Colyn v. Standard Parking Corp.

THYCE W. COLYN and AMY J. COLYN,individually and as husband and wife, Respondents, v. STANDARD PARKING CORPORATION, a Foreign Corporation;TAYLOR WARN, individually; and UNKNOWN JOHN DOES, Appellants.

No. 76425-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

January 22, 2019

UNPUBLISHED OPINION

SCHINDLER, J. — While driving across a one-way two-lane street, Standard Parking Corporation valet Taylor Warn collided with bicyclist Thyce Colyn. There is no dispute Warn had a duty to yield and Thyce Colyn had the right-of-way. Thyce and Amy Colyn filed a personal injury lawsuit against Standard Parking and Warn. At the conclusion of the evidence, the court granted the plaintiffs' motion for judgment as a matter of law on the negligence of Warn and the failure to prove contributory negligence. The court instructed the jury that the negligence of Warn was established as a matter of law and Standard Parking was liable for the negligence of Warn. The court instructed the jury that Thyce Colyn was not negligent. The jury awarded Thyce Colyn $7,259,238 for past and future economic damages, $4 million for past noneconomic damages, and $16 million for future noneconomic damages. The jury awarded Amy Colyn $2 million for past loss of consortium and $9 million for future loss of consortium. Standard Parking and Warn appeal the judgment on the verdict and the order denying the motion for a new trial. We affirm.

FACTS

Standard Parking Corporation provides valet service for the Grand Hyatt Seattle hotel located at 721 Pine Street. Taylor Warn worked as a valet driver for Standard Parking.

In 2012, the valets parked the cars of Grand Hyatt Seattle hotel guests at the Olive 8 parking garage located at 1635 Eighth Avenue. Eighth Avenue is a one-way two-lane northbound street. A painted bicycle symbol marks the right northbound lane as a shared car and bicycle lane.

Instead of driving northbound on Eighth Avenue to return a car to the Grand Hyatt, the valets used a "shortcut route." The valets would exit the Olive 8 parking garage driveway on Eighth Avenue, drive eastbound across the two one-way northbound lanes of traffic to a parking lot located across the street, turn right into an alley, and turn right on Pine Street.

At approximately 4:00 p.m. on October 8, 2012, Warn retrieved the Toyota Avalon of a Grand Hyatt hotel guest from the Olive 8 garage. It was a dry, bright sunny day. Warn drove the Toyota across Eighth Avenue toward the parking lot. Forty-seven-year-old Thyce Colyn was riding his bicycle on his way home from work in the farnorthbound lane on Eighth Avenue. The Toyota collided with the bicycle. Thyce¹ hit the hood of the car and landed on the ground. After the collision, Warn moved the car. There was "an indentation on the hood of the vehicle" and the right headlight was "completely shattered."

Seattle Police Officer Joseph Belfiore responded to the 911 call. Officer Belfiore was the investigating officer in charge of interviewing witnesses, collecting evidence, and preparing a "Traffic Collision Report." Officer Belfiore contacted medics and spoke to Warn. An in-car "dash cam" recorded the conversation with Warn. Warn told Officer Belfiore that before the collision, he was looking to the right toward oncoming traffic, but then something "caught his eye" and he was looking "left" when the collision occurred.

The force of the collision bent the front tire of the bicycle, cracked the bicycle frame near the left pedal, and cracked Thyce's bicycle helmet. The leather on the left bicycle handle was ripped and unraveled.

Thyce suffered "high energy" traumatic injuries from the force of the collision. His acetabular hip socket was broken, his pelvic bone was "shattered," the rotator cuff in his right shoulder was damaged, and he suffered traumatic brain injury. Thyce underwent a number of surgeries during a lengthy stay at Harborview Medical Center. In order to repair the pelvic bone, the lateral femoral cutaneous nerve had to be severed and permanent hardware installed. After his release from Harborview, Thyce spent approximately 55 days in an inpatient rehabilitation center.

At first, Thyce could not walk. Thyce uses a wheelchair. After four years of physical therapy, Thyce can walk with the assistance of forearm crutches or a walker. It takes "a lot of effort" for him to walk.

Thyce is a "high risk patient" for hip replacement because of the surgeries to repair his pelvis. The "[b]est case scenario would be that he would be able to walk around half to . . . one full revolution . . . around the track. . . . [W]hich is about a quarter mile."

Thyce suffers from severe chronic headaches and is in constant pain from his hip, pelvis, and damaged nerve. Thyce has cognitive impairment, tinnitus, and sensitivity to light as a result of the traumatic brain injury. Thyce is no longer able to recreate complex visual images. Thyce was diagnosed with depression, anxiety, and post-traumatic stress disorder.

Before the collision, Thyce was an expert in complex traffic signal maintenance and computer systems. With accommodation for his disabilities, Thyce was able to return to work at the Seattle Department of Transportation for approximately four hours a day. Thyce could no longer perform complex tasks. When he returns home from work, Thyce is exhausted and depressed. If Thyce were "not able to continue to work at the City of Seattle[,] . . . he's probably unemployable."

Thyce and his spouse Amy Colyn traveled and frequently rode their tandem bicycle, "around 40,000" miles. After the collision, their relationship changed from "husband and wife" to patient and caregiver. Amy² works fulltime and is the primary caregiver.

On July 14, 2015, Thyce and Amy (collectively, Colyn) filed a personal injury complaint for damages against Standard Parking and Warn. The complaint alleged Thyce had the right-of-way, Warn "failed to yield the right of way to [Thyce] and struck him in Mr. Colyn's lane," and Warn was acting "within the course and scope of hisemployment" with Standard Parking when he hit Thyce. The complaint alleged Warn admitted he was looking the other way and did not see Thyce before hitting him with the Toyota. "Warn told the investigating police officer that he did not see [Thyce] because he (Defendant Warn) was looking north, away from oncoming traffic, as he (Warn) was crossing 8th Avenue." The complaint alleged the police cited Warn for failing to yield the right-of-way to "bicyclists when emerging from an alley, driveway or building, as necessary to avoid a collision, in violation of Seattle Municipal Code 11.58.230 and RCW 46.61.365." The complaint attached a copy of the Seattle Municipal Court "Agreement to Defer Finding on Traffic Infraction." The agreement states Warn admits he committed the traffic violation. Colyn alleged Standard Parking did not properly train or supervise Warn and the "practice of short cutting across 8th Avenue to save time created an unnecessary and unreasonable risk of harm to cyclists, motorists and pedestrians travelling on 8th Avenue."

Warn and Standard Parking each filed an answer and asserted affirmative defenses. Warn admits he told the police he "did not see Mr. Colyn" but denies he "failed to yield the right of way" to Thyce or "struck him in Mr. Colyn's lane." Warn asserted as an affirmative defense that "damages may have resulted from plaintiffs' own failure to exercise ordinary care or by their own negligence and recklessness" and "[p]laintiffs may have failed to mitigate, minimize, or avoid the damages."

Standard Parking admitted Warn "was employed by Standard Parking and was operating a hotel patron's vehicle at the time of the collision." Standard Parking asserted as an affirmative defense that the "alleged damages may have resulted from plaintiffs' own failure to exercise ordinary care or by their own negligence andrecklessness" and that "[p]laintiffs may have failed to mitigate, minimize, or avoid the damages allegedly sustained and their recovery, if any, should be reduced appropriately."

The eight-day jury trial began on November 28, 2016. Colyn called more than 15 witnesses to testify, including Seattle Department of Transportation supervisors, Officer Belfiore, former Standard Parking manager Sean Curry, primary care physician Dr. Joan Olson, orthopedic surgeon Dr. Jonathan Clabeaux, physical medicine and rehabilitation specialists Dr. Andrew Friedman and Dr. Jared Olson, physical therapist Dr. Catherine Nutting, neurologist Dr. Braden Nago, clinical psychologist Dr. Jeffrey Sherman, vocational rehabilitation and case manager Anthony Choppa, and economist Dr. Christina Tapia.

Seattle Department of Transportation supervisors testified about the work Thyce performed before the collision and his struggle after the collision to perform tasks—"he's certainly . . . not the same man as he was before." Thyce was "a lot slower mentally" and could "only handle the simplest task."

With assistance, Thyce walked to the witness stand and testified about the life he and Amy had before the collision and how "now Amy's been thrust into the role of a caretaker" with no "time for visiting her friends or family." Amy testified about the logistics of caring for Thyce. Amy testified Thyce is "in constant pain" and "very, very sad."

At the close of the plaintiffs' case, Standard Parking and Warn (collectively, Standard Parking) filed a CR 50 motion for judgment as a matter of law. Standard Parking argued Colyn did not prove the elements of negligence or wage and economicloss. The court denied the motion.

Standard Parking called more than 10 witnesses to testify, including Warn, accident reconstruction expert John Hunter, orthopedic surgeon Dr. Stanley Kopp, neuropsychologists Dr. Gina Formea and Dr. Alan Breen, psychologist Dr. Gerald Rosen, neurologist Dr. Roman Kutsy, psychiatrist Dr. Kevin Berry, and certified public accountant and forensic economist William Partin.

At the conclusion...