TACOMA, Wash. (Legal Newsline) – A skateboarder who won a $6.5 million jury verdict after being hit by a car in a pedestrian crosswalk must go back to court after a Washington appeals court reversed the decision, saying the defense should have been able to present evidence the skateboarder was stoned at the time of the accident.
Austin K. Fite sued Lee Mudd, the driver of the truck that hit him, as well as the City of Puyallup after he was struck. A jury found the driver 33% at fault and Puyallup 67% responsible for maintaining an unsafe crosswalk.
Puyallup appealed, arguing the trial judge improperly excluded evidence Fite was intoxicated and failed to look for traffic before skateboarding into the crosswalk. An eyewitness testified that Fite never stopped and never looked left or right, although she later amended her statement to say she couldn’t recall the second part. The trial court also excluded the results of a routine hospital urinalysis that found tetrahydrocannabinol or THC, the intoxicating chemical in marijuana, as well as Fite’s statement to his doctor he was “high on cannabis” that day.
Finally, the city contested the trial court’s allowance of police reports about prior accidents at the intersection and jury instructions that said they could find the crosswalk was dangerous even if it complied with all laws and regulations.
The city won most of its arguments on appeal. Washington’s Division II Court of Appeals, in a Nov. 9 decision by Judge Bernard F. Veljacic, reversed the jury verdict and ordered a new trial, finding multiple errors by the trial judge.
Washington law provides a defense against liability if the plaintiff’s intoxication was the proximate cause of his injury and he was more than 50% at fault. The Washington Supreme Court has ruled that a toxicology report alone isn’t enough to prove intoxication, the appeals court ruled, but Puyallup should have been able to present other evidence including Fite’s statement to his doctor.
“While the trial court stated that there was no other evidence of Fite’s intoxication, witness testimony suggested that he failed to stop before entering the crosswalk, and he also failed to make any move to avoid Mudd’s vehicle,” the appeals court said. “When coupled with the positive urine screening and his admission, and when viewed in the light most favorable to Puyallup, Fite’s behavior could have contributed to the accident.”
The judge’s jury instructions also should have included an explanation that complying with design regulations could be evidence the crosswalk was safe. By excluding this second part, the appeals court said, the trial judge left only the plaintiff’s theory of the case.
The judge also improperly allowed the plaintiff to enter police reports detailing two prior accidents at the same intersection after a Puyallup police witness testified he wasn’t aware of any other accidents there. The police reports should have been excluded as hearsay since they contain an officer’s subjective impression of events and don’t meet the “business records” exception to the hearsay rule.
Fite’s lawyer argued the city “opened the door” to the reports when its witness denied knowing about prior accidents, but the appeals court said that doesn’t allow for an exception to the hearsay rule. Neither accident involved a pedestrian. In one, a car was rear-ended by another vehicle, and in the other a bicyclist was hit after entering the street and swerving in front of a car.
Finally, the appeals court rejected Puyallup’s argument it was denied the chance to establish Fite’s comparative fault by showing he didn’t look before entering the crosswalk. While pedestrians must give vehicles time to stop, they don’t specifically have to look left or right, the appeals court ruled.
Written by Daniel Fisher