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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732, 927 P.2d 240 (1996). Even if misleading, the instruction must be prejudicial

to be reversible. Fite, 19 Wn. App. 2d at 930.

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

Both parties rely on Fite in support of their jury instruction arguments.

There, a skateboarder was hit by a truck while traveling through a crosswalk and

successfully sued the driver and the municipality for negligence. Id. at 921. At

trial, the court read the following instruction to the jury:

Whether a roadway or crosswalk is reasonably safe for ordinary
travel must be determined based on the “totality of the
circumstances.” 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.

Id. at 925. On appeal, the court reiterated that “[u]nder common law, municipalities

are held to the general duty of care of a reasonable person under the

circumstances.” Id. at 931. Although the court noted that “compliance with

applicable statutes and regulations may be used to show a municipality met its

duty of care,” it also recognized that “a municipality can violate its duty of care even

when it complies with statutes and regulations.” Id. at 933. The ultimate question

is whether the municipality breached its duty of care “based on the totality of the

circumstances.” Id. at 931 (quoting Xiao Ping Chen v. City of Seattle, 153 Wn.

App. 890, 894, 223 P.3d 1230 (2009)). The court ultimately held that the trial court

abused its discretion because, while the instruction accurately stated the law, it

improperly emphasized the plaintiff’s theory of the case by omitting that