given “considerable
latitude” in determining the amount of damages. Kramer, 43 Wn.2d at 396. Based on the above,
51 55438-1-II
we conclude that the jury’s damage award was within the range of substantial evidence in the
record.
D. Nothing in the Record Unmistakably Shows that the Jury’s Damage Award Resulted from Passion and Prejudice or Shocks the Conscience of the Court
The Coxes argue that the trial court erred in concluding that the jury’s damage award was
obviously the result of passion or prejudice because nothing in the record shows that the jury was
motivated by some malign influence or egregious impropriety at trial. We agree.
Here, having concluded that the jury’s damage award was within the range of substantial
evidence in the record, “‘it cannot be found as a matter of law that the verdict was unmistakably
so excessive or inadequate as to show that the jury had been motivated by passion or prejudice
solely because of the amount.’” Coogan, 197 Wn.2d at 814 (quoting James, 79 Wn.2d at 870-71).
Instead, DSHS must show that there is something in the record indicating that the jury’s verdict
was improperly influenced by “‘untoward incidents of such extreme and inflammatory nature that
the court’s admonitions and instructions could not cure or neutralize them.’” Coogan, 197 Wn.2d
at 814 (emphasis added) (quoting James, 79 Wn.2d at 871).
DSHS fails to make this showing. In fact, DSHS’s passion and prejudice argument appears
to rest on the assumption that the jury’s damage award was not within the range of substantial
evidence in the record. It fails to allege anything in the record unmistakably showing that the
jury’s damage award was arrived at as a result of passion and prejudice.
DSHS appears to claim that the verdict was the product of passion and prejudice because
the damages awarded were too high per minute. But “[t]he determination of the amount of
damages, particularly in actions of this nature [pain and suffering], is primarily and peculiarly
within the province of the jury.” Bingaman, 103 Wn.2d at 835. And the jury is given “considerable
latitude” in determining the amount of damages. Kramer, 43 Wn.2d at 396. Stated another way,
52 55438-1-II
there is simply no fixed standard to determine noneconomic damages—such determinations are
strictly within the jury’s discretion. Additionally, DSHS cannot now complain that the damages
were too high per minute when it failed to provide any argument to the contrary to guide the jury’s
damage decisions. All the jury had was the evidence, their human experience, and the suggested
range by the Coxes’ counsel. Accordingly, this argument fails.
Next, DSHS appears to argue that the verdict was a product of passion and prejudice
because the economic loss the boys suffered—based on the estimate provided by the Coxes’
economist—was highly disproportionate to the noneconomic loss the jury awarded. DSHS relies
on Hill, 71 Wn. App. 132, to support its argument. We disagree.
In Hill, Division Three of this court affirmed the trial court’s order remitting the jury’s
economic and noneconomic damages award for the plaintiff. 71 Wn. App. at 139-40. There, the
court affirmed the remittitur for the economic damages award because it was “clearly outside the
range of the evidence.” Id. at 139. The court affirmed the remittitur for the noneconomic damages
award reasoning that, “[i]n light of the meager evidence and the jury’s award of excessive
economic damages . . . we agree the [noneconomic damages] award clearly indicates passion or
prejudice, or an attempt to award punitive damages.” Id. at 140.
Here, Hill is inapposite to these circumstances because the jury was not asked to, and did
not, award economic damages. Thus, there is no excessive economic damages award that would
indicate that passion or prejudice influenced the jury’s noneconomic damages award.
Additionally, the damages evidence here was not meager, but substantial, as explained above.
Accordingly, DSHS’s reliance on Hill fails and all that remains is the size of the verdict. But size
of the verdict alone is not a basis to find passion and prejudice. Coogan, 197 Wn.2d at 813.
53 55438-1-II
“There is no legal standard for determining the length of [pain and] suffering needed to
support significant damages, especially where [as here] that suffering is severe and involves an
awareness of impending death.” Id. at 818. DSHS’s challenge to the sufficiency of the evidence
to support the verdict fails and there is nothing in the record unmistakably showing the jury’s
verdict was based on some improper consideration instead of the legally sufficient evidence. Thus,
in setting aside the damages verdict, the trial court intruded on the jury’s constitutional prerogative,
and impermissibly based its decision on the size of the verdict and its own subjective reweighing
of the evidence. Accordingly, we reverse the trial court’s January 6 order and reinstate the jury’s
damages award in full.
CONCLUSION
We affirm the jury’s liability verdict finding that DSHS negligently failed to protect C.J.P.
and B.T.P. from foreseeable harm and that such negligence was a proximate cause of their deaths.
However, we reverse the trial court’s January 6 new trial order and reinstate the jury’s damage
award in full.
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.
Veljacic, J.
We concur:
Maxa, J.
Cruser, A.C.J.
Related
Cite This Page — Counsel Stack
Judith Cox And Charles Cox, Respondents/cross-appellants V. DSHS, Appellant/cross-respondent, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judith-cox-and-charles-cox-respondentscross-appellants-v-dshs-washctapp-2023.