Edwards v. Colville Motor Sports, Inc.

JOHN AND LORI EDWARDS, a marital community, Appellants. v. COLVILLE MOTOR SPORTS, INC., a Washington corporation; JOHN DOE andJANE DOE, a marital community, Respondents.

No. 34449-5-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

December 19, 2017

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — John Edwards and Lori Edwards appeal from a defense judgment following a jury trial. They assert they are entitled to a new trial based on various trial court errors. We agree that the trial court erred when it instructed the jury on implied assumption of risk and when it dismissed the Edwardses' general negligence claim. We therefore reverse the judgment and remand for a new trial.

FACTS

In December 2010, Mr. Edwards bought an all-terrain vehicle (ATV) from Colville Motor Sports, Inc. (CMS). At the time of purchase, Mr. Edwards received a Polaris owner's manual, contract paperwork, and an operational video, which was essentially the owner's manual in video form. Mr. Edwards read and signed a document that stated:

"Hill climbing is dangerous and should be attempted only by experienced operators. Start on shallow slopes and practice procedures described in the owner's manual before trying steeper terrain. Some hills are too steep to safely stop or recover from and [sic] unsuccessful climbing attempt. If the vehicle slides backwards downhill, apply brakes with gradual even pressure to avoid flip over."

Report of Proceedings (RP) at 500.

Mr. Edwards had never ridden an ATV before. Mr. and Ms. Edwards read the owner's manual and watched the operational video together. The manual instructed that failure to heed its warnings and safety precautions could "result in severe injury or death." Ex. 42 at 5. It also warned that "[a] collision or rollover [could] occur quickly, even during routine maneuvers like turning, or driving on hills or over obstacles, if [the rider] fail[ed] to take proper precautions." Ex. 42 at 5.

The owner's manual also contained specific instructions regarding driving uphill. It instructed the rider to "[p]roceed at a steady rate of speed and throttle opening." Ex. 42 at 51. It cautioned that "[o]pening the throttle suddenly could cause the ATV to flip over backwards." Ex. 42 at 51. It further warned that "[o]perating on excessively steep hillscould cause an overturn," and instructed the rider to "[n]ever operate the ATV on hills steeper than 25 degrees." Ex. 42 at 16.

The owner's manual also contained instructions for the rider if the ATV stalled while climbing a hill. If the ATV lost forward speed or began rolling downhill, the manual instructed riders to keep their body weight uphill, apply the brakes, and "[n]ever apply engine power." Ex. 42 at 16. The manual warned that stalling or rolling backwards while climbing a hill could cause an overturn. Mr. Edwards understood these instructions.

A CMS employee delivered the ATV to the Edwardses' home and unloaded it. Mr. Edwards noticed the deliveryperson used a ramp to unload the ATV, so he went and bought six-foot ramps for loading and unloading the ATV in the future. Mr. Edwards drove the ATV four or five times throughout the next few months, mainly to ride to and from the mailbox at the end of his driveway.

In mid-May 2011, Mr. Edwards took the ATV to CMS for its first scheduled maintenance. At home, without assistance, Mr. Edwards attached the loading ramps to the tailgate of his full-size pickup truck. He did this on a level surface. He then drove the ATV into the bed of his truck without difficulty. This was the first time he had everloaded the ATV. He drove his truck to CMS where an unknown employee unloaded the ATV for him.

About two weeks later, CMS called Mr. Edwards and told him the ATV was ready. On May 31, on their way home from a fishing trip, Mr. and Ms. Edwards decided to pick up the ATV.

CMS sat on a hillside. Its parking lot sloped downhill and away from the building. There was no level spot in the parking lot. Yellow lines marked parking spaces, which faced the building at an angle. There were no warning signs about the slope or how to load ATVs. CMS did not have a loading dock.

Mr. Edwards parked his truck in one of the marked spots in front of CMS, with his truck facing uphill toward the building. Mr. Edwards went inside and paid the bill. He walked back out to his truck, removed the ramps from the bed, and began getting them ready.

A CMS shop assistant, William Harris, drove the Edwardses' ATV out from the shop and parked it two or three feet behind Mr. Edwards' truck. Mr. Harris helped Mr. Edwards finish attaching the ramps to the truck's tailgate.

Mr. Edwards assumed a CMS employee would load the ATV into his truck. Both customers and CMS employees would regularly load ATVs into trucks just outside thedoor of the building. The majority of customers who brought their ATVs in for maintenance would unload the ATVs themselves. However, an experienced CMS employee would load the ATV if asked, and it was up to the customers whether they wanted to load their ATVs themselves.

As Mr. Harris helped Mr. Edwards attach the ramps to the tailgate, Ms. Edwards said, "'Hon, this doesn't look safe.'" RP at 463. Mr. Edwards agreed. Ms. Edwards expressed her concerns to Mr. Harris and asked Mr. Harris if he would load the ATV into the truck.¹ Mr. Harris responded that he was uncomfortable doing so because he did not have much experience with ATVs. Typically, when Mr. Harris was uncomfortable loading an ATV, he would go get a more experienced employee to load it. Mr. Harris did not offer to go inside to get someone more experienced to load the ATV, nor did Mr. Edwards ask him to do so.

Mr. Edwards recognized that the parking lot was "[c]learly" sloped. RP at 518. Because of the slope, the Edwardses asked Mr. Harris if they should turn the truck around so it would face downhill and away from the building, thus decreasing the angle of theramps. Mr. Harris responded, "'No, we do it right here all the time,'" and also stated that he did not think "it makes much difference." RP at 185, 362.

Mr. Edwards got on the ATV and sat in the middle of the seat. Ms. Edwards and Mr. Harris stood to the side of the truck. Mr. Edwards was not wearing a helmet, although he had one at home, and CMS had some inside. He did not ask to borrow one, nor did Mr. Harris offer one. Mr. Edwards began driving up the ramp.

Mr. Edwards did not start out with enough speed and began losing momentum as the front tires reached the tailgate. As the ATV came to a stop, Mr. Edwards hit the throttle. This caused the front of the ATV to pop up and caused the ATV's center of gravity to shift behind the rear wheels. When this happened, the ATV flipped backward and landed on top of Mr. Edwards.

Mr. Harris pulled the ATV off Mr. Edwards. Paramedics arrived and Mr. Edwards was flown by helicopter to a hospital. The ATV had broken his eye socket, shoulder, and several ribs. It also shattered his jaw, punctured his lung, and penetrated his cheek and neck. Hospital staff put Mr. Edwards into a medically-induced coma for five days. He underwent 11 surgical procedures and incurred roughly $349,000 in medical expenses. He continues to have problems swallowing, speaking, eating, and drinking.

PROCEDURE

The Edwardses filed suit, naming CMS, John Doe, and Jane Doe as defendants.² They asserted claims of general negligence and premises liability.

Before trial, the Edwardses moved to exclude any evidence that Mr. Edwards was not wearing a helmet when the accident occurred. They argued this evidence was irrelevant to the issue of comparative negligence because Mr. Edwards's failure to wear a helmet did not cause the ATV to flip over. They also argued this evidence was irrelevant to Mr. Edwards's failure to mitigate damages, given that CMS had not presented any expert evidence showing that a helmet would have prevented some of Mr. Edwards's injuries.

The trial court granted the Edwardses' motion to exclude any helmet evidence as it related to the issue of factual causation. However, the trial court denied the motion as it related to the issue of damages, provided that CMS could show the absence of a helmet resulted in Mr. Edwards sustaining more severe injuries than he would have otherwise. The Edwardses requested permission to voir dire any experts to determine if they had sufficient medical training to opine on whether a helmet could have prevented Mr. Edwards's injuries. CMS argued that expert medical testimony was unnecessary, and thatit would be obvious for the jury that a helmet could have prevented some injuries. The trial court reserved ruling on the issue until it became ripe during the trial.

In its opening statement, CMS told the jury that Mr. Edwards was not wearing a helmet when the accident occurred, noted that Mr. Edwards's helmet had a faceguard, and asserted that a helmet would have protected him from some of the injuries. CMS further told the jury that Mr. Edwards did not ask CMS for a helmet, but rather chose not to wear one.

The Edwardses first called Ms. Edwards. On direct examination, plaintiffs' counsel asked Ms. Edwards if anyone at CMS had offered to obtain a helmet, and Ms. Edwards responded that no one had. Plaintiffs' counsel then asked if Mr. Harris had worn a helmet when he drove the ATV out from the shop, and Ms. Edwards testified that he had not.

On cross-examination, defense counsel asked Ms. Edwards if she and Mr. Edwards owned a helmet, and if they had it with them when they went to pick up the ATV. Ms. Edwards responded that they owned one, but did not bring it with them. Defense counsel asked if it was a full-face helmet that covered the wearer's neck and chin. Ms. Edwards testified it was. Defense counsel then asked where the ATV injured Mr. Edwards. Ms. Edwards testified the ATV injured his cheek and jaw area. Defensecounsel asked Ms. Edwards if her husband had instructed her to wear a helmet when she rode the ATV, and Ms. Edwards testified that he did.

The...