Gerlach v. Cove Apartments, LLC, 446 P.3d 624 (2019)

Citation: Gerlach v. Cove Apartments, LLC, 446 P.3d 624 (2019)
Parent Document: Gerlach v. Cove Apartments, LLC, 446 P.3d 624 (2019)
Jurisdiction: Washington (state)
Effective Date: 2019-05-13
Original Source: https://www.courtlistener.com/opinion/6659245/gerlach-v-cove-apartments-llc/ ↗

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¶4 Although no one witnessed how Gerlach fell and Gerlach does not remember the events of that night, her theory at trial was that the severely rotted railing on Miller's balcony gave way while she was leaning on it, causing her to fall to the ground. Relying on testimony from a biomechanical expert, Cove proffered an alternative theory: that Gerlach did not have a key to the front door, tried to enter the apartment via the balcony, and fell while trying to climb over the balcony railing from the outside. This theory supported Cove's affirmative defense under RCW 5.40.060(1) that Gerlach was intoxicated at the time of the accident, her intoxication was a proximate cause of her injuries, and she was more than 50 percent at fault. To this end, Cove attempted to introduce evidence that Gerlach's blood alcohol concentration (BAC) at the time of the accident was .238 and expert testimony on how a BAC of that level would affect a person's judgment, psychomotor functions, and cognitive abilities. The trial court excluded *819this evidence and testimony because it found they were more prejudicial than probative. Instead, the trial court instructed the jury that Gerlach "was under the influence of intoxicating liquor at the time of the accident."

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