Oliver v. Harvey

640 P.2d 1087, 31 Wash. App. 279, 1982 Wash. App. LEXIS 2458
CourtCourt of Appeals of Washington
DecidedFebruary 16, 1982
DocketNo. 8495-0-I
StatusPublished
Cited by1 cases

This text of 640 P.2d 1087 (Oliver v. Harvey) 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.

Bluebook
Oliver v. Harvey, 640 P.2d 1087, 31 Wash. App. 279, 1982 Wash. App. LEXIS 2458 (Wash. Ct. App. 1982).

Opinion

Callow, J.

The plaintiff, Jessie M. Oliver, recovered a judgment against the defendant, Delno Rae Harvey, in a suit arising out of an automobile accident. The jury awarded $6,040 to the plaintiff and $1,000 to the defendant. It found that the plaintiff had been 42 percent negligent and the defendant had been 58 percent negligent; the awards were reduced accordingly. The plaintiff appeals. We affirm.

The plaintiff, Oliver, argues on appeal that she was entitled to a directed verdict on the issue of the defendant's negligence and that the jury erroneously was instructed on the "deception doctrine." She also contends that her recovery was so inadequate that it must have been the result of the jury's passion or prejudice. The plaintiff also raises several objections to evidentiary matters.

The parties collided on the morning of November 3, 1976, at approximately 8:10 a.m., as the defendant made a left turn in front of the plaintiff's oncoming car. The defendant, traveling north, entered the designated left turn lane but did not stop or signal before beginning to turn. There was no stop sign at the intersection, however. The cars collided in the outside lane for southbound traffic, in which the plaintiff had been driving. The plaintiff's headlights were not on at the time, and there was evidence that [281]*281she was driving too fast under the foggy conditions. She testified herself, in response to a question as to her speed: "It was no more than 30 if it was that much." The investigating officer arrived on the scene 10 minutes after the collision. He testified in part:

A It was extremely foggy.
Q [Defense counsel] Now, fog is something that each of us pictures in our own mind and maybe have a different picture. When you say "extremely foggy" can you help us out by giving any example or anything to help us determine how foggy?
A Well, it was my impression that due to the weather conditions I had indicated it was a primary causative factor of the accident. It was extremely reduced visibility. I would guess approximately maybe three car lengths, four car lengths—correction, three or four cars with lights may have been seen in a normal traffic situation.
Q All right. Was it foggy enough that in your opinion, Officer, headlights were necessary for safety?
A Exactly.
Q Officer, did you make any—well, let me back up for just a moment. What was the speed on that particular roadway at that time?
A It would have been 35.
Q Did you make any determination, Officer, that under the foggy conditions what a safe speed would be at the time?
A I had indicated 20 miles per hour.

I

Motion for a Directed Verdict

The plaintiff moved for a directed verdict at the close of the defendant's case, contending that the defendant had violated RCW 46.61.185 and was therefore negligent as a matter of law. The statute provides:

The driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

Violation of the statute is negligence per se unless the [282]*282defendant can establish that he was deceived by the plaintiff's actions. The "deception doctrine" applies when "the driver who has statutory favored status has by some wrongful driving conduct deceived a reasonably prudent disfavored driver into believing that he can proceed through an intersection with a fair margin of safety." Chapman v. Claxton, 6 Wn. App. 852, 856, 497 P.2d 192 (1972).

In ruling on a motion for a directed verdict, the trial court must view the evidence in the light most favorable to the nonmoving party. Such a motion admits the truth of the nonmoving party's evidence and all reasonable inferences therefrom. "The trial court has no discretion and may grant the motion only where there is no competent evidence nor reasonable inference which would sustain a jury verdict in favor of the nonmoving party." Levy v. North Am. Co. for Life & Health Ins., 90 Wn.2d 846, 851, 586 P.2d 845 (1978).

Harris v. Burnett, 12 Wn. App. 833, 839, 532 P.2d 1165 (1975), applied this standard to the denial of a directed verdict in a case involving an intersection collision.

[UJnless the evidence can only be interpreted as showing negligence on the part of the nonmoving party and an absence of negligence on the part of the moving party, such a motion should be denied. The trial court properly left the evaluation of the actions of the parties to the jury.

In the present case, viewing the evidence in the light most favorable to the defendant required the court to assume that the plaintiff "was driving too fast, did not have lights on, and it was terribly foggy." Such evidence did not show an absence of negligence on the plaintiff's part, and the trial court properly denied her motion.

II

Jury Instruction

Second, the plaintiff contends that the trial court erroneously instructed the jury on the "deception doctrine," which was stated in the second paragraph of an instruction [283]*283based upon WPIC 70.02. The instruction stated:

A statute provides that a driver intending to turn to the left within an intersection shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard. This right of way, however, is not absolute but relative, and the duty to exercise ordinary care to avoid collisions at intersections rests upon both drivers. The primary duty, however, rests upon the driver turning to the left, which duty he must perform with reasonable regard to the maintenance of a fair margin of safety at all times.
If the oncoming driver wrongfully, negligently, or unlawfully operates his vehicle in such a manner that it would deceive a reasonably careful driver making the left turn, so as to cause him to proceed forward on the assumption that he had a fair margin of safety, and if the driver turning left is in fact so deceived, then the right of way rule would not apply in favor of the oncoming driver.

The favored driver's deception will excuse the disfavored driver from his duty to yield the right-of-way only when the deception is tantamount to an entrapment. Gray v. Pistoresi, 64 Wn.2d 106, 110, 390 P.2d 697 (1964); Axness v. Edwards, 9 Wn. App. 780, 783, 515 P.2d 174 (1973). The "deception doctrine" has been applied in two distinct situations. First, it applies when

the disfavored driver

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hammel v. Rife
682 P.2d 949 (Court of Appeals of Washington, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
640 P.2d 1087, 31 Wash. App. 279, 1982 Wash. App. LEXIS 2458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliver-v-harvey-washctapp-1982.