Did This Washington Court Get it Wrong?

Did This Washington Court Get it Wrong?


Trial court judges do not always get it right when deciding what evidence may be admitted at trial.  Sometimes a court will make rulings which create prejudice against one of the parties.  As such, counsel must always be vigilant in making a record to appeal these decisions subsequent to a negative outcome.



The trial court in Fite v Mudd[i] made significant rulings on evidence motions prior to and during trial.  The case stemmed from Lee Mudd, the defendant, hitting plaintiff as plaintiff rode his skateboard through a crosswalk.  Plaintiff also named the city a defendant (“CD”) for unsafe design of the crosswalk.  The only eyewitness to the event, Kelly Boutte, provided an initial sworn statement, which included testimony regarding plaintiff not stopping, not looking left, and not looking right before entering the crosswalk.  The statement was later amended to state the witness did not recall if plaintiff looked left or right.  At the hospital, plaintiff tested positive for THC and admitted he was “high on cannabis” while riding his skateboard.

On plaintiff’s motion for partial summary judgment prior to trial, the court precluded CD from using the intoxication affirmative defense under RCW 5.40.060, ruling the affirmative defense was factually unsupported.  However, the court denied plaintiff’s motion as far as establishing no comparative fault, ruling “[plaintiff] was not specifically required to look right and look left before entering the crosswalk, only to look for approaching vehicles.”[ii]

Plaintiff filed a motion in limine moving to exclude all evidence of alcohol or drug use (including his statement to his doctor) at trial, which the court granted.  One of CD’s motions in limine was to exclude two police reports referencing two other accidents, which had occurred in the same crosswalk.  During trial, the court admitted the police reports under the business record rule, after plaintiff asked the officer if he had studied the excluded police reports.  The officer did not recall the previous incidents.  Plaintiff then offered the two reports as business records, which the court admitted over CD’s hearsay objection.

Later during the trial, CD requested the opportunity to impeach Kelly Boutte with her prior statement.  However, the court precluded CD from impeaching the only witness to the accident, stating the prior statement conflicted with the summary judgment order ruling plaintiff did not have a duty to look left or right.  After the parties rested, the court instructed the jury to consider the “totality of the circumstances” when determining whether the crosswalk was safe.  The court then inserted, “A roadway or crosswalk can be unsafe for ordinary travel even when there is no violation of statutes, regulations or guidelines concerning roadways and crosswalks”[iii] into the instruction.  CD appealed on all of these issues.



Comparative Fault

A pedestrian may generally assume a driver will recognize the pedestrian’s entry into a crosswalk, but a pedestrian may not suddenly enter a crosswalk without providing time for vehicles to stop.[iv] The trial court precluded CD from arguing plaintiff did not look left and right, but CD was never precluded from “…the opportunity to argue [plaintiff] failed to look before entering the crosswalk.”  Washington case law has never specified how a pedestrian must “look” prior to entering a crosswalk.  The Court of Appeals found the trial court did not err with precluding the specific “did not look left and right” language in argument, since it allowed CD to argue plaintiff “did not look” prior to entering the crosswalk.



“RCW 5.40.060 provides a complete defense for liability if a defendant can show the plaintiff’s intoxication was the proximate cause of the injury and the plaintiff was more than 50 percent at fault.”[v]  In Washington, the DUI statute has two prongs: per se under the influence (BAC of .08 g/210L alcohol or 5 ng/ml THC) or affected by intoxicating liquor, marijuana, or any drug.  A showing of intoxication can be by admission,[vi] but a toxicology report alone is insufficient – the statute examines a person’s behavior.  Here, there was an admission and a positive toxicology report.  The Court of Appeals found the admission itself may have satisfied Peralta, and there was sufficient evidence to create an issue of fact for the jury relating to the affirmative defense.


Hearsay Records

The business records exception to the hearsay prohibition states as follows:

A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.[vii]

“Police reports do not satisfy the exception because they require the officer creating the report to produce a subjective summary of the officer’s investigation.”[viii]  However, when one party opens a door on a subject, the opposing party may request previously excluded evidence be admitted on cross examination.[ix]  Here, CD did not open the door – it merely questioned the officer as to his memory.  Plaintiff opened the door when he questioned the officer’s review of the reports, and then requested to admit the reports into evidence. The Court of Appeals found “…a party may not open the door through strategic questioning of a witness and then seek to admit excluded evidence based on its own questioning.”[x]


Witness Impeachment

As a general rule, a witness may be impeached using a prior inconsistent statement.[xi]  Here, the trial court denied CD its opportunity to impeach Kelly because the summary judgment order stating plaintiff did not have a duty to look left and right conflicted with Kelly’s prior statement.  This was error.  The Court of Appeals found CD should have been allowed to examine Kelly about her prior statements and question her regarding credibility.


Crafted Jury Instruction

A trial court has the latitude to craft a jury instruction rather than using a pattern instruction.  However, “[w]here an instruction focuses the jury’s inquiry on one theory of the case over another, the trial court abuses its discretion.”[xii]  Here, the trial court emphasized plaintiff’s theory of the case with the second sentence: “A roadway or crosswalk can be unsafe for ordinary travel even when there is no violation of statutes, regulations or guidelines concerning roadways and crosswalks.”[xiii]  The emphasis would have been neutralized if the trial court had included “language stating that compliance with statutes, regulations, or guidelines can be evidence the crosswalk was safe.”[xiv]  Failure to do so was error.



Often, attorneys like to focus on the merits of a case.  Naturally, merits are the fun part, the facts, the puzzle, recreation of the incident. But procedure is where winning begins.  Without accurate and fair rulings, the merits become almost meaningless in front of a jury, especially if you are not permitted to introduce significant pieces of evidence.

Judges make mistakes.  CD had many speed bumps along the road of litigation.  However, counsel appropriately objected and pushed forward, then subsequently combined the differences with the court into an appeal.  Preserving the record for appeal may put you in a position for a new trial, as was the case for CD in Fite.  Procedure is foundational and should be among the initial thoughts when developing strategy for trial.





[i] Fite v. Mudd, 19 Wash.App.2d 917498 P.3d 538 (2021).

[ii] Id (emphasis in original).

[iii] Id.

[iv] Xiao Ping Chen v. City of Seattle, 153 Wn. App. 890, 906, 223 P.3d 1230 (2009).

[v] Id, citing Peralta v. State, 187 Wn.2d 888, 893-94, 389 P.3d 596 (2017).

[vi] Peralta v. State, 187 Wn.2d 888, 893-94, 389 P.3d 596 (2017).

[vii] RCW 5.45.020.

[viii] In re Detention of Coe, 175 Wn.2d 482, 505, 286 P.3d 29 (2012).

[ix] State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969).

[x] Fife.

[xi] State v. Garland, 169 Wn. App. 869, 885, 282 P.3d 1137 (2012).

[xii] Cornejo v. State, 57 Wn. App. 314, 320-21, 788 P.2d 554 (1990) (repeating one party’s theory in the instruction emphasized the theory).

[xiii] Fite v. Mudd, 19 Wash.App.2d 917498 P.3d 538 (2021).

[xiv] Fite.

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