Washington law prohibits an award of damages if the claimant was drunk and more than 50 percent at fault for causing the damages. Pursuant to the Revised Code of Washington (“RCW”) section 5.40.060(1) is an affirmative defense, and provides “the person injured . . . was [(1)] under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury . . . and [(2)] that such condition was a proximate cause of the injury . . . and [(3)] the trier of fact finds such person to have been more than fifty percent at fault.”

Ms. Gerlach went to a birthday party in October of 2012. After the party, she, her then-boyfriend (Miller), and two other friends (Brodie and Colin) went to a bar. After the bar, the group returned to Miller’s apartment at Cove Apartments (Cove). Miller, Colin, and Gerlach went up to the second-story apartment and Brodie stayed outside to smoke. While smoking, Brodie heard a sharp snap and turned to see Gerlach plummeting headfirst from the balcony of Miller’s apartment onto the concrete steps below. The decayed balcony railing fell beside her. Brodie called 911. Paramedics arrived to find her unconscious and unresponsive.

Gerlach sued Cove under the Residential Landlord-Tenant Act (RLTA), Miller’s lease agreement, and the common law, claiming Cove was negligent in maintaining the balcony railing. The parties dispute how Gerlach fell. Gerlach argued she was standing on the balcony and leaning on the railing when it gave way, while Cove argued Gerlach likely fell while trying to climb over the railing onto the balcony. However, no one actually saw Gerlach fall, and Gerlach herself has no recollection of that evening.

Gerlach had a BAC of 0.219 when she arrived at the hospital almost an hour after her fall.

Cove moved for summary judgment, arguing it did not owe Gerlach a duty under Miller’s lease or the RLTA. The trial court granted Cove’s motion on the lease agreement issue, but denied the motion on the RLTA issue. Thus, Gerlach’s RLTA and common law claims proceeded to trial.

Cove sought to introduce evidence of Gerlach’s BAC level at trial, but on a binding admission of Gerlach’s intoxication, the court excluded the level of Gerlach’s intoxication. The court found Gerlach’s BAC level to be more prejudicial than probative, as it believed the jury would likely focus on Gerlach’s level of intoxication, rather than her acts or omissions, if any, in causing her injuries.

The jury found both Cove and Gerlach were contributorily negligent, assigning Cove 93 percent of the fault and Gerlach 7 percent. Without objection from either party, the jury used a verdict form not distinguishing between negligence premised on Cove’s common law duties and negligence premised on Cove’s duties under the RLTA. Cove appealed, assigning error to the denial of summary judgment on Gerlach’s RLTA claims, the exclusion of the BAC evidence, and other issues. The Court of Appeals reversed and remanded for a new trial.

Under Evidence Rule (“ER”) 403, even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Evidence likely to stimulate an emotional response rather than a rational decision creates a danger of unfair prejudice. The Washington Supreme Court found the trial court appropriately determined Cove’s proffered evidence was only minimally probative of the issues relevant to its affirmative defense and found the relative risk of prejudice against Gerlach was unacceptably high. Because the trial court’s decision was within the bounds of its considerable discretion, the Washington Supreme court agreed with Gerlach and reversed the Court of Appeals.

The Washington next evaluated Gerlach’s claims under the RLTA. Under RCW 59.18.030, the RLTA requires tenants to pay rent on time, keep their units clean, and more. Under RCW 59.18.160, the RLTA requires landlords to “keep the premises fit for human habitation” by maintaining “the structural components” of the dwelling unit “in reasonably good repair so as to be usable.” Although the Washington Supreme court has never decided whether or to what extent landlords are liable for violations under the RLTA, the Washington Court of Appeals has issued a series of decisions adopting a section of the Restatement, and holding that “tenant[s have] a remedy, supported by public policy, through which he or she may recover for injuries caused by the landlord’s breach of the RLTA.”

Here, Gerlach was not a tenant, and thus was unable to bring an action against Cove under the RLTA. However, she did have valid claims under the common law. Because neither party objected to the jury verdict form utilized, not distinguishing between negligence premised on Cove’s common law duties and negligence premised on Cove’s duties under the RLTA, the Washington Supreme Court upheld the verdict, as it included a verdict under the common law. This crucial mistake by defense counsel cost Cove another bite at the apple.

Takeaway

The dissent in this case disagreed with the exclusion of Gerlach’s BAC level from evidence. I agree with the dissent. Many studies have been done on the varying levels of intoxication and the effects exhibited by a person at each level. The jury should have been able to hear the BAC evidence to fully understand Gerlach’s level of intoxication. I believe the jury would have made a rational than an emotional decision, regardless of Gerlach’s BAC level. Although high, a 0.219 BAC does not shock the conscience and does not elicit an emotional response.

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