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From the desk of Tom McCurdy: Landowners owe certain duties to individuals present on their land. The extent of the duty depends on whether the individual is an invitee, a licensee, or a trespasser. Regardless of status, must a landowner warn of dangers on another’s land? Read on to find out.

Content Types Archives: Case Updates

Washington Case Law Update: Washington Court of Appeals Confirms That a Landowner Need Not Warn a Licensee of Dangers on Property They Do Not Own

From the desk of Tom McCurdy: Landowners owe certain duties to individuals present on their land. The extent of the duty depends on whether the individual is an invitee, a licensee, or a trespasser. Regardless of status, must a landowner warn of dangers on another’s land? Read on to find out.

Case Pointer: In this premises liability case, a young girl was camping with a youth group near Lake Cle Elum when she tragically drowned while swimming. Her youth group was camping on land adjacent to the lake, which was owned by a third party. After her death, her estate filed suit against the landowners of the campsite, arguing that they had a duty to warn the girl of the dangers of the lake. The trial court granted the landowners’ motion for summary judgment, holding that landowners have no duty to warn licensees of dangers on land owned by others. The Washington Court of Appeals affirmed, holding that landowners have no duty to warn guests of dangers present on the land of another. Although unreported, this case provides valuable insight on limitations of the scope of a landowner’s duty to warn licensees about dangers on adjacent property.

Bethay et al. v. Parker et al., Wash. Ct. of Appeals, No. 35541-1-III (October 2, 2018) (unpublished).

In July 2015, Shawn Parker and KBSM, LLC (“Defendants”) allowed a youth group to camp on land they owned near Lake Cle Elum. Defendants had been allowing the youth group to utilize the land for camping trips free of charge for several years without incident. However, on July 27, 2015, Christine Bethay drowned while swimming in nearby Morgan Creek Cove. Four counselors from the youth group led fifteen children from the camping area on Defendants’ land across a federally owned strip of land and down into the cove to swim. Christine Bethay was among those children and, while the...

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Attorney Profile Case Update Template - Josh

Washington Case Law Update: Washington Court of Appeals Affirms Summary Judgment Against Unrepresented Plaintiff for Failing to Follow Procedural Rules

From the Desk of Joshua P. Hayward: Unrepresented parties occasionally get the benefit of the doubt from trial courts when they miss deadlines. Often, an unrepresented party must miss several deadlines and/or court appearances before their case is dismissed. How much leeway must the trial court give an unrepresented plaintiff before the Court of Appeals upholds a dismissal? Read on to find out.

Claims Pointer: In this slip and fall case, an unrepresented plaintiff brought a premises liability claim against WinCo foods after falling in one of its stores. After missing two deadlines to file responses to WinCo’s Motion for Summary Judgment, the judge denied plaintiff’s requested continuance and granted WinCo’s Motion for Summary Judgment. The Court of Appeals upheld the dismissal. This case, although unreported, provides guidance on how much leeway a trial judge needs to give an unrepresented party.

George v. Winco Foods, LLC, No. 76661-9-I, 2018 Wash. App. LEXIS 2200, (Ct. App. Sep. 24, 2018) (unpublished).

In June of 2015, Margaret George (“Plaintiff”) slipped and fell in the aisle of a WinCo Foods (“WinCo”) in Washington. On May 5, 2016, Plaintiff filed suit, claiming that she slipped on a “clear waxy substance” and was injured as a result. The court set a discovery cutoff date of March 13, 2017. During the course of litigation, Plaintiff became an unrepresented party (The opinion is unclear on when this occurred).

Prior to the discovery cutoff, WinCo filed a Motion for Summary Judgment (“MSJ”), relying on an affidavit provided by its employee, Steven Kneller. The affidavit established that Plaintiff had spoken with a WinCo employee sometime after the incident and said that “she didn’t see anything on the floor.” Additionally, Mr. Kneller stated that he had inspected the area...

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Attorney Profile Case Update Template - Josh

Oregon Case Law Update: Oregon Court of Appeals Identifies Threshold Level of Evidence Required to Prove an Injury is Permanent

From the Desk of Joshua P. Hayward: When bringing personal injury suits, plaintiffs often allege that the injuries they have suffered are permanent. What evidence is required for plaintiffs to prove that the alleged injuries are permanent? Read on to find out.

Claims Pointer: In this personal injury case, the Oregon Court of Appeals held that the plaintiff failed to provide sufficient evidence from which the jury could have found that the claimed injury was permanent. The court further held that the trial court’s jury instruction on the plaintiff’s alleged permanent injury “substantially affected defendant’s rights” and warranted a reversal of the trial court’s decision.

Elan v. Tate, 294 Or App 76 (September 12, 2018).

Plaintiff David Elan (“Plaintiff”) was in his late seventies at the time of the accident. Plaintiff was walking on the side of the road when he was struck in the shoulder by the side-view mirror of a vehicle driven by Defendant Alana Lynn King Tate (“Defendant”). The impact caused Plaintiff to spin, fall over and suffer injuries serious enough to warrant an overnight stay at the hospital. Plaintiff filed suit, alleging he suffered a permanent head injury as a result of Defendant’s negligence. The case went to trial eighteen months after the accident.

To prove the extent of his injuries, Plaintiff relied on the testimony from a retired emergency room physician (Barmanche), a physical therapist (Schaible), and himself. Plaintiff testified that, at the time of the trial, “he still had headaches, mood problems, and memory issues.” Schaible testified that he treated Plaintiff a week after the accident for “symptoms of a concussion sustained during the crash” including “sensitivity to sound, shoulder pain and reduced range of motion in his neck, headaches, vision issues, and ‘obvious memory...

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Oregon Case Law Update: Oregon Court of Appeals Provides Guidance on a PIP Insurer’s Duty to Promptly Pay PIP Benefits after Receiving Proof of Loss

From the desk of Cliff J. Wilson: Under Oregon’s no-fault personal injury protection (“PIP”) statute, insurers must provide certain benefits (e.g. medical expenses and wage loss) to insured drivers involved in car accidents, without regard to fault. In the case of PIP medical benefits, the statute requires that benefits must be paid “promptly” after receiving proof of loss. The statute also provides that PIP medical expenses are deemed “reasonable and necessary” unless the PIP insurer provides the medical provider notice of denial within 60 days. Does the statute require that the PIP insurer pay the expenses within 61 days, though? Further, is the insured excused from complying with the terms of the insurance policy if the insurer does not pay the PIP medical expenses within 61 days? Read on to find out.

Claims Pointer: In this case, the Oregon Court of Appeals held that an insured party’s attendance at an examination under oath (“EUO”) was a condition precedent to filing an action for breach of contract. The court also held that the insurer’s failure to pay or deny benefits within 60 days of receiving a proof of loss was not a material breach of the insurance policy. Importantly, the court relied on this holding to reject Plaintiff’s argument that an insurer’s failure to pay or deny benefits within 60 days made such benefits immediately payable 61 days after receiving the proof of loss.

Moore v. Allstate Ins. Co., 293 Or App 690 (September 6, 2018)

Under Oregon’s PIP statute, a driver involved in a motor vehicle accident is entitled to receive up to $15,000 from their own insurance provider for “[a]ll reasonable and necessary expenses…incurred within one year¹ after the date of the person’s injury…” The insurer is required to provide such benefits “promptly after proof of...

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Attorney Profile Case Update Template - Josh

Oregon Case Law Update: Servicemember’s Wrongful-Death Claim Tolled While on Active Duty

From the Desk of Joshua P. Hayward: Federal law tolls the statute of limitations for military members while they are on active duty. But does this law extend to members of the military who bring a claim as a personal representative instead of bringing their own claim? Read on to find out.

Claims Pointer: In this case arising out of a death caused by an exploding tire, the Oregon Court of Appeals held that the statute of limitations on a wrongful-death claim was tolled when the servicemember, acting as personal representative, sued within three years of being discharged from active duty but beyond three years since the date of injury. This case defines the scope of the protection servicemembers receive under the federal tolling statute.

Wilcox v. Les Schwab Tire Centers of Oregon, Inc., 293 Or App 452 (August 22, 2018).

In March 2010, Plaintiff Scott Wilcox (“Plaintiff”) and his wife were active duty servicemembers in the United States Air Force. While on leave, the two were traveling in Plaintiff’s vehicle and noticed that the vehicle was shaking. After stopping, the couple was advised to replace a tire which had originally been purchased from Les Schwab Tire Centers of America, Inc. (“Les Schwab”). After replacing the problem tire, Plaintiff’s wife placed the tire on her lap while they drove in search of a mechanic. The tire exploded in Plaintiff’s wife’s lap, causing serious injuries which eventually led to her death in April of 2010. Plaintiff was discharged from active duty in September 2011.

In September 2014, Plaintiff, acting as personal representative, brought a wrongful-death lawsuit against Les Schwab claiming products liability and negligence. In Oregon, the statute of limitations on wrongful-death claims is three years. See ORS 30.020(1), ORS 30.905(4). Because more than three years had elapsed since his wife’s death in 2010, Les Schwab filed a motion with the...

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Ashley Nagrodski

Washington Case Law Update: Policy Limit Settlement Exposes Insurer to Bad Faith Claim

From the desk of Ashley Nagrodski:  Insurance policies are commonly structured to limit the insurer’s duty to defend up to the point when policy limits are exhausted.  But when there are multiple claimants and the insurer settles the largest claim for policy limits, can the insurer be subject to bad faith for refusing to defend from subsequent claimants because the policy is exhausted? Read on to find out.

Claims Pointer: In this case, arising out of a 16-vehicle traffic accident and ultimately resulting in more than one claim, the insurer declined to arrange a settlement where the insured would contribute $1,000 towards a $1 million settlement to avoid exhausting policy limits.  The insured alleged bad faith after the insurer refused to defend subsequent claims on the basis that policy limits had been exhausted.  The Washington Court of Appeals held that the insurer was subject to bad faith by placing its own interests above the insured’s interests when the insurer settled the largest claim for policy limits and then denied a defense for subsequent claims.  This case serves as a reminder of the importance of carefully structuring and negotiating settlement agreements involving more than one claim when policy limits are at play.  Settlement negotiations should involve consideration of whether there could be future, subsequent claims before the policy limit is exhausted.

AP Transport v. Zurich Am. Ins. Co., No. 76479-9-I, Washington Court of Appeals Div. I (August 13, 2018) (unpublished).

On July 20, 2011, Joginder Singh dba AP Transport’s (“Plaintiff”) employee caused a 16-vehicle traffic accident while operating Plaintiff’s semi-truck.  The employee approached traffic at full speed and, at the last moment, swerved onto the adjacent lane, colliding with a logging truck.  The impact caused both trucks, their trailers, and cargo to strike other vehicles,...

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Jeff Eberhard Managing Partner

Court of Appeals Confirms Stance on Complicity Doctrine in Case Involving a Passenger Injured by Intoxicated Driver

From the Desk of Jeff Eberhard: Recently, in Mason v. BCK Corporation, 292 Or App 580 (2018), the court held that an injured plaintiff could not recover against a bar because the plaintiff was unable to demonstrate that he did not “substantially contribute” to the driver’s intoxication. [See our prior Case Update on Mason here].  In this case, the court considers whether the personal representative of a deceased passenger can hold the bar liable for serving the intoxicated driver if the passenger and intoxicated driver spent several hours drinking and socializing together.  Our firm represented the defendant bar in both the Mason case and the case that is the subject of this update, Balzer v. The Roundup Pub.

Claims Pointer: In this case, the passenger, driven by his intoxicated friend, was killed in a car accident.  Prior to the accident, the two friends spent several hours socializing and drinking together.  The Oregon Court of Appeals relied on Mason, which for the first time, defined conduct that “substantially contributed” to the driver’s intoxication (Oregon’s liquor liability statute requires the plaintiff to show that he or she did not “substantially contribute” to the driver’s intoxication in order to prevail on a claim against the bar).  The court held that because the two friends spent several hours driving and socializing together and because Plaintiff could offer no evidence to show that the deceased passenger did not substantially contribute to the driver’s intoxication, the plaintiff could not prevail on a claim against the bar.

Balzer v. The Roundup Pub, 293 Or App 157 (2018).

Mitchell Johnson (“Johnson”) went to his long-time friend Byron Moore’s (“Moore”) house where they consumed one or two beers.  Afterward, the two went to Washington Street Steakhouse & Pub (“Washington Street”) where...

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Attorney Profile Case Update Template -2016 Kyle

Washington Case Law Update: Determining Whether Communications Between Attorneys Constitute a Settlement Agreement

From the desk of Kyle D. Riley: Attorneys representing their respective clients often engage in email, telephone and in-person discussions to reach a settlement agreement.  But which statements by counsel are sufficient to constitute a binding settlement agreement? Read on to find out.

Claims Pointer: In this case arising out of a dispute over a construction project, the plaintiff sought to enforce communications between the attorneys as a settlement agreement.  On review, the Washington Court of Appeals determined that the communications were insufficient to constitute a settlement agreement because defendant’s statements failed to show an assent to be bound by the terms of a settlement agreement.  This case serves as an overview and example of how courts review communications to determine whether certain statements constitute a settlement agreement.

Goebel Design Group, LLC. v. Clear NRG, LLC., No. 77090-0-I, Washington Court of Appeals Div. I (August 6, 2018) (unpublished).

Goebel Design Group, LLC, (“Goebel”) entered into a contractual agreement with Clear NRG, LLC (“Clear”), under which Clear agreed to perform remodel and construction work on a project.  Following a dispute, Goebel filed suit against Clear.  Thereafter, attorneys for both parties entered into settlement discussions.  Goebel offered to settle the suit for $50,000 and a personal guarantee by Clear’s sole member, or $65,000 and no personal guarantee.  Clear responded by offering $40,000 and a personal guarantee, or $55,000 and no personal guarantee.

Goebel made another offer, composed of a personal guarantee, and $2,000 monthly payments for 25 months, along with interest on the unpaid balance.  Clear’s counsel responded “[l]ooking like my client is inclined to accept your most recent settlement proposal. Devil is in the details though. Send me the docs...

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Jeff Eberhard Managing Partner

Court of Appeals Enforces the Complicity Doctrine in Liquor Liability Suits: Holds Passenger May Not Sue Bar Claiming Over Service to Driver

From the Desk of Jeff Eberhard: Claims against bars, taverns and even social hosts come in several varieties, one of which occurs when an intoxicated driver is involved in an accident causing injuries to the passenger.  But if the passenger played a role in the driver’s intoxication, will the passenger have a claim against the bar, tavern or social host for serving the intoxicated driver? Read on to find out.

Claims Pointer: A common factual scenario encountered by bar and tavern owners is where friends go together or meet at a bar, drink together and at the end of the night, leave together, with one of the intoxicated friends driving and the other riding as a passenger.  In cases where the passenger is injured while traveling with the intoxicated driver and the injured passenger brings a claim against the bar or tavern, Oregon’s Liquor Liability Statute, ORS 471.565, requires the passenger to prove that they did not substantially contribute to the driver’s intoxication. Our firm represented the bar that served the alcohol.  The trial court granted our summary judgment motion.  The Oregon Court of Appeals found that the plaintiff failed to submit evidence to show that he did not substantially contribute to the driver’s intoxication, and confirmed that the trial court properly granted summary judgment in favor of our client.

Mason v. BCK Corporation, 292 Or App 580 (2018).

Plaintiff Mathew Mason (“Plaintiff”) was at BCK Corporation dba Duffy’s Irish Pub (“Duffy’s Irish Pub”) when he ran into a family friend, Jolene Mullenix (“Mullenix”).  Mullenix was with her fiancé, Hidaro, and the three of them bought drinks for each other, staying at Duffy’s Irish Pub from 9:00 p.m. until about 2:00 a.m.  During the course of the night, they consumed multiple rounds of drinks– perhaps as many as 10...

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Jeff Eberhard Managing Partner

Oregon Case Law Update: Court of Appeals Reaffirms Position on Noneconomic Damages

From the Desk of Jeff Eberhard: If the jury awards plaintiff $10,500,000 in noneconomic damages, will the court find that applying the statutory $500,000 noneconomic damages cap violates the remedy clause of the Oregon Constitution? For now, the answer is yes. Read on to find out why that answer may change.

Claims Pointer: Because the Oregon Court of Appeals found that to ORS 31.710(1) violated the remedy clause in Vasquez and Rains, the Court of Appeals’ ruling, in this case, was somewhat expected.  It is likely that in the meantime, the Court of Appeals will continue to invalidate the statutory cap on noneconomic damages.  As such, the next opportunity for clarification will come from the Oregon Supreme Court, which could take over a year to render a decision.  The Oregon Supreme Court has accepted a petition for review of the Vasquez decision.  The petitioners and respondents in Vasquez have filed their respective briefs on the merits, and six parties filed amicus curiae briefs.  Petitioners will have until August 2, 2018 to file a reply brief, unless extensions are provided, and the Oregon Supreme Court is set to hear oral argument on September 14, 2018.

Busch v. McInnis Waste Systems, Inc. 292 Or App 820 (2018).

Plaintiff Scott Busch (“Plaintiff”) was crossing the street on his way to work when he was struck by a garbage truck owned by Defendant McInnis Waste Systems, Inc. (“Defendant”).  Plaintiff suffered severe injuries, leading to the amputation of his leg above the knee.  Plaintiff filed suit against Defendant.  Defendant admitted liability and the case proceeded to trial on the issue of damages.  At trial, the jury found that Plaintiff was entitled to $3,021,922 in economic damages and $10,500,000 in noneconomic damages.  Defendant moved to reduce the noneconomic damages award to $500,000, pursuant to 31.710(1).  The trial court awarded the motion...

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