IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
O wo VICTORY LONNQUIST, an individual, ~—4 f—
) No. 73569-1-1 Respondent, en
) DIVISION ONE en -E---V- v.
\ O PATRICK M. KIBE, and "JANE DOE" KIBE, husband and wife, both individually GO— 3Z'<
and on behalf of their marital community ) UNPUBLISHED OPINION composed thereof, ) FILED: August 15, 2016 Appellants.
Becker, J. — In this personal injury action arising from a highway collision,
the jury found the defendant was not negligent but also found that his "actions"
caused the collision. The trial court concluded that these findings were
inconsistent and granted the plaintiff's motion for a new trial. We reverse and
remand for entry of a defense verdict. The plaintiff invited any error by proposing
the confusingly worded verdict form, and in any event, a driver can cause a
collision without being negligent.
Victory Lonnquist and Patrick Kibe were both traveling on Highway 18 in
rainy weather on the night of the collision in September 2010. The speed limit
was 60 miles per hour. Lonnquist was in the left-hand eastbound lane; Kibe was
in the right-hand eastbound lane. The right front side of Lonnquist's sport utility No. 73569-1-1/2
vehicle collided with the left front side of Kibe's sedan. An ambulance came and
took Lonnquist to an emergency room. She was released several hours later.
Lonnquist sued Kibe for negligence. At trial, Lonnquist testified that Kibe
flew past her on the right and slammed on his brakes when he neared a disabled
vehicle that was parked on a gore point where an on-ramp joined the highway.
According to Lonnquist, Kibe was approximately six to eight car lengths ahead of
her when his car began to fishtail and spin. She testified that Kibe spun into her
lane and "everything went black."
Kibe testified that because it was raining, he was driving approximately 45
miles per hour and with the flow of traffic in his lane. According to Kibe, his car
was not in the lane in which Lonnquist was traveling when the collision occurred.
He testified that his car swung into the lane in which Lonnquist was traveling only
after she collided with him.
A Washington State Patrol Trooper who responded to the 911 call offered
the opinion that Kibe "caused" the accident by crossing into the lane in which
Lonnquist was traveling. An accident reconstruction expert who testified in the
plaintiff's case similarly concluded, based on observation of the point of impact
on each vehicle, that Kibe "came in front of" Lonnquist rather than Lonnquist
"turning into" Kibe. Another expert witness testified on behalf of the defense that
there was insufficient information to establish who lost control. None of the
expert witnesses could determine the speed at which either vehicle was
travelling, except to say that the deployment of Lonnquist's air bags meant that at No. 73569-1-1/3
the point of impact, one of them must have been going at least 15 miles per hour
faster than the other.
At closing, Lonnquist argued that the evidence showed she was overtaken
by Kibe who lost control of his vehicle, fishtailed into her lane, and caused the
crash. She asked the jury to award damages between $200,000 and $350,000.
Kibe argued that the evidence showed he was driving safely and did not cause
the accident. He suggested that ifthe jury awarded any damages at all, $30,000
was an appropriate award for an accident that caused no serious injuries.
The jury was given a set of instructions defining negligence, ordinary care,
proximate cause, and damages according to standard pattern instructions. The
verdict form, however, was nonstandard. A proper verdict form would have asked
the jury to decide whether Kibe was negligent and, if so, whether his negligence
was the proximate cause of damage to Lonnquist. See 6 Washington Practice:
Washington Pattern Jury Instructions: Civil 45.21, at 422-24 (6th ed. 2012)
(WPI); 6 WPI 45.24, at 435-36. Instead, the verdict form elicited the jury's
response that Kibe and his "actions" caused the collision and the injuries—but
also that he was not negligent. The jury found that Lonnquist's damages totaled
$16,009.
We, the jury, give the following answers to the questions submitted by the Court:
1. Did defendant Kibe cause the collision with Plaintiff Lonnquist's vehicle? Yes _X_ No 2. Was defendant Kibe negligent? Yes No X No. 73569-1-1/4
3. Did the actions of Defendant Kibe proximately cause Plaintiff Lonnquist's injuries? Yes J<_ No
Ifyou answered "no" to Questions 1, 2, and 3, do not answer Question No. 4. Rather sign and return this form.
Ifyou answered "yes" to Questions 1, 2, and 3, please answer Question 4.
4. What are plaintiff Victory Lonnquist's damages for the following?
Lost Past Medical Expenses $ 8765 Future Medical Expenses $ 4030 Physical Injuries to Date $ 0 Physical Future Injuries $ 0 Past Emotional Distress $ 3214 Future Emotional Distress $ 0
Kibe moved for entry of judgment for the defense. He took the position
that the jury's answers amounted to a defense verdict because of the finding of
no negligence. Lonnquist moved for a new trial. She took the position that the
verdict form was "inherently inconsistent and cannot reasonably be interpreted
one way or the other." The trial court ordered a new trial. Kibe appeals from that
order.
An order granting or denying a new trial is not to be reversed except for an
abuse of discretion. This principle is subject to the limitation that, to the extent
such an order is predicated upon rulings as to the law, such as those involving
the correctness of an instruction, no element of discretion is involved. A much
stronger showing of an abuse of discretion will ordinarily be required to set aside
an order granting a new trial than one denying a new trial. Lvster v. Metzqer, 68
Wn.2d 216, 220, 412 P.2d 340 (1966). No. 73569-1-1/5
Initially, Lonnquist claims Kibe's appeal is barred by the doctrine of invited
error. She argues that because Kibe did not object to the confusing special
verdict form, he invited any error flowing from its use.
The invited error doctrine prohibits a party from setting up an error at trial
and then complaining of it through a motion for new trial or on appeal. Sdorra v.
Dickinson, 80 Wn. App. 695, 702-03, 910 P.2d 1328 (1996); Nania v. Pac. Nw.
Bell Tel. Co., 60 Wn. App. 706, 709, 806 P.2d 787 (1991).
In Nania, a jury determined a telephone company was negligent and that
the company's negligence proximately caused the plaintiff's injuries. The
company moved for a new trial, arguing that special verdict responses regarding
the comparative fault of the plaintiff and a codefendant could not be reconciled
with other answers on the form. The trial court denied the motion for a new trial
and entered judgment for the plaintiff on the basis that the company had invited
error by its approval of the verdict form. Nania, 60 Wn. App. at 709-10. This
court affirmed.
Kibe did not propose the special verdict form, and he has not assigned
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
O wo VICTORY LONNQUIST, an individual, ~—4 f—
) No. 73569-1-1 Respondent, en
) DIVISION ONE en -E---V- v.
\ O PATRICK M. KIBE, and "JANE DOE" KIBE, husband and wife, both individually GO— 3Z'<
and on behalf of their marital community ) UNPUBLISHED OPINION composed thereof, ) FILED: August 15, 2016 Appellants.
Becker, J. — In this personal injury action arising from a highway collision,
the jury found the defendant was not negligent but also found that his "actions"
caused the collision. The trial court concluded that these findings were
inconsistent and granted the plaintiff's motion for a new trial. We reverse and
remand for entry of a defense verdict. The plaintiff invited any error by proposing
the confusingly worded verdict form, and in any event, a driver can cause a
collision without being negligent.
Victory Lonnquist and Patrick Kibe were both traveling on Highway 18 in
rainy weather on the night of the collision in September 2010. The speed limit
was 60 miles per hour. Lonnquist was in the left-hand eastbound lane; Kibe was
in the right-hand eastbound lane. The right front side of Lonnquist's sport utility No. 73569-1-1/2
vehicle collided with the left front side of Kibe's sedan. An ambulance came and
took Lonnquist to an emergency room. She was released several hours later.
Lonnquist sued Kibe for negligence. At trial, Lonnquist testified that Kibe
flew past her on the right and slammed on his brakes when he neared a disabled
vehicle that was parked on a gore point where an on-ramp joined the highway.
According to Lonnquist, Kibe was approximately six to eight car lengths ahead of
her when his car began to fishtail and spin. She testified that Kibe spun into her
lane and "everything went black."
Kibe testified that because it was raining, he was driving approximately 45
miles per hour and with the flow of traffic in his lane. According to Kibe, his car
was not in the lane in which Lonnquist was traveling when the collision occurred.
He testified that his car swung into the lane in which Lonnquist was traveling only
after she collided with him.
A Washington State Patrol Trooper who responded to the 911 call offered
the opinion that Kibe "caused" the accident by crossing into the lane in which
Lonnquist was traveling. An accident reconstruction expert who testified in the
plaintiff's case similarly concluded, based on observation of the point of impact
on each vehicle, that Kibe "came in front of" Lonnquist rather than Lonnquist
"turning into" Kibe. Another expert witness testified on behalf of the defense that
there was insufficient information to establish who lost control. None of the
expert witnesses could determine the speed at which either vehicle was
travelling, except to say that the deployment of Lonnquist's air bags meant that at No. 73569-1-1/3
the point of impact, one of them must have been going at least 15 miles per hour
faster than the other.
At closing, Lonnquist argued that the evidence showed she was overtaken
by Kibe who lost control of his vehicle, fishtailed into her lane, and caused the
crash. She asked the jury to award damages between $200,000 and $350,000.
Kibe argued that the evidence showed he was driving safely and did not cause
the accident. He suggested that ifthe jury awarded any damages at all, $30,000
was an appropriate award for an accident that caused no serious injuries.
The jury was given a set of instructions defining negligence, ordinary care,
proximate cause, and damages according to standard pattern instructions. The
verdict form, however, was nonstandard. A proper verdict form would have asked
the jury to decide whether Kibe was negligent and, if so, whether his negligence
was the proximate cause of damage to Lonnquist. See 6 Washington Practice:
Washington Pattern Jury Instructions: Civil 45.21, at 422-24 (6th ed. 2012)
(WPI); 6 WPI 45.24, at 435-36. Instead, the verdict form elicited the jury's
response that Kibe and his "actions" caused the collision and the injuries—but
also that he was not negligent. The jury found that Lonnquist's damages totaled
$16,009.
We, the jury, give the following answers to the questions submitted by the Court:
1. Did defendant Kibe cause the collision with Plaintiff Lonnquist's vehicle? Yes _X_ No 2. Was defendant Kibe negligent? Yes No X No. 73569-1-1/4
3. Did the actions of Defendant Kibe proximately cause Plaintiff Lonnquist's injuries? Yes J<_ No
Ifyou answered "no" to Questions 1, 2, and 3, do not answer Question No. 4. Rather sign and return this form.
Ifyou answered "yes" to Questions 1, 2, and 3, please answer Question 4.
4. What are plaintiff Victory Lonnquist's damages for the following?
Lost Past Medical Expenses $ 8765 Future Medical Expenses $ 4030 Physical Injuries to Date $ 0 Physical Future Injuries $ 0 Past Emotional Distress $ 3214 Future Emotional Distress $ 0
Kibe moved for entry of judgment for the defense. He took the position
that the jury's answers amounted to a defense verdict because of the finding of
no negligence. Lonnquist moved for a new trial. She took the position that the
verdict form was "inherently inconsistent and cannot reasonably be interpreted
one way or the other." The trial court ordered a new trial. Kibe appeals from that
order.
An order granting or denying a new trial is not to be reversed except for an
abuse of discretion. This principle is subject to the limitation that, to the extent
such an order is predicated upon rulings as to the law, such as those involving
the correctness of an instruction, no element of discretion is involved. A much
stronger showing of an abuse of discretion will ordinarily be required to set aside
an order granting a new trial than one denying a new trial. Lvster v. Metzqer, 68
Wn.2d 216, 220, 412 P.2d 340 (1966). No. 73569-1-1/5
Initially, Lonnquist claims Kibe's appeal is barred by the doctrine of invited
error. She argues that because Kibe did not object to the confusing special
verdict form, he invited any error flowing from its use.
The invited error doctrine prohibits a party from setting up an error at trial
and then complaining of it through a motion for new trial or on appeal. Sdorra v.
Dickinson, 80 Wn. App. 695, 702-03, 910 P.2d 1328 (1996); Nania v. Pac. Nw.
Bell Tel. Co., 60 Wn. App. 706, 709, 806 P.2d 787 (1991).
In Nania, a jury determined a telephone company was negligent and that
the company's negligence proximately caused the plaintiff's injuries. The
company moved for a new trial, arguing that special verdict responses regarding
the comparative fault of the plaintiff and a codefendant could not be reconciled
with other answers on the form. The trial court denied the motion for a new trial
and entered judgment for the plaintiff on the basis that the company had invited
error by its approval of the verdict form. Nania, 60 Wn. App. at 709-10. This
court affirmed.
Kibe did not propose the special verdict form, and he has not assigned
error to it; rather, he has assigned error to the order granting a new trial.
Because Kibe objected to the order granting a new trial, it cannot be said that he
invited the error he now complains of.
The court granted a new trial on the basis of Lonnquist's argument that the
jury's answers were inconsistent. But it was Lonnquist who proposed the
nonstandard verdict form—causation first, negligence second—that practically
guaranteed confusion. The form became further muddled by the directions that No. 73569-1-1/6
assumed the jury had to give the same answer—yes or no—to questions 1, 2,
and 3. Thus, it is Lonnquist who set up the error in the trial court and then
complained of it through her motion for a new trial. With a standard verdict form,
the first question would have elicited the jury's finding of no negligence, the jury
would not have proceeded to answer questions about causation or damages,
and this dispute would not have arisen. The trial court abused its discretion by
failing to recognize that Lonnquist invited error.
The trial court also erred in its determination that "the jury's answers to the
questions on the special verdict form are irreconcilable with the special verdict
form itself and the court's instructions to the jury." When reviewing a verdict that
appears to be inconsistent, a court must grant a new trial if contradictory answers
to interrogatories make the jury's resolution of the ultimate issue impossible to
determine. But when engaging in this type of analysis, a court must reconcile the
jury's answers if possible and cannot substitute its own judgment for the
judgment of the jury. Estate of Stalkup v. Vancouver Clinic. Inc., P.S., 145 Wn.
App. 572, 586, 187 P.3d 291 (2008).
The trial court acknowledged that it is not logically inconsistent to find
proximate cause but no negligence. The court reasoned, however, that the
factual issue for the jury was "who ran into who." The court recalled the
testimony by the expert defense witness who answered "yes" when asked: "If Mr.
Kibe . . . lost control, he was the primary cause of the crash, correct?" Based on
this testimony, the court concluded that the jury could not have found Kibe No. 73569-1-1/7
caused the collision without also finding that Kibe was negligent, thus the finding
of no negligence was inconsistent with the findings of causation.
The problem with the trial court's analysis is that the jury did not find that
Kibe's negligence caused Lonnquist's damages. The jury found only that Kibe
caused the collision and that his "actions" proximately caused Lonnquist's
injuries. These two findings are not inconsistent with the finding that Kibe was
not negligent. "The essential elements of actionable negligence are: (1) the
existence of a duty owed to the complaining party; (2) a breach thereof; (3) a
resulting injury; and (4) a proximate cause between the claimed breach and
resulting injury." Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984)
(emphasis added). A finding of causation is significant only if it connects the
injury to a defendant's negligence. Here, the jury found that Kibe was not
negligent.
The finding that Kibe's actions proximately caused Lonnquist's injury does
not demonstrate irreconcilable inconsistency. The jury could have found that
Kibe lost control of his vehicle and skidded into Lonnquist's lane of travel without
necessarily finding that he was driving carelessly. The skidding or loss of control
of an automobile, without more, is not definitive evidence of negligence. Rickert
v. Geppert. 64 Wn.2d 350, 355, 391 P.2d 964 (1964). Given Kibe's testimony
that he was driving under the speed limit, the jury may have reasonably believed
Kibe lost control of his vehicle due to weather conditions while still exercising
ordinary care "to avoid placing himself or others in danger" and "to avoid a No. 73569-1-1/8
collision."1
In summary, the plaintiff is not entitled to a new trial because she invited
the error that her motion for a new trial complained of. The plaintiff is not entitled
to a new trial for the further reason that the answers given by the jury are not
logically inconsistent, nor are they inconsistent with the evidence. The trial court
abused its discretion by giving the plaintiff the opportunity for a new trial.
The order granting Lonnquist's motion for a new trial is reversed. On
remand, the trial court shall enter judgment for the defendant in conformity with
the jury's finding of no negligence.
Reversed.
0 ^-
WE CONCUR:
\ >^ ~A. foifyf-
1"It is the duty of every person using a public street or highway to exercise ordinary care to avoid placing himself or others in danger and to exercise ordinary care to avoid a collision." Clerk's Papers at 165 (jury instruction).