Wash. Court of Appeals published opinion — 341038_pub.pdf

Citation: Wash. Court of Appeals published opinion — 341038_pub.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/341038_pub.pdf ↗

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courts analyzed the specific facts of the case in light of the public policy and employer

justification. In Gardner, when assessing whether the saving of human lives overrode the

employer's goals of employee safety, safekeeping of large sums of money, and insurance

coverage, the Supreme Court noted peculiar facts of the case. Those facts included Kevin

Gardner's partner being present inside the bank and Loomis Armored failing to identify

the terms of its insurance policy.

Our seventh question requires us to probe whether the weighing of the public

policy and the employer justification should be performed by the court as a matter of law

or by the trier of fact. Ohio decisions declare that the clarity and jeopardy elements of the

Perritt test are questions of law to be determined by the court, while the causation and

overriding justification elements are factual issues to be decided by a jury. Jaber v.

49
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 34103-8-111
Martin v. Gonzaga University

FirstMerit Corp., 2017-0hio-277, _ N.E.3d _(Ct.App.); Trayer v. Estate of

Klopfenstein, 2015-0hio-5048, 53 N.E.3d 851, 855 (Ct. App.); Wiegerig v. Timken Co.,

144 Ohio App. 3d 664, 761 N.E.2d 118, 125 (2001).

We question the Ohio rule. We know of no Washington decision that directs a

jury to measure the strength of a public policy, let alone compare that strength to private

interests. We note that courts typically reserve to themselves the task of weighing the

legal importance of policies and interests, including within the setting of constitutional

rights. City of Bellevue v. Lee, 166 Wn.2d 581,585,210 P.3d 1011 (2009) (due process);

American Legion Post #149 v. Department of Health, 164 Wn.2d 570, 608-09, 192 P.3d