Wash. Court of Appeals published opinion — 850661.pdf

Citation: Wash. Court of Appeals published opinion — 850661.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/850661.pdf ↗

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“compliance with statutes, regulations, and guidelines may be evidence that the

crosswalk was safe.” Id. at 929.

Contrary to SPD’s assertions, instruction no. 9 clearly and correctly recited

the applicable legal principles as set forth in Fite. Most important here, the

instruction stated that “[c]ompliance [with] applicable statutes and regulations may

be evidence that a municipality met its duty of care.” Thus, the crucial language

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 85066-1-I

favorable to the municipality that was missing in Fite was included here. SPD’s

argument that the instruction should have used “is” instead of “may be” runs

counter to the overarching principle that a municipality’s compliance with statutes

and regulations is not a complete defense to a negligence action. Fite, 19 Wn.

App. 2d at 933. Indeed, multiple expert witnesses for both Sgt. Hockett and SPD

testified that a workplace can be unsafe for human health even if CO levels are

below the regulatory exposure limits.

But even if the instruction misstated the law, SPD was not prejudiced

because it was able to introduce extensive evidence that L&I and other

governmental agencies measured the CO levels in the West Garage on numerous

occasions and these measurements all fell below the permissible regulatory

exposure limits. Relying on this evidence, SPD argued in closing that it was not

negligent because “[w]e have complied with L&I standards and every other

occupational standard that has been shown to you.” The jury nevertheless found

SPD liable. Thus, revising the language of instruction no. 9 as SPD advocated

below would not have changed the outcome of trial. 14 For these reasons, we find