Opinion
No. 58544-4-I.
October 29, 2007.
Appeal from a judgment of the Superior Court for Island County, No. 02-2-00360-0, Alan R. Hancock, J., entered July 7, 2006.
Affirmed by unpublished opinion per Baker, J., concurred in by Coleman and Agid, JJ.
Edward Gregoire was found hanging in a jail cell at the Oak Harbor jail. An action for wrongful death and for state and federal constitutional violations was brought by Tanya Gregoire in her capacities as personal representative of decedent's estate and guardian ad litem for Brianna Gregoire, decedent's minor child. The constitutional claims were dismissed on summary judgment. A jury found that the city of Oak Harbor was not liable for Gregoire's death. We affirm.
I.
Edward Gregoire was arrested on outstanding warrants and placed in the patrol car of State Trooper Harry Nelson for transport to the Oak Harbor jail. During transport, Gregoire kicked the shield separating the passenger compartment in the patrol car. Concerned that Gregoire might be violent, Trooper Nelson called dispatch to have another officer meet him at the jail. When they arrived, Trooper Wernecke was waiting. Nelson unbuckled Gregoire's seatbelt, and Gregoire stepped out of the vehicle. As Nelson bent down to pick up Gregoire's hat from inside the car, Gregoire attempted to run away. Nelson grabbed Gregoire's shirt, which tore as Gregoire tried to run. Gregoire fell to the ground, and Nelson and Wernecke restrained him. Oak Harbor Police Officer William Wilkie arrived to assist Nelson and Wernecke. Nelson asked Wilkie to get flex cuffs to restrain Gregoire's legs, because he was struggling and trying to run away. Wernecke struck Gregoire on the thigh with his baton to get Gregoire to stop kicking.
Inside the jail, Gregoire was placed into a restraint chair in a holding cell. Trooper Nelson and Trooper Wernecke left. Gregoire eventually calmed down, and removed himself from the restraint chair. Gregoire assured Officer Nordstrand that he would remain calm, and Nordstrand removed the flex cuffs from Gregoire's ankles.
Gregoire was moved from the holding cell to a regular cell. Sometime later, Gregoire was observed crying in his cell. Approximately ten minutes later, Gregoire was found hanging from a sheet, which was tied to the ventilation grate of the cell. The jailer attempted to call for help using the building intercom system and panic alarm. He ran to his desk to retrieve the key to open Gregoire's cell and a pair of scissors to cut the sheet.
Officer Slaman, Sergeant Dyer, Captain Wallace, and Detective Wilkie all responded to the alarm. Officer Slaman called for an ambulance on his radio. Slaman and Dyer checked for Gregoire's pulse, but observed no pulse or breathing. Captain Wallace decided not to initiate CPR. However, when paramedics arrived, they observed Gregoire's body was still warm, and administered CPR. After about 15 to 20 minutes, paramedics observed a faint carotid pulse. CPR was administered for approximately 25 minutes before taking him to the hospital. Emergency room doctors observed Gregoire was in a "premorbid state." Although resuscitative measures were attempted, Gregoire was pronounced dead shortly after arrival.
Tanya Gregoire originally brought federal civil rights claims and a state law wrongful death claim in the United States District Court for the Western District of Washington against Oak Harbor and the various jailers and officers who had dealt with Gregoire. That court granted summary judgment to all defendants regarding the federal civil rights claims, to Trooper Nelson and Trooper Wernecke regarding the state law claims, and declined to assert supplemental jurisdiction over state law claims against the remaining defendants.
Suit was brought in the superior court for Island County, alleging wrongful death, state constitutional claims, civil rights claims, and negligence. The trial court dismissed the federal claims based on res judicata and dismissed the state constitutional claims for lack of a private cause of action. A jury trial was held on the state wrongful death claim. The jury found that Oak Harbor was negligent, but that its negligence was not a proximate cause of the death of Gregoire.
I. Summary Judgment
Tanya Gregoire contends that the trial court erred when it granted summary judgment in part to Oak Harbor and other defendants. In reviewing an order for summary judgment, this court engages the same inquiry as the trial court.
Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 630, 71 P.3d 644 (2003) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)).
The trial court granted summary judgment to Oak Harbor regarding all federal civil rights claims and all Washington constitutional claims, reserving the remaining issues for a separate order. The trial court then issued a letter decision denying summary judgment to defendants on plaintiff's negligence claim.
Ms. Gregoire first brought this lawsuit in the United States District Court for the Western District of Washington. Judge Lasnik dismissed all federal claims with prejudice. Any federal claims relating to this matter were thereafter barred by the doctrine of res judicata. The trial court properly dismissed Ms. Gregoire's federal claims.
The trial court dismissed Ms. Gregoire's state constitutional claims because there is no private right of action for those claims. In her complaint, Ms. Gregoire asserted claims for violations of article I, section 3, 10 and 14 of the Washington Constitution. Ms. Gregoire cites no authority to support a damages action for such violations. Washington courts have consistently declined to judicially establish a cause of action for damages based on constitutional violations without the aid of augmentative legislation.
Blinka v. Wash. State Bar Ass'n, 109 Wn. App. 575, 591, 36 P.3d 1094 (2001).
Ms. Gregoire argues that the cruel and unusual provisions of the Washington Constitution are more protective than the Eighth Amendment to the United States Constitution. However, Ms. Gregoire does not explain why this entitles her to a private cause of action for those alleged violations. Ms. Gregoire cites Darrin v. Gould for the proposition that individuals have standing to sue for state constitutional violations. However, Darrin was not an action for damages, but rather a suit to enjoin defendants from enforcing discriminatory rules and from interfering with the Darrin girls' participation on a school football team.
Plaintiff cites State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980). Fain challenged his sentence based on Const. art. I, § 14. Our supreme court held that Fain's sentence was disproportionate to the seriousness of his crimes, and therefore cruel punishment in violation of Const. art. I, § 14. Fain was not an action for damages.
85 Wn.2d 859, 540 P.2d 882 (1975).
Darrin, 85 Wn.2d 862.
Ms. Gregoire also incorrectly asserts that the trial court dismissed her claim of negligence based on violation of a duty to Gregoire. In fact, the trial court denied summary judgment to Oak Harbor regarding the negligence claim.
We affirm the trial court's ruling granting partial summary judgment.
Juror Bias
Ms. Gregoire contends that the trial court abused its discretion in failing to excuse prospective juror 12 for cause. A trial court's denial of a juror challenge for cause is reviewed for manifest abuse of discretion, with deference given to the trial court's decision regarding juror bias.
State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991).
Ottis v. Stevenson-Carson Sch. Dist. No. 303, 61 Wn. App. 747, 753-54, 812 P.2d 133 (1991).
Ms. Gregoire's argument is based on certain voir dire answers given by the juror: that she was sympathetic to law enforcement, would be "difficult to sway," and that she was "very over here right now," indicating the Oak Harbor table. However, the juror also indicated that she had "an open mind about everything," would "listen to everything," and that she could be fair and open-minded to both sides.
This court must take the evidence in the light most favorable to the prevailing party below, including deferring to the trial court's decision regarding the credibility of the prospective juror and the trial judge's choice of reasonable inferences. Here, the juror indicated that she was able to be impartial. It was not an abuse of discretion to retain this juror.
Ottis, 61 Wn. App. at 755-56.
Juror Misconduct
Ms. Gregoire contends that juror 5 should have been dismissed because he concealed a bias during voir dire. To obtain a new trial based on juror misconduct, Ms. Gregoire must demonstrate that juror 5 failed to disclose material information during voir dire, and that a truthful disclosure would have provided a basis for a challenge for cause. A challenge for cause may be based on actual or implied bias. A trial court's decision to deny a new trial will be disturbed only for a clear abuse of discretion or when it is predicated on an erroneous interpretation of the law.
State v. Cho, 108 Wn. App. 315, 321, 30 P.3d 496 (2001).
RCW 4.44.170(1), (2); RCW 4.44.180.
Cho, 108 Wn. App. at 320.
Counsel for Ms. Gregoire discovered a blog written by juror 5, in which he had written about his experiences dealing with suicide in his job as a youth minister. During jury deliberations, Ms. Gregoire brought the blog to the attention of the trial court and asked that the juror be excused, arguing that the blog was inconsistent with the juror's questionnaire. The juror had answered "no" to the question asking whether the prospective juror or any close friends or family members had ever been depressed or suicidal. A prospective juror is not obligated to volunteer information or provide answers to unasked questions. The trial judge determined that the blog comments regarding his encounters with suicide in his work as a youth minister were not inconsistent with the juror's voir dire responses. Even if the juror had disclosed the information contained in his blog during voir dire, it would not have entitled Ms. Gregoire to a challenge for cause, because the information did not indicate bias. At most, the information would have given Ms. Gregoire reason to further question juror 5 during voir dire about his opinions regarding suicide.
Cho, 108 Wn.App. at 327.
The trial court's decision to retain juror 5 without interviewing him was not an abuse of discretion.
Jury Instructions
We review jury instructions de novo, and an instruction that contains an erroneous statement of law is reversible error where it prejudices a party. Jury instructions are sufficient if they allow parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the law to be applied.
Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265, 22 P.3d 791 (2000).
Cox, 141 Wn.2d at 442.
Ms. Gregoire contends that the trial court failed to instruct the jury regarding a "special relationship," and that the trial court erred in giving instructions 9, 16, 18, 19, 20, and 21 regarding contributory negligence, comparative fault, and assumption of risk. She further contends that instruction 17 and answer to juror question 1 were incorrect statements of law regarding proximate cause, and that the court erred by not giving Gregoire's proposed proximate cause instruction, WPI 15.02. We need not consider contributory negligence or comparative fault, because the jury did not reach those issues.
6 Washington Pattern Jury Instructions: Civil 15.02 (5th Ed. 2005) (WPI).
Ms. Gregoire argues that the trial court erred by not giving an instruction regarding a special relationship between jailer and inmate. The threshold determination in a negligence action is whether a duty of care is owed by the defendant to the plaintiff. Under the public duty doctrine, a municipality is liable in tort only if it breaches a duty owed to the individual plaintiff, rather than to the public as a whole. A special relationship establishes the existence of such a duty to the plaintiff. The custodial relationship between a jailer and an inmate is such a special relationship.
Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988).
Taylor, 111 Wn.2d at 163.
Caulfield v. Kitsap County, 108 Wn. App. 242, 255, 29 P.3d 738 (2001).
Here, the jury was instructed that Oak Harbor had a duty to Gregoire. Instruction 13 stated, "[t]he City of Oak Harbor, in operating and maintaining a holding facility or jail, has a duty to provide for the mental and physical health and safety needs of persons locked in the jail." The jury was accurately informed of the applicable law.
Ms. Gregoire argues that where a special relationship creates an affirmative duty of care, assumption of risk does not apply. However, Ms. Gregoire does not cite any authority that supports this contention. Where no authority is cited, the court may assume that counsel, after diligent search, has found none.
State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978) (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
The court instructed the jury that "[a] person impliedly assumes a risk of harm, if that person knows of the specific risk associated with a course of conduct and/or an activity, understands its nature, voluntarily chooses to accept the risk by engaging in that conduct/activity, and impliedly consents to relieve the defendant of a duty of care owed to the person in relation to the specific risk." Ms. Gregoire does not contend that this is an inaccurate statement of the law regarding assumption of risk, and she has not provided authority for her contention that the instruction should not have been given.
Ms. Gregoire argues that Oak Harbor presented no evidence that Gregoire made a knowing, understanding, and conscious decision to relieve Oak Harbor of its duty. However, whether Gregoire had the requisite knowledge and whether his conduct was voluntary are questions for the jury, unless reasonable minds could not differ. The evidence presented in this case is not part of the record on appeal. Thus, there is no basis in the record for this court to reverse for insufficiency of the evidence.
Egan v. Cauble, 92 Wn. App. 372, 377-78, 966 P.2d 362 (1998).
Next, Ms. Gregoire contends that the court erred in instructing the jury regarding proximate cause. The court's instructions regarding proximate cause included WPI 15.01 in the jury instructions, and WPI 15.01.01 in response to a jury question. Ms. Gregoire argues that, when read in context with the other instructions, these instructions set up the suicide itself as a barrier to finding proximate cause. Ms. Gregoire claims "[n]o jail can be unaware of the risk of jail suicide." However, whether a risk is foreseeable is a question for the jury. Ms. Gregoire had an opportunity at trial to argue that the suicide was foreseeable.
Hunt v. King County, 4 Wn. App. 14, 20, 481 P.2d 593 (1971).
Ms. Gregoire also argues that the proximate cause instruction she proposed, WPI 15.02, was more appropriate than the given instruction. However, the trial court determined that, based on the facts of this case, WPI 15.02 was not appropriate. This court is not in a position to second-guess the trial court's interpretation of facts, especially where the evidence presented at trial is not part of the record. The instructions were a proper statement of the law and did not prevent the jury from finding proximate cause.
The jury instructions properly stated the law, were not misleading, and allowed Ms. Gregoire to argue her case. The jury was instructed that Oak Harbor had a duty to provide for the health and safety needs of persons locked in its jail. The instructions correctly informed the jury of the law regarding assumption of risk and proximate cause.
We affirm the trial court's jury instructions.
Motion in Limine
Ms. Gregoire assigns error to the trial court's denial of her motion in limine to exclude evidence and argument relating to "contributory fault." Ms. Gregoire provides no argument or authority regarding this assignment of error, other than her arguments regarding the alleged errors in the jury instructions, where she claims that contributory negligence does not apply in this case. Whether a plaintiff is capable of exercising reasonable care for contributory negligence is a question of fact for the jury. It was not an error of law for the trial court to allow evidence relating to contributory negligence.
Hunt, 4 Wn. App. at 25-26.
We affirm the trial court's denial of the motion in limine regarding contributory fault.
AFFIRMED.
WE CONCUR: