Amber L. Kappelman v. Theodore J. Lutz

Amber Kappelman was injured while riding on

Theodore Lutz's motorcycle when the motorcycle hit a deer. In Kappelman's

suit for damages, the trial court disallowed evidence that Lutz did not have a

motorcycle endorsement and violated the conditions of his instructional

permit. The court also gave an instruction to the jury on the lesser duty of

one confronted by a sudden emergency. The jury returned a verdict for Lutz.

The Court of Appeals affirmed. We affirm the decision of the Court of

Kappelman v. Lutz, No. 80996-8

Appeals.

Facts and Procedural History

Respondent Theodore Lutz took the petitioner Amber Kappelman1 for

a ride on his motorcycle at dusk on a state highway in an unincorporated area.

Lutz did not have a motorcycle endorsement on his license as required by

RCW 46.20.500(1), amended by Laws of 2009, ch. 275, § 4 (effective July

26, 2009) (redefining class of vehicles requiring special endorsement)). Lutz

had an instructional permit, which prohibited him from carrying passengers or operating a motorcycle during hours of darkness.2


The motorcycle was traveling over the 55 mile per hour speed limit when Lutz saw a deer off to his left, coming down toward the road.3 In less

than a second, the deer reached the shoulder of the road. Lutz realized the

deer was going to enter the road and swerved to the right of his lane, away

from the deer. He also began to decelerate by a combination of light braking

and downshifting. The deer entered the roadway, crossed the oncoming lane

of traffic, and entered Lutz's lane. At 50 feet from impact, Lutz realized he

was not going to be able to avoid hitting the deer and stood on the brakes

hard, causing the bike to skid. The motorcycle hit the deer. Between three

and four seconds elapsed from the time Lutz first saw the deer until impact.


Kappelman was injured and sued Lutz for damages. At trial, Lutz

moved to exclude any evidence that he did not have a motorcycle

endorsement and was operating the motorcycle in violation of the restrictions

on his instructional permit. He argued that the evidence was not relevant to

the determination of negligence and that its prejudicial effect outweighed its

probative value. In an oral ruling, the judge agreed and refused to allow

evidence related to Lutz's licensing status or permit violations.4


During trial, Lutz presented testimony regarding his experience riding

motorcycles and other off-road vehicles. He also testified that he did not

apply his brakes hard when he first saw the deer because he was concerned

about losing control of the motorcycle before reaching the deer. Lutz

requested a jury instruction on the duty of one confronted by an emergency, which the court gave. After trial, the jury returned a special verdict5 for Lutz and the court entered judgment accordingly.


Kappelman appealed, alleging numerous errors including that the trial

court erred in excluding the evidence relating to Lutz's license status and

permit violations, and erred in giving an emergency instruction to the jury. In

a published opinion, a divided panel of Division Three of the Court of

Appeals held that the trial court did not abuse its discretion, and affirmed.

Kappelman v. Lutz, 141 Wn. App. 580, 591, 170 P.3d 1189 (2007). A

petition for review was filed with this court, which was granted. Kappelman

v. Lutz, 164 Wn.2d 1001, 190 P.3d 54 (2008).


Standard of Review


A trial court's decision to exclude evidence will be reversed only where it has abused its discretion.6 State v. Lord, 161 Wn.2d 276, 294, 165 P.3d

1251 (2007). An abuse of discretion occurs when the trial court's decision is

based on untenable grounds or untenable reasons. See State v. Athan, 160

Wn.2d 354, 376, 158 P.3d 27 (2007).


We have not previously defined the proper standard of review for a

the judge, who then decides the legal effect of the verdict." Black's Law Dictionary 1697 (9th ed. 2009).


trial court's decision to give or refuse to give an emergency instruction. A

trial court's decision to give a jury instruction is reviewed de novo if based

upon a matter of law, or for abuse of discretion if based upon a matter of fact.

See State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). Unlike

the self-defense instruction at issue in Walker, the emergency doctrine has no

objective component; the trial court is not required to draw any legal

conclusions to determine whether the doctrine applies. Compare Walker,

136 Wn.2d at 772, with Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 197, 668 P.2d 571 (1983).7 The trial court must merely decide

whether the record contains the kind of facts to which the doctrine applies.

Therefore, we review the trial court's decision to give an emergency

instruction for abuse of discretion.


Analysis


We first decide whether the trial court abused its discretion by

excluding evidence that Lutz did not have a motorcycle endorsement and

violated the conditions of his instructional permit. We must also decide

whether the trial court abused its discretion in giving the jury an instruction on

emergency.


A. License Status


Holz v. Burlington N. R.R., 58 Wn. App. 704, 711-13, 794 P.2d 1304

(1990), is informative. Holz died when he unwittingly drove his motorcycle

at night into a black railroad tank car straddling an unlit road. Id. at 705.

Holz's family sued Burlington Northern for damages. Id. At the time of the

accident, Holz had neither a motorcycle endorsement nor a learner's permit.

Id. at 705-06.


Burlington Northern sought to prove contributory negligence. Prior to

trial, the plaintiffs moved to exclude any reference to the fact that Holz was

not licensed to ride a motorcycle. Id. at 705. Burlington Northern argued

that Holz's unlicensed status was relevant because it was a cause-in-fact of

the accident (i.e., without Holz's violation of the statute, there would have

been no accident). Id. at 705-06, 709. The trial judge excluded the evidence.

Id. at 705. The Court of Appeals affirmed, holding that the standard for such

decisions is whether there is a causal connection between the statutory violation and the accident.8 Id. at 708.


[T]he crucial question [is]: Would a person with a motorcycle endorsement, enabling that person to ride unsupervised and at night, have been any better off, i.e., any less likely to have suffered the same fate ... . .

If a rider with a motorcycle endorsement would have suffered the same fate, evidence that Jody Holz lacked an endorsement would be irrelevant.

Id. at 707-08 (citing ER 401).9


The Court of Appeals rejected Burlington Northern's cause-in-fact

argument as insufficient to establish a causal connection. Id. at 709. The

Holz court also distinguished foreign cases where evidence of license status

had been admitted, noting that in each case, the evidence supported an

inference that the alleged negligence was a proximate cause of the injury. Id.

at 710. And the court emphasized that in Holz's case there was no evidence

that a properly licensed operator would have been less likely to collide with

the tank car. Id. at 710. Rather, the crucial factor contributing to the accident

was poor visibility, which would have affected licensed and unlicensed riders

available. Id. at 23. In Mills v. Park, 67 Wn.2d 717, 409 P.2d 646 (1966), we held that evidence of a driver's unlicensed status was properly excluded where the record showed no causal connection between license status and the alleged negligence. Id. at 720-21.

equally. Id. at 711. The Court of Appeals held that because a properly

licensed rider would have suffered the same fate, the evidence of Holz's

unlicensed status was properly excluded. Id. at 713. The court also held that

even if the excluded evidence were relevant, it was inadmissible under ER 403 because it had the danger of unfair prejudice.10 Id. at 708.


The trial court in this case applied similar reasoning:


The general rule as set forth in Holtz [sic] is . . . the fact that somebody is not licensed . . . is irrelevant. . . . I can't find that the fact that Mr. Lutz was operating without a valid endorsement is really relevant to how he operated the motorcycle.


The real issue in this case is was he . . . negligent ... . . The fact that he wasn't fully qualified under state law as a motorcycle operator doesn't mean that he was or wasn't negligent.


Report of Proceedings, Motions in Limine (Sept. 20, 2005) at 15 (second and

fourth alterations in original). The Court of Appeals approved. See

Kappelman, 141 Wn. App. at 584-85 (quoting Holz, 58 Wn. App. at 707).


We caution that evidence of unlicensed status may be relevant in other

cases. Under our modern rules of evidence, the threshold to admit relevant

evidence is low and even minimally relevant evidence is admissible. State v.

Gregory, 158 Wn.2d 759, 835, 147 P.3d 1201 (2006). Another trial court

may have decided that evidence of Lutz's license violations was relevant.

But even relevant evidence must be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. Here, the trial

court recognized that this kind of evidence carries a very high potential of

unfair prejudice. And the probative value of such evidence was relatively low

because the jury heard other evidence relating to Lutz's skill and experience

operating motorcycles. The trial court's decision to exclude the evidence was

based on these legitimate considerations, and therefore we cannot say it was

based on untenable grounds.


B. Emergency Instruction


Jury instructions must be considered in their entirety. Brown, 100

Wn.2d at 194. The sudden emergency doctrine recognizes that when placed

in a position of danger, one does not always act as prudently as one might have had there been time for deliberation.11 Virgil G. Gillespie, Comment,

The Sudden Emergency Doctrine, 36 Miss. L.J. 392, 395 (1965). The

doctrine applies only in limited circumstances and recognizes the necessity of

quick choice between courses of action when such peril arises. Seholm v.

Hamilton, 69 Wn.2d 604, 605, 419 P.2d 328 (1966). Importantly, the

doctrine "comprehends the availability of and a possible choice between

courses of action after the peril arises. Otherwise, the doctrine blends into or

merges with the theory of unavoidable accident." Id. at 609. A defendant

who is suddenly confronted by an emergency through no fault of his own and

chooses a damaging course of action in order to avoid the emergency is not

liable for negligence although the particular act might constitute negligence had no emergency been present.12 Brown, 100 Wn.2d at 197-98. Even

where there is conflicting evidence, the emergency instruction may be proper.

Kappelman, 141 Wn. App. at 589 (citing Tuttle v. Allstate Ins. Co., 134 Wn.

App. 120, 131, 138 P.3d 1107 (2006)).

On the facts of this case, the trial court did not err in giving the

§ 33, at 196-97 (5th ed. 1984)).


emergency instruction. Deer are quick, erratic, and unpredictable; they may

run to the road and then across or suddenly freeze. The appearance of a deer

on the road can happen suddenly -- as it did here -- and is rare enough that a driver might not reasonably anticipate its occurrence.13 The trial court's

decision to give the emergency instruction here was not an abuse of

discretion.

* * *

See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=809968MAJ

We stress that the sudden emergency instruction is not appropriate in every situation where a driver's way is obstructed. When drivers take to the roads, they assume the risks that are inherent to the task at hand. Drivers faced with reasonably anticipated risks should be held to an ordinary negligence standard when determining fault.