Laura Stocker, V. University Of Washington

• Court: Court of Appeals of Washington
• Decided: December 30, 2024
• Docket: 85745-2
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LAURA STOCKER, individually and as No. 85745-2-I Personal Representative of the Estate of Roger Stocker, DIVISION ONE

Respondent, PUBLISHED OPINION

v.

THE UNIVERSITY OF WASHINGTON,

Appellant.

FELDMAN, J. — Roger Stocker suffered a traumatic brain injury after

crashing his bicycle on a speed bump on a University of Washington (UW) campus

roadway. Laura Stocker, individually and as personal representative of the estate

of Roger Stocker, sued UW for negligence. The jury found negligence, awarded

damages to Stocker and Roger totaling over $4 million, and allocated 65 percent

of the fault to Roger and 35 percent to UW.1 UW appeals the trial court’s rulings

(a) denying its motion for additional time to examine its witnesses after it had

exhausted the 11-hour limit that the court imposed before trial, and (b) declining to

give its proposed jury instruction regarding its duty of care. Finding no error, we

affirm.

1 Because this matter involves both Roger and Laura Stocker, we refer to Roger by his first name

to avoid confusion. And, given her role as plaintiff, we refer to Laura Stocker as Stocker. No. 85745-2-I

I

In 2015, UW installed a 2-inch tall by 25-inch long speed bump on a campus

roadway. Several bicyclists crashed after running over the speed bump, so UW

painted the speed bump white and painted the word “BUMP” in two-foot-tall capital

letters 30 feet before the speed bump in both directions. Despite these warnings,

Roger ran over the speed bump on his bicycle, crashed, and suffered a traumatic

brain injury on September 12, 2017.

Many years before the accident, Roger had been diagnosed with

Alzheimer’s disease. The parties dispute whether the disease affected Roger’s

ability to ride a bicycle safely. Roger died two years after the accident, at the age

of 68, shortly after entering the hospital for obstructed bowels. Stocker was

subsequently appointed Personal Representative of Roger’s estate and, on

August 27, 2020, sued UW for wrongful death, alleging that UW’s negligence in

designing, constructing, and maintaining the speed bump caused Roger’s

accident, injuries, and death.

At a pretrial conference on December 15, 2022, the parties provided

preliminary estimates regarding trial length. Stocker’s counsel estimated they

would need three or four days for Stocker’s case, and UW’s counsel said, “I think

the University’s case would be short, and I would say two days.” The court stated

it would “take that as an estimate” and issued a pretrial order scheduling a “5-6

day remote jury trial.” The pretrial order also acknowledges that UW’s counsel

would be “unavailable . . . beginning June 5, 2023 for the remainder of June.”

Two days before opening statements, on May 16, 2023, the court asked the

parties again about their time estimates for trial. Stocker’s counsel estimated 14.5 -2- No. 85745-2-I

hours for direct and 7.5 hours for cross-examination, while UW’s counsel estimated

12.9 hours for direct and redirect and 16 hours for cross-examination. UW’s

counsel also informed the court that “there was a time where I was going to be

unavailable [after June 5 for the remainder of June] but that is no longer true.” The

court responded, “that is good to know that we have a little bit more breathing

room.” Nonetheless, the court warned the parties it would impose time limits if

they did not reduce their estimates to match those provided in December 2022.

The next day, Stocker increased her estimate by 3.5 hours while UW’s estimate

stayed the same.

On May 18, the same day as opening statements, the trial court announced

time limits for the examination of witnesses based on the parties’ December 2022

estimates. Stocker was allocated 22 hours (calculated as 5.5 hours per day

multiplied by four days) while UW was allocated 11 hours (calculated as 5.5 hours

per day multiplied by two days). The court then explained to both parties:

[Y]ou [referring to Stocker] get 22 hours total for your direct examinations, cross-examinations, examinations during rebuttal, and that’s it, and that the defense gets 11 hours for its direct examination, cross-examinations, redirects, recrosses; that’s it. So if you spend all that time on one witness and you run out of time, so be it. So you’ll have to figure out how you want to wisely use your time.

UW’s counsel did not object or indicate that 11 hours to examine witnesses would

not be enough time. Id. To the contrary, UW’s counsel generally took the position

that both parties should be held firmly to their previous estimates. See infra at 9-

10.

At trial, the court tracked how much time each side spent examining

witnesses and reported each side’s running total. On June 1, after it had used 10 -3- No. 85745-2-I

of its 11 allotted hours, UW filed a motion seeking an additional 10 hours to

examine witnesses. The court denied the motion, noting that it had already

informed the jurors that they would likely complete their jury service by June 8.

The court also stated that it might have extended the trial “if there was an

emergency that arose,” but concluded that UW’s purported need for additional time

“was a problem, at least in part, created by the parties,” noting “a lot of time was

spent on motions in limine . . . [which] ate away our time.” At the end of the day

on June 5, UW ran out of allotted time, and the court terminated UW’s direct

examination of its Alzheimer’s disease expert, Dr. Peter Rabins. According to

UW’s subsequent offer of proof, it still had several additional witnesses who were

prepared to testify—if permitted to do so—on the issues of negligence, contributory

fault, and damages.

Also during the trial, the parties discussed jury instructions regarding UW’s

duty of care. Stocker proposed the jury be instructed in accordance with WPI

140.01.01, which states: “The defendant’s duty includes a duty to take reasonable

steps to remove or correct hazardous conditions that make a road unsafe for

ordinary travel including hazardous conditions that may exist along the road.” 6

WASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 140.01.01

(7th ed. 2022). In response, UW argued the jury should also be instructed that

UW “has an alternative duty here. We can either correct the hazardous condition

or we can warn of the hazardous condition.” UW proposed an additional

instruction, which read: “The University of Washington’s duty of ordinary care is

to either eliminate a hazardous condition or to adequately warn the traveling public

of its presence.” -4- No. 85745-2-I

The trial court rejected UW’s additional instruction as unnecessary, stating,

“unless I’m missing something . . . a corrective action could be . . . putting a speed

[b]ump . . . but it also could be . . . painting it a brighter color, and . . . putting up

appropriate signage.” Stocker’s counsel similarly acknowledged, “[UW] can argue

that they corrected the dangerous condition by painting it white, by painting

‘bump.’” The trial court also explained, “We do have a WPI that does not include

the failure to warn language. So I’m going to keep it.” Consistent with the trial

court’s ruling and Stocker’s response, UW asserted in its closing argument that its

written warnings “corrected” the hazardous condition. See infra at 16-17. The jury

subsequently found negligence, awarded damages to Stocker and Roger totaling

over $4 million, and allocated 65 percent of the fault to Roger and 35 percent to

UW. UW appeals.

II

A. Time Limits

UW asserts the trial court abused its discretion in denying its motion for

additional time to examine its witnesses after it had exhausted the 11-hour limit

that the court imposed before trial. We disagree.

Our Supreme Court has explained that “[t]he trial court is generally in the

best position to perceive and structure its own proceedings” and, therefore, “has

broad discretion to make a variety of trial management decisions, [including] ‘the

mode and order of . . . presenting evidence.’” State v. Dye, 178 Wn.2d 541, 547,

309 P.3d 1192 (2013) (quoting ER 611(a)). ER 611(a) also states that trial courts

have discretion over the mode and order of presenting evidence “so as to . . . make

the . . . presentation effective for the ascertainment of the truth [and] . . . avoid -5- No. 85745-2-I

needless consumption of time.” This court has likewise recognized, “‘Trial judges

have wide discretion to manage their courtrooms and conduct trials fairly,

expeditiously, and impartially. We, therefore, review a trial judge’s courtroom

management decisions for abuse of discretion.’” Pierce v. Bill & Melinda Gates

Found., 15 Wn. App. 2d 419, 444, 475 P.3d 1011 (2020) (quoting In re Marriage

of Zigler and Sidwell, 154 Wn. App. 803, 815, 226 P.3d 202 (2010)). As discussed

below, time limits for the examination of witnesses are sometimes used to ensure

that trials are conducted fairly and expeditiously and are similarly reviewed for

abuse of discretion. A court abuses its discretion if its decision is manifestly

unreasonable or based on untenable grounds or untenable reasons. In re

Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014).

Time limitations in trial proceedings have become increasingly common. A

leading law review article summarizes the benefits and risks of such limitations as

follows:

Some trial time limits are in some instances a good thing. Only a curmudgeon or fanatic would blame Judge Jon Newman for his decision to impose restrictions in SCM Corp. v. Xerox Corp. to keep that gargantuan proceeding “within manageable proportions.” Further, as John Henry Wigmore declared nearly a century ago: “It has never been supposed that a party has an absolute right to force upon an unwilling tribunal an unending and superfluous mass of testimony limited only by his judgment or whim.” Yet, like so many other inventions of the modern era, trial time limits, if they are to be used, must not be used excessively or indiscriminately; rather, they must be used sparingly and in a targeted fashion. As Judge Richard Posner noted while affirming the judgment in McKnight v. General Motors: “[T]o impose arbitrary limitations, enforce them inflexibly, and by these means turn a federal trial into a relay race is to sacrifice too much of one good—accuracy of factual determination—to obtain another—minimization of the time and expense of litigation.”

-6- No. 85745-2-I

Nora Freeman Engstrom, The Trouble with Trial Time Limits, 106 Geo. L.J. 933,

981-82 (2018) (internal footnotes omitted). The prevailing consensus appears to

be that while time limits can sometimes be beneficial, care should be taken to

ensure that such limits do not prevent the parties from receiving a fair trial.

Although time limitations in trial proceedings are not uncommon, there are

no published appellate opinions in Washington that address the propriety of such

limitations. While unpublished, this court’s recent opinion in Welborn v. Snohomish

County, No. 82235-7-I (Wash. Ct. App. Nov. 8, 2021) (unpublished),

http://www.courts.wa.gov/opinions/pdf/822357.pdf, is instructive here. 2 The trial

court in Welborn allocated 8.5 hours to each party for witness presentation. Id. at

*4. There was no argument in Welborn, nor is there here, that the trial court lacked

authority to impose such a limit. Id. at *11 n.9. Instead, the plaintiffs in Welborn

argued “(1) the trial court’s allocation of time among the parties was arbitrary and

(2) those time limits forced the plaintiffs not to call certain witnesses and limited

their ability to cross-examine defense experts.” Id. at *8-9. Applying an abuse of

discretion standard of review, this court rejected the argument, noting that the trial

court indicated it would entertain a request for additional time upon a suitable offer

of proof, the plaintiffs failed to ask for more time in response to this invitation to do

so, and the plaintiffs failed to explain to the trial court or on appeal what particular

evidence they were unable to elicit from these witnesses and why this evidence

2 Although Welborn is unpublished, we may properly cite and discuss unpublished opinions where,

as here, doing so is “necessary for a reasoned decision.” GR 14.1(c). We adopt the reasoning of Welborn as reflected in the text above. -7- No. 85745-2-I

was significant. Id. at *11. The court also rejected the plaintiffs’ corresponding

due process argument. Id. at *9 n.8.

As Welborn and the many other cases cited by the parties here illustrate

(see infra at 12-13), appellate courts have identified numerous considerations

when reviewing a trial court’s ruling imposing or enforcing time limits for the

examination of witnesses at trial. Depending on the circumstances of each

individual trial, courts may consider:

(1) whether the trial court appropriately considered the parties’ own time estimates for examining witnesses in allocating trial time;

(2) whether time is allocated equitably based on which party has the burden of proof on pertinent claims and defenses;

(3) whether the aggrieved party timely objects to the imposed time limits and provides a rationale for why the limits are inadequate;

(4) whether the time limits are announced sufficiently in advance of trial and the trial court tracks time during trial to avoid unfair surprise;

(5) whether the trial court allows a party additional time upon a suitable offer of proof or unforeseen circumstances in the examination of witnesses; and

(6) whether there is a reasonable inference from the record that the aggrieved party’s improvident use of time caused the purported need for additional time.

As Welborn illustrates, these considerations are neither exhaustive nor mandatory.

Rather, these are circumstances that appellate courts may contemplate (to the

extent relevant) when reviewing a trial court’s ruling imposing or enforcing time

limits for the parties’ examination of witnesses at trial.

Here, some circumstances weigh in favor of affirmance, while others weigh

in favor of reversal. Weighing in favor of reversal, the initial allocation of time

appears to have been premised on a misunderstanding. UW’s counsel was asked

-8- No. 85745-2-I

to, and did, provide an estimate of the amount of time needed to present the

“University’s case.” The trial court then utilized that pretrial estimate to impose an

11-hour limit applicable to UW’s “direct examination, cross-examinations,

redirects, recrosses; that’s it.” And it imposed this limitation just prior to opening

statements, after UW had presumably planned its case. Additionally, while the

court permitted UW to make an offer of proof summarizing the additional evidence

it would have introduced had it been permitted to do so, that occurred after the

court had already denied UW’s request for additional time and was solely to

“preserve the issue for appeal.” 3

While the above circumstances weigh in favor of reversal, other

circumstances weigh in favor of affirmance. For example, the trial court’s limits

were expressly premised on the parties’ previous estimates regarding the amount

of time needed to present their case, which the court memorialized in a pretrial

order scheduling a “5-6 day remote jury trial.” Initially, UW’s position was that both

parties should be held firmly to their estimates. Thus, when Stocker’s counsel

complained about their previous estimate and suggested it was insufficient, UW’s

counsel responded:

Judge Ramseyer [the trial court judge at the December 2022 pretrial conference] asked both parties and then set that time. It wasn’t just our input. Asked both parties and then that’s what she ordered.

And so to claim that they never agreed to it, one, it’s kind of irrelevant, even though they did because they had input, we had

3 UW also was allocated half the amount of time as compared to Stocker, which arguably was

insufficient. While Stocker had the burden of proof at trial, UW intended to show that Roger was at fault to establish his share of any adjudicated liability. But we need not consider whether a different ratio may have been more appropriate because, as clarified at oral argument, UW does not claim the initial allocation of time to examine witnesses was inadequate or unfair. Wash. Ct. of Appeals oral argument, Stocker v. University of Washington, No. 85745-2-I (Nov. 14, 2024) at 4 min., 35 sec. to 5 min. 40 sec. (on file with court). -9- No. 85745-2-I

input, and then the judge said this is how many hours this trial is going to be.

The first I’ve heard them object to that is now. They didn’t object to her. And so she asked both of us, and then she said this is how long the trial will be.

Similarly, when the trial court announced its time limits, UW’s counsel did not

object or indicate this would not be enough time. Additionally, UW’s counsel

informed the trial court in December 2022 he expected to be “unavailable . . .

beginning June 5, 2023 for the remainder of June” and did not retract this

statement until the May 16, 2023 pretrial hearing—just two days prior to opening

statements.

Also, in reliance on the parties’ previous estimates, the trial court informed

potential jurors that they would be finished with deliberations by 4 p.m. on June 8,

which the court described as a “conservative” estimate. Some of that time, as the

court noted, was then “spent on motions in limine . . . [which] ate away our time.”

Then, during trial, the court tracked how much time each side spent examining

witnesses and regularly informed the parties of each side’s running total. Despite

knowing Stocker had been allocated twice as much time as UW for witness

examination, UW appears to have spent roughly an equal amount of time on cross-

examination in comparison to Stocker’s direct examination and substantially more

time cross-examining Stocker. In its appellate brief, UW essentially concedes that

its strategy was to intentionally run out the clock and then ask for more time:

Once the court had imposed the inadequate time limit, UW’s sole hope of obtaining a full and fair hearing was to cross-examine Plaintiff’s witnesses as appropriate and presume that the court would later grant more time when it became clear that the limit would almost entirely preclude the defense case.

- 10 - No. 85745-2-I

Consistent with this acknowledgement, UW’s counsel did not request additional

time until the seventh day of trial, after Stocker’s counsel had presumably limited

their own examination of witnesses. Thus, there is a reasonable inference from

the record that UW’s improvident use of allotted time caused the purported need

for additional time.

On this record, the trial court appropriately exercised its broad discretion to

conduct the trial “fairly, expeditiously, and impartially” (Pierce, 15 Wn. App. 2d at

444) in denying UW’s motion for additional time to examine its witnesses. Because

some of the relevant circumstances weigh in favor of affirmance, the trial court

exercised its discretion based on tenable grounds and tenable reasons. And while

some circumstances weigh in favor of reversal, “‘[a] reviewing court may not find

abuse of discretion simply because it would have decided the case differently—it

must be convinced that ‘no reasonable person would take the view adopted by the

trial court.’” Gilmore v. Jefferson County. Pub. Transp. Benefit Area, 190 Wn.2d

483, 494, 415 P.3d 212 (2018) (quoting State v. Salgado-Mendoza, 189 Wn.2d

420, 427, 403 P.3d 45 (2017)). Given the mix of relevant considerations, including

UW’s contribution to the alleged error, we cannot say that no reasonable person

would take the view adopted by the trial court. Accordingly, there was no abuse

of discretion.

While the parties cite numerous cases in support of their positions in this

appeal, those cases merely apply the same considerations that are listed above in

different circumstances. For example, Stocker relies heavily on General Signal

Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1508-09 (9th Cir. 1995),

where the Ninth Circuit noted (a) the trial court “regularly informed” both sides of - 11 - No. 85745-2-I

their use of time, (b) appellant’s counsel failed to heed warnings to save sufficient

time for further examination of witnesses, and (c) the “allocation of additional time

to [appellant] would have been unfair to [respondent].” Similarly, UW relies heavily

on California Crane School v. National Commission for Certification of Crane

Operators, 226 Cal. App. 4th Supp. 12, 23 (Cal. Ct. App. 2014), where the

appellate court noted (a) the trial court “reasonably” set time limits, (b) the

appellants “did not object or provide any rationale why the trial could not be

completed within that time period,” and (c) the “reasonable inference” from the

record showed that the appellants ran out of time due to their own case

management. While UW generally agrees (as do we) that all such considerations

are potentially relevant in determining whether a trial court abused its discretion, it

views the record differently and fails to accord deference to the trial court’s

determination as required by the applicable standard of review.

In addition to citing cases that apply the same constellation of relevant

considerations, UW also cites a case—Plaia v. Stewart Enterprises, Inc., 229 So.

3d 480 (La. Ct. App. 2016)—that sets forth six “non-exclusive” guidelines for a trial

court to consider in imposing limits on the time parties have to examine witnesses.

Id. at 490. Those guidelines are as follows:

(1) litigants have a general right to present all evidence he/she possesses with regard to the contested issue at trial that is relevant, admissible, and not cumulative, tempered by La. C.E. art. 403[4];

(2) before imposing time limitations, the trial judge should be thoroughly familiar with the case through pretrial proceedings,

4 Like ER 403 in Washington, La. C.E. art. 403 provides that relevant evidence may be excluded

if its probative value is substantially outweighed by considerations of undue delay or waste of time. Id. at 490 n.8. - 12 - No. 85745-2-I

including status conferences, pretrial conferences, and discovery;

(3) if time limitations are used, time limits should normally be imposed on all parties, before any party presents any evidence, and sufficiently in advance of trial for the litigants to prepare for trial within the limits imposed;

(4) the trial judge should inform the parties before the trial begins that reasonable extensions of the time limits will be granted for good cause shown;

(5) the trial judge should develop an equitable method of charging time against each litigant’s time limits. Rather than charging each side for the total time used to present its case, the judge should generally charge each party for the time the litigant uses, whether it be used on direct or cross-examination; and

(6) the trial judge should put all of the court’s rulings regarding time limitations and the reasons for the rulings on the record.

See id. at 490-91. This test, while framed differently, would lead to the same result

as the analysis described above because, with one possible exception (discussed

below), the trial court in this case complied with these guidelines.

UW emphasizes the fourth consideration in Plaia—that the trial judge

should inform the parties before trial begins that reasonable extensions of time

limits will be granted for good cause shown—and asserts that this consideration,

alone, may merit reversal. This argument fails on multiple grounds. First, unlike

in Plaia, no appellate authority in Washington has imposed such a requirement,

nor do we do so here. Second, while the trial court here did not inform the parties

that reasonable extensions of the time limits would be granted for good cause, it

also did not state unequivocally that no such extensions would be granted under

any circumstances. The fact that UW “presume[d] that the court would later grant

more time” indicates that it believed, based on the trial court’s representations to

- 13 - No. 85745-2-I

the parties, that the court would entertain a request for a reasonable extension of

time upon a showing of good cause. The trial court later indicated as much when

it clarified that it might have extended the trial “if there was an emergency that

arose,” but here there was none. And lastly, while the court in General Signal

Corporation (also cited by UW on this point) stated that “[g]enerally, courts look

upon rigid hour limits for trials with disfavor,” it upheld the trial court’s imposition of

rigid time limits based on the same considerations outlined above, such as clear

communication of the parties’ use of allocated time during trial, improvident use of

allocated time by the aggrieved party, and concerns about rewarding (or at least

condoning) the inefficient use of time while penalizing the party who managed their

time more effectively. 66 F.3d at 1508-09. Thus, the alleged rigidity of the trial

court’s time limits is not dispositive here.

UW also asserts it was denied a fair trial in violation of its procedural due

process rights. This argument fails on waiver grounds because UW did not present

a due process argument in the trial court. And while RAP 2.5(a) allows this court

to “refuse to review any claim of error which was not raised in the trial court,” UW

does not argue that the exception to RAP 2.5(a) for manifest errors affecting a

constitutional right applies here. But even if we exercise our discretion to address

the issue, UW’s due process argument would fail on the merits for the same

reasons discussed above. In general, “‘procedural due process requires that [a

party] receive notice of the deprivation and an opportunity to be heard to guard

against erroneous deprivation’ of a protected interest.” Fields v. Dep’t of Early

Learning, 193 Wn.2d 36, 44, 434 P.3d 999 (2019) (quoting Amunrud v. Bd. of

Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006)). Additionally, “[i]t is well - 14 - No. 85745-2-I

settled that a litigant is entitled to a fair trial but not a perfect one, for there are no

perfect trials.” In re Elmore, 162 Wn.2d 236, 267, 172 P.3d 335 (2007) (citing

Brown v. United States, 411 U.S. 223, 231-32, 93 S. Ct. 1565, 36 L. Ed. 2d 208

(1973)). Here, as the above discussion shows, UW received notice of the time

limit for its examinations of witnesses and had an opportunity to immediately object

but failed to do so. And perhaps most significantly, the record shows that UW, not

the trial court, was primarily responsible for its inability to examine its remaining

witnesses within the court’s 11-hour time limit. UW’s due process argument thus

fails.

B. Jury Instructions

UW also argues the trial court erroneously declined to give its proposed

instruction that its “duty of ordinary care is to either eliminate a hazardous condition

or to adequately warn the traveling public of its presence.” We disagree.

“Whether to give a certain jury instruction is within a trial court’s discretion

and so is reviewed for abuse of discretion.” Fergen v. Sestero, 182 Wn.2d 794,

802, 346 P.3d 708 (2015). “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.” Id.

Relatedly, “‘it is not error for a trial court to refuse a specific instruction when a

more general instruction adequately explains the law and allows each party to

argue its case theory.’” City of Seattle v. Pearson, 192 Wn. App. 802, 821-22, 369

P.3d 194 (2016) (quoting State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d

253 (2011)). In Cornejo v. State, 57 Wn. App. 314, 320-21, 788 P.2d 554 (1990),

for example, Division Three of our court held that the trial court did not abuse its - 15 - No. 85745-2-I

discretion by refusing to give the “duty of seeing” instruction, which is “a specific

application” of the general negligence instruction, because the aggrieved party

could still “argue its theory under the general negligence instruction.”

Here, the jury instructions were not misleading or incorrect and allowed UW

to argue its theory of the case. The court instructed the jury, “The defendant’s duty

includes a duty to take reasonable steps to remove or correct hazardous conditions

that make a road unsafe for ordinary travel including hazardous conditions that

may exist along the road.” One of UW’s principal defense theories was that it

“discharged its duty by adequately warning of any unreasonable hazard the speed

bump created for cyclists.” While WPI 140.01.01 does not expressly address that

theory, the trial court stated—and Stocker’s counsel agreed—that adequate

warnings can constitute a corrective action. The trial court and Stocker’s counsel

also gave examples of such corrective action: “painting [the speed bump] a

brighter color,” “putting up appropriate signage,” painting the speed bump white,

and painting the word, “bump.” As in Pearson and Cornejo, cited above, the trial

court’s “more general instruction” was sufficient because it “adequately explain[ed]

the law and allow[ed] each party to argue its case theory.” Pearson, 192 Wn. App.

821-22; Cornejo, 57 Wn. App. at 321-22. The trial court did not abuse its discretion

(nor did it err) in declining to give UW’s proposed instruction in addition to the more

general duty of care instruction in WPI 14.01.01.

Moreover, not only did the trial court’s instruction allow UW to argue its

theory of the case, UW in fact did so. In closing arguments, UW explained that,

after the initial construction of the speed bump, “there were four accidents that

occurred pretty rapidly.” UW then argued what it did to “correct” the hazard: - 16 - No. 85745-2-I

Then after that the University painted the speed bump white. The University then painted the warning bump 35 feet in front of the speed bump and painted arrows on the roadway. And then no other accidents occurred at that location for 13 months, not a single one, which would indicate to anyone running the facility that the problem had been fixed.

Since the “problem had been fixed,” UW argued that Roger’s injury resulted from

his own fault:

And so the arrow is pointing to the bright white painted speed bump, and the warning sign that is on the pavement is bright white. And the question for you, as members of the jury, is that hidden in any way? Is that misleading in any way? It certainly isn’t. It is clearly visible. And so the question is whether Mr. Stocker had the capacity to know what to do.

The trial court’s refusal to give UW’s more specific instruction regarding corrective

actions did not prevent UW from arguing this defense.

In arguing that the trial court abused its discretion, UW relies on Meabon v.

State, 1 Wn. App. 824, 463 P.2d 789 (1970). That reliance is misplaced. In

Meabon, the plaintiff sued the state for personal injuries suffered when the

automobile in which she was a passenger left a state highway due to the slippery

condition of the roadway. In discussing the duty of ordinary care, the court

recognized, “Inherent in this duty of ordinary care is the alternative duty either to

eliminate a hazardous condition, or to adequately warn the traveling public of its

presence.” Id. at 827-28 (citing Provins v. Bevis, 70 Wn.2d 131, 138, 422 P.2d

505 (1967)). While the court in Meabon concluded the trial court’s failure to instruct

the jury regarding “the adequacy of warning devices” was reversible error, it did

not analyze, nor was it asked to analyze, whether the State could argue its theory

of the case based on a more general instruction regarding the standard of ordinary

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care. Thus, the court in Meabon did not address the dispositive issue here and its

analysis is therefore inapposite.

Affirmed.

WE CONCUR:

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