HICKLY v. John Bare and Janice Bare, husband and wife, and the marital community comprised thereof, Defendants. (2006)

PART PUBLISHED OPINION

¶ 1 Elisa M. Hickly appeals the verdict in her personal injury action against Brian and Jeffrey Bare. The jury apportioned 35 percent fault to her and reduced her damages accordingly for voluntarily riding in an automobile driven and crashed by Brian,¹ who was intoxicated.   Hickly's primary argument is that RCW 5.40.060(2) precluded submitting her comparative fault to the jury because there was no showing that her actions caused the crash in which she was injured.   Hickly argues that she did not receive a fair trial because the court (1) improperly instructed the jury on her contributory negligence and her pre-existing injury;  (2) refused her request to instruct on spoliation of evidence;  (3) abused its discretion in granting the Bares' motion to exclude their previous driving while under the influence (DUI) records;  and (4) erroneously denied her motion for mistrial.

¶ 2 Holding that RCW 5.40.060's plaintiff's intoxication defense does not apply in the absence of proof of Hickly's intoxication and that, therefore, the jury was entitled to consider her contributory negligence, we affirm.

FACTS

I. The 2001 Accident

¶ 3 On March 4, 2001, Brian Bare, his brother Jeffrey Bare, and Bare's long time friend Elisa Hickly were celebrating Brian's 25th birthday with Brian's friend Nate Sears, Brian's father and sister, and several other friends at a bar.   Hickly had previously asked and ascertained that Jeffrey would be their designated driver that evening.

¶ 4 Sharing a table, Brian and Hickly both drank beer that evening:  Brian consumed at least six beers and Hickly consumed at least three to five beers.   According to Hickly, she did not see Brian during much of the evening, he was at the table only 25 percent of the time, and she did not know how much he drank.   According to Brian, he was away from the table where Hickly was sitting at least half of the time.

¶ 5 Brian, Jeffrey, and Hickly had been at the bar for about four and half hours when they decided to leave.   Jeffrey, the designated driver for the evening, had passed out, was then awakened, but was unable to drive.   Brian also felt intoxicated but felt “good enough to drive.”

¶ 6 Shortly before they left the bar, Hickly spoke with Brian about whether he was able to drive.²  According to Hickly, Brian “seemed fine to [drive],” had control of his “faculties,” walked fine, was able to handle his keys and functions of the vehicle, and did not slur his speech.   Report of Proceedings (RP) (Mar. 8, 2005) at 639.   According to Jeffrey, neither he nor Brian was capable of driving a car.   Nevertheless, Hickly and Jeffrey agreed to ride as passengers, with Hickly riding in the front passenger seat, Jeffrey in the backseat, and Brian driving.

¶ 7 About half a mile from the bar, Brian lost control of the vehicle, barely missed a telephone pole, and veered off the road. The vehicle flipped three or four times.   Hickly injured her neck and lower back.

¶ 8 Brian Peterson, who was driving along the same road, saw the aftermath of the accident, pulled over, checked to see if anyone was hurt, and called 911.   As Peterson approached, he observed Brian and Hickly arguing.   Peterson could smell alcohol emanating from Brian's breath;  Brian appeared impaired or under the influence of alcohol.

¶ 9 When Peterson went to check on Jeffrey, Brian fled into the surrounding woods and called Sears, who picked up Brian at a nearby gas station.   According to Sears, Brian was disheveled, “very intoxicated,” smelled heavily of alcohol, and slurred his speech.   RP (Mar. 9, 2005) at 785.

II. Subsequent Events

A. Brian's Other DUIs

¶ 10 Around two weeks after the accident, on March 21, 2001, Brian was arrested for DUI with a blood alcohol level of .25.   He pleaded guilty to DUI and negligent driving.   As part of a deferred prosecution agreement, Brian admitted to having an alcohol problem.   Thereafter, Brian committed and pleaded guilty to two additional DUIs in 2003.

B. Hickly's 2003 Accident

¶ 11 On October 24, 2003, about two years after the 2001 accident in which Brian had been driving and Hickly injured, Hickly was involved in another accident, in which a different driver rear-ended her vehicle.   Hickly sought treatment for back injuries she sustained in this second accident.

C. Hickly's Medical Treatment

¶ 12 Following the 2001 accident, Hickly had pain in her head, hand, back, neck, and shoulders.   She sought treatment from chiropractor Dr. Gregory Wiles, who noted that Hickly had injured her cervical and lumbar spine.   Hickly also underwent physical therapy.

¶ 13 Following the 2003 accident, Hickly stated that she had a flare-up of pain that was not very different from that following the 2001 accident.   She asserted that she did not suffer an additional injury as a result of the 2003 accident.

¶ 14 Another chiropractor, Dr. Kevin Small, examined Hickly on January 21, 2005.   He also reviewed her medical history and records, including Dr. Wiles's records.   According to Dr. Small, Hickly had a “fairly good recovery” from the 2001 accident, although she was not completely asymptomatic.   RP (Mar. 9, 2005) at 869.

III. Lawsuit

¶ 15 On February 27, 2004, Hickly filed a personal injury action against Brian and Jeffrey for injuries she sustained in the 2001 accident.   She claimed that (1) Brian had negligently operated the vehicle and had failed to keep a proper look out;  and (2) Jeffrey had negligently entrusted Brian with driving his vehicle.

¶ 16 The Bares admitted that Brian had operated the vehicle negligently and had caused the accident.   But as an affirmative defense, they claimed that Hickly had also negligently caused or contributed to her own injuries by agreeing to ride with them while they were intoxicated.   Thus, the only issue before the jury was apportionment of fault and damages.

¶ 17 The parties disputed (1) whether Hickly should have reasonably known that Brian was intoxicated and unable to drive, and (2) whether Hickly's on-going condition, for which she sought damages at trial, had been caused by the 2001 accident, the 2003 accident, or both.

A. Pretrial Motions

¶ 18 The trial court granted Hickly's motion to exclude evidence of her prior unrelated injuries, including an industrial insurance claim that occurred in 1998 and the resulting medical treatment she had received.

¶ 19 The trial court also granted the Bares' motion to exclude their previous citation and arrest records for DUI and negligent driving, treatments for alcohol or substance abuse, and unrelated vehicle accidents.³

B. Motion for Mistrial

¶ 20 At trial, Dr. Small, the Bares' expert witness, testified, in part, as follows:

Q. In addition to conducting the examination of Ms. Hickly, did you also have an opportunity to review certain records provided by my office to your office regarding treatment for Ms. Hickly that she had received in the past?

A. Yes, I did.

Q. And those records were basically beginning at what point in time?

A. The records began-actually there were a few records from a couple of injuries in the late 90's.   There were some records from 2001 when she started seeing Dr. Wiles.   I saw Dr. Wiles' records through 2001, 2002.

RP (Mar. 9, 2005) at 821.

¶ 21 Hickly asked for a “sidebar,” during which she immediately requested a mistrial.   She argued that Dr. Small's reference to her injuries in the 1990s violated the court's pretrial order excluding information about injuries before the 2001 accident.   Hickly declined the trial court's offer to give the jury a curative instruction, asserting that no instruction would cure the prejudice that Dr. Small's testimony had caused.   Hickly also declined the trial court's offer to allow Dr. Small to testify that her 1990s injuries had no bearing on his opinion and assessment, as he had indicated during an offer of proof.

¶ 22 Hickly argued that the trial court should either grant her a new trial or exclude Dr. Small's testimony altogether.   The trial court denied both motions.

C. Jury Instructions

¶ 23 The trial court provided several related jury instructions on contributory negligence/comparative fault.   Hickly took exception to these instructions, arguing that RCW 5.40.060(2) precluded the Bares from claiming that she was contributorily negligent.

¶ 24 In rejecting Hickly's argument, the trial court ruled that (1) RCW 5.40.060 applies only when the issue is whether the Hickly's contributory negligence/comparative fault is a complete defense under the statute;  and (2) RCW 5.40.060 does not apply in those other circumstances when the Hickly's contributory negligence/comparative fault is available as a general defense.

¶ 25 Hickly then requested an instruction on spoliation, based on Brian's having fled the scene of the 2001 accident.   She argued that (1) Brian's flight prevented her from obtaining evidence of his intoxication or sobriety;  and (2) if the trial court allowed the jury to consider her contributory negligence, it should also allow them to consider spoliation.   The trial court rejected Hickly's request for a spoliation instruction.

¶ 26 The trial court gave the jury two instructions on pre-existing injuries.   Hickly took exception to both instructions.

¶ 27 The jury found Brian and Jeffrey, 60 and 5 percent at fault, respectively, in negligently causing Hickly's injuries, and Hickly, 35 percent at fault in contributing to her own injuries.

¶ 28 Hickly appeals.

ANALYSIS

I. Comparative Fault

¶ 29 Hickly argues that the trial court erred in allowing the jury to consider whether she had negligently contributed to her own injuries.   She contends that RCW 5.40.060(2) abolished comparative fault as a defense where drivers are sued by passengers who did nothing to cause the accidents in which plaintiffs were injured.   This argument fails.  RCW 5.40.060 does not apply here because a necessary triggering event, plaintiff Hickly's intoxication, was not shown.

A. Background

¶ 30 Washington courts have long held that passengers may be contributorily negligent in causing their own injuries by voluntarily riding in a car with a driver they know, or reasonably should know, is intoxicated.   See, e.g., Geschwind v. Flanagan, 121 Wash.2d 833, 838, 854 P.2d 1061 (1993) (personal injury action by intoxicated passenger against intoxicated driver;  jury found passenger 70 percent at fault for own injuries and rendered judgment for defendant driver;  holding-plaintiff passenger's own voluntary actions may increase risk of injury such that plaintiff is primarily responsible for own injuries).

¶ 31 Our Legislature enacted the Tort Reform Act (TRA) (1981) to create a fairer and more equitable distribution of liability among multiple parties with varying degrees of fault in causing a plaintiff's injuries.  RCW 4.22.005 ⁴ (contributory/comparative fault), .015 (“fault” defined), .070 (percentage of fault of more than one party);  Christensen v. Royal Sch. Dist., 156 Wash.2d 62, 66, 124 P.3d 283 (2005).   As part of this tort reform process, our Legislature also enacted RCW 5.40.060, setting forth limited circumstances in which a defendant may use the plaintiff's intoxication as a complete defense to an action for damages.⁵  Enactment of RCW 5.40.060, however, did not eradicate comparative fault in circumstances where RCW 5.40.060 does not apply. See, e.g., Tegman v. Accident & Med. Investigations, Inc., 150 Wash.2d 102, 116, 75 P.3d 497 (2003);  Keller v. City of Spokane, 146 Wash.2d 237, 244, 44 P.3d 845 (2002).

B. RCW 5.40.060

 ¶ 32 The parties dispute the meaning of RCW 5.40.060(2), which Washington courts have not yet directly interpreted.   Thus, we address an issue of first impression.   In so doing, however, we first address whether the statute applies.

1. Standard of Review

¶ 33 Statutory interpretation is a question of law, which courts review de novo.  Agrilink Foods, Inc. v. Dep't of Revenue, 153 Wash.2d 392, 396, 103 P.3d 1226 (2005).   Our primary goal in interpreting statutes is to ascertain the Legislature's intent.  Schrom v. Bd. for Volunteer Fire Fighters, 153 Wash.2d 19, 25, 100 P.3d 814 (2004).

¶ 34 Where a statute is clear and unambiguous, we first look to the plain meaning of the words in light of the statute as a whole.  Schrom, 153 Wash.2d at 25, 100 P.3d 814.   A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable.  Agrilink, 153 Wash.2d at 396, 103 P.3d 1226.

2. Plain language

¶ 35 Because the language of RCW 5.40.060(2) is clear and unambiguous, we look to its plain meaning.  RCW 5.40.060 provides:

(1) Except as provided in subsection (2) of this section, it is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault.   The standard for determining whether a person was under the influence of intoxicating liquor or drugs shall be the same standard established for criminal convictions under RCW 46.61.502, and evidence that a person was under the influence of intoxicating liquor or drugs under the standard established by RCW 46.61.502 shall be conclusive proof that such person was under the influence of intoxicating liquor or drugs.

(2) In an action for damages for personal injury or wrongful death that is brought against the driver of a motor vehicle who was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and whose condition was a proximate cause of the injury or death, subsection (1) of this section does not create a defense against the action notwithstanding that the person injured or killed was also under the influence so long as such person's condition was not a proximate cause of the occurrence causing the injury or death.

RCW 5.40.060 (emphasis added).

 ¶ 36 Under the plain language of RCW 5.40.060(1), where the plaintiff was intoxicated, the plaintiff's intoxication is a complete defense precluding recovery of damages altogether if the defendant establishes that (1) the plaintiff was under the influence of alcohol or drugs when injured;  (2) the plaintiff's intoxication proximately caused her own injuries;  and (3) the plaintiff was more than 50 percent comparatively at fault in causing her injuries.  Edgar v. City of Tacoma, 129 Wash.2d 621, 628-29, 919 P.2d 1236 (1996);  Estate of Kelly v. Falin, 127 Wash.2d 31, 40, 896 P.2d 1245 (1995);  Geschwind, 121 Wash.2d at 840, 854 P.2d 1061.   Subsection (1) does not mention what happens if the defendant driver is also intoxicated. Rather, subsection (2) addresses that situation.

¶ 37 Unlike subsection (1), subsection (2), by its plain language, is triggered by the defendant's intoxication.   Nonetheless, like subsection (1), application of subsection (2) is also predicated on the plaintiff's intoxication.   See, e.g., Geschwind, supra (uncontroverted that plaintiff, as well as defendant, was intoxicated;  at issue was causation).   But where the defendant driver's intoxication proximately caused the “occurrence” in which plaintiff was injured, subsection (2) of RCW 5.40.060 limits application of subsection (1)'s complete defense to those circumstances in which the plaintiff's intoxication was also a proximate cause of the “ occurrence.”   Thus, subsection (2) does not provide an intoxicated driver with a statutory subsection (1) defense against an intoxicated plaintiff's claim for damages unless the plaintiff's intoxication caused the injurious accident.

¶ 38 As our Supreme Court has noted, in another context,

The 1986 TRA created a statutory defense in personal injury and wrongful death actions where the plaintiff was intoxicated (as defined by RCW 46.61.502).   Such intoxication is a complete defense if the trier of fact finds that (1) the plaintiff was more than 50 percent at fault, and (2) the plaintiff's intoxication was a proximate cause of the plaintiff's injuries.   RCW 5.40.060.

Edgar v. City of Tacoma, 129 Wash.2d 621, 628-29, 919 P.2d 1236 (1996) (focusing on percentage apportionment of fault between intoxicated driver and intoxicated passenger, not on the meaning or application of subsection (2) of RCW 5.40.060, where the plaintiff passenger was not also intoxicated).⁶

 ¶ 39 Here, there was evidence that Hickly had been drinking alcohol earlier in the evening before getting into the car driven by intoxicated Brian, whose negligent driving was the sole cause of the accident after his intoxicated brother entrusted him with the car.   But there was no evidence that Hickly was also intoxicated or that her actions contributed to causing the accident.   Thus, as the trial court properly ruled, under its plain language, RCW 5.40.060(2) did not apply.   And, therefore, this statute did not provide Brian with a complete defense to Hickly's personal injury action.

¶ 40 We hold, therefore, that the plaintiff's intoxication is a prerequisite to application of RCW 5.40.060's statutory defense. Where, as here, the plaintiff passenger was not intoxicated, subsection (2) of RCW 5.40. 060 does not apply to provide an intoxicated defendant with a statutory defense to the plaintiff's damages action.

¶ 41 This holding does not mean, however, that a plaintiff's condition or actions cannot give rise to a defense independent of RCW 5.40.060.   We now turn to the common law and 4.22 RCW.

C. 4.22 RCW

 ¶ 42 Hickly argues that RCW 5.40.060(2) abolished comparative fault as a defense for intoxicated drivers sued by passengers who did not proximately cause the accident.⁷  This argument fails.

1. Background

[T]he linkage of RCW 5.40.060 to chapter 4.22 RCW is apparent from its application.   The very nature of the intoxication defense involves a comparative fault analysis.   It requires the trier of fact to determine if the plaintiff's (intoxication-based) “fault” is greater than 50 percent․ Use of the term “fault” in characterizing an intoxicated plaintiff's conduct suggests RCW 5.40.060 was intended to work within Washington's statutory comparative fault scheme to alter the consequences of “comparative fault.”

Morgan v. Johnson, 137 Wash.2d 887, 895, 976 P.2d 619 (1999) (emphasis added).

¶ 43 In promulgating RCW 5.40.060, the Legislature did not abolish the defense of a plaintiff's non-intoxication-based contributory fault.⁸  Rather, as Brian correctly argues, RCW 5.40.060(2) merely “limits the defense created by subsection 1.” Br. of Resp't at 12.   In addition, as our Supreme Court has explained, the Legislature's adoption of comparative fault did not create or enhance a defendant's prior common law duty of care.   “Rather, recovery is now permitted where it was previously denied after liability has been established.”  Keller v. City of Spokane, 146 Wash.2d 237, 244, 44 P.3d 845 (2002), quoting Hansen v. Wash. Natural Gas Co., 95 Wash.2d 773, 778, 632 P.2d 504 (1981).

¶ 44 The Supreme Court has more recently reaffirmed that comparative negligence persists in the State of Washington:

Initially through the adoption of comparative negligence between plaintiffs and defendants that have concurrently caused the harm, and subsequently through the enactment of RCW 4.22.070 to govern the accountability among multiple tortfeasors contributing to a single injury, Washington has adopted comparative fault as the touchstone for apportionment of responsibility in damages.

Tegman, 150 Wash.2d at 117, 75 P.3d 497 (citations omitted).⁹

2. Plain language

¶ 45 In enacting RCW 4.22.070, the Legislature expressly provided for apportionment of fault among multiple contributors to a plaintiff's injuries, including the plaintiff herself:

(1) In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages except entities immune from liability to the claimant under Title 51 RCW․ The entities whose fault shall be determined include the claimant or person suffering personal injury, ․ defendants, ․ entities with any other individual defense against the claimant․ Judgment shall be entered against each defendant except those who ․ have prevailed on any other individual defense against the claimant in an amount which represents that party's proportionate share of the claimant's total damages.

RCW 4.22.070 (emphasis added).

¶ 46 The Legislature's definition of “fault” further evinces its intent that plaintiffs such as Hickly, though not intoxicated for purposes of RCW 5.40.060's statutory defense, could nevertheless have their damages reduced for their own contributory actions, whether alcohol-related or not:

“Fault” includes acts or omissions, ․ that are in any measure negligent or reckless toward the person․ The term also includes ․ unreasonable assumption of risk, and unreasonable failure to avoid an injury or to mitigate damages.   Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.

A comparison of fault for any purpose under RCW 4.22.005 through 4.22.060 shall involve consideration of both the nature of the conduct of the parties to the action and the extent of the causal relation between such conduct and the damages.

RCW 4.22.015 (emphasis added).   Thus, as here, in a fault-based action for damages for personal injury, RCW 4.22.005 operates to reduce the plaintiff's damages award in proportion to her contributory fault.   Unlike the operation of RCW 5.40.060, however, even though RCW 4.22.005 operates to reduce her recovery, it does not bar her recovery altogether.

¶ 47 We hold that only when the plaintiff's intoxication is a proximate cause of the injurious accident does RCW 5.40.060(2) come into play to bar her recovery in an action for damages against the intoxicated driver.   But because the facts here do not trigger its application, RCW 5.40.060 cannot operate to abolish comparative fault as a defense for Brian.

D. Jury Instructions

 ¶ 48 Challenging Jury Instruction Nos. 5, 8-13, and 17, Hickly argues that the trial court did not have sufficient evidence to submit the issue of her contributory negligence to the jury.   We disagree.

¶ 49 According to Sears and Peterson, Brian was intoxicated, smelled of alcohol, slurred his speech, and had consumed several beers before the accident.   According to Hickly, she and Brian had eaten dinner before arriving at the bar, she saw him for at least part of the four-and-a-half-hour period during which the two were at the bar, she saw Brian drink beer and, shortly before the accident, she asked him whether he was able to drive.   Even Brian recognized that he was intoxicated, but told Hickly he was “okay to drive.”   These witnesses' testimonies supplied sufficient evidence to support the trial court's instructing the jury on whether Hickly negligently decided to ride as a passenger with Brian when he drove his car away from the bar after consuming alcohol over a several-hour period.

¶ 50 The jury was entitled to consider whether Hickly was contributorily negligent when she voluntarily rode with Bare driving his car if she knew, or should reasonably have known that he was intoxicated.  RCW 4.22.005;  see, e.g., Tegman, 150 Wash.2d at 109-10, 75 P.3d 497.   We hold, therefore, that the trial court did not abuse its discretion in instructing the jury on contributory negligence.¹⁰

¶ 51 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Other Jury Instructions

¶ 52 Hickly also argues that the trial court improperly (1) instructed the jury on pre-existing conditions and (2) refused her request to instruct on spoliation.   We address each in turn.

A. Standard of Review

¶ 53 The trial court must instruct the jury on a party's theory when there is substantial evidence to support it.  Stiley v. Block, 130 Wash.2d 486, 498, 925 P.2d 194 (1996).   Substantial evidence exists where the evidence is sufficient to persuade a fair-minded person.  Ferry County v. Concerned Friends of Ferry County, 155 Wash.2d 824, 833, 123 P.3d 102 (2005).   If there is substantial evidence to support the trial court's giving a particular instruction, we review that decision only for abuse of discretion.   And we will not reverse the trial court unless the jury instruction was prejudicial and affected the trial outcome.  Stiley, 130 Wash.2d at 498-99, 925 P.2d 194. 11

¶ 54 But we review the content of jury instructions de novo. If the trial court erred, we will reverse only if the error prejudiced a party.  Cox v. Spangler, 141 Wash.2d 431, 442-43, 5 P.3d 1265 (2000);  Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wash.2d 188, 194-95, 668 P.2d 571 (1983).   Although preferred over individually drafted instructions, the Washington Pattern Jury Instructions (WPI) are not mandatory.   Moreover, the trial court need not follow the WPI language word for word.  Stevens v. Gordon, 118 Wash.App. 43, 53, 74 P.3d 653 (2003).

¶ 55 Instead, we determine the sufficiency of the jury instructions based on whether they (1) allowed the parties to argue their theories of the case, (2) did not mislead the jury, and (3) properly informed the jury of the applicable law when read as a whole and in their entirety.  Cox, 141 Wash.2d at 442, 5 P.3d 1265.

B. Hickly's 2003 Accident

¶ 56 Hickly argues that the trial court's pre-existing injury instructions (1) incorrectly stated the law, (2) failed to advance her theory of the case, (3) over-emphasized her 2003 accident, and (4) prevented the jury from considering her on-going pain resulting from the 2001 accident.12  We disagree.

¶ 57 6 Washington Pattern Jury Instructions:  Civil 30.17, at 309 (2005) (WPI) states:

AGGRAVATION OF PRE-EXISTING CONDITION

If [your verdict is in favor of the [plaintiff] ․, and if] you find that:

(1) before this occurrence the [plaintiff] ․ had a pre-existing [bodily] ․ condition that was causing pain or disability, and

(2) because of this occurrence the condition or the pain or the disability was aggravated,

then you should consider the degree to which the condition or the pain or disability was aggravated by this occurrence.

However, you should not consider any condition or disability that may have existed prior to this occurrence, or from which the [plaintiff] ․ may now be suffering, that was not caused or contributed to by this occurrence.

WPI 30.17 requires the jury to determine (1) whether an injured plaintiff has a pre-existing condition or disability that is causing ongoing pain;  and (2) if so, the extent to which an occurrence or a subsequent injury aggravated this pre-existing condition.

¶ 58 WPI 30.18, at 311, states,

PREVIOUS INFIRM CONDITION

If [your verdict is for the [plaintiff] ․, and if] you find that:

(1) before this occurrence the [plaintiff] ․ had a [bodily] ․ condition that was not causing pain or disability;  and

(2) because of this occurrence the pre-existing condition was lighted up or made active,

then you should consider the lighting up and any other injuries that were proximately caused by the occurrence, even though those injuries, due to the pre-existing condition, may have been greater than those that would have been incurred under the same circumstances by a person without that condition.

WPI 30.18 requires the jury to determine whether the plaintiff's new injury “lit up” or made symptomatic a dormant, pre-existing condition that had not been causing the plaintiff pain before an occurrence.

¶ 59 Based on WPI 30.17 and 30.18, the trial court here gave the jury the following instructions:

Instruction No. 15

If you find that:

(1) the Plaintiff had a pre-existing bodily condition that was causing pain or disability, and

(2) because of the October 24, 2003 motor vehicle accident, the condition or the pain or the disability was aggravated, then you should not consider, for purposes of determining damages in this case, any condition or pain or disability from the October 24, 2003 motor vehicle accident.

However, you should consider any condition or disability that may have existed prior to the October 24, 2003 motor vehicle accident, or from which the Plaintiff may now be suffering, that was not caused or contributed to by the October 24, 2003 motor vehicle accident.

Clerk's Papers (CP) at 404.

Instruction No. 16

If you find that:

(1) before the October 24, 2003 motor vehicle accident, the Plaintiff had a bodily condition that was not causing pain or disability;  and

(2) because of the October 24, 2003 motor vehicle accident the pre-existing condition was lighted up or made active,

then you should not consider, for purposes of this claim, the lighting up and any other injuries that were proximately caused by the October 24, 2003 motor vehicle accident.

CP at 405.

¶ 60 Used in combination, WPI 30.17 and 30.18 are appropriate where the evidence is in dispute as to the effect of the plaintiff's pre-existing injury or condition;  their purpose is to direct the jury to consider only the effect of the injury at issue in the lawsuit.  Thogerson v. Heiner, 66 Wash.App. 466, 832 P.2d 508 (1992) (Division II);  accord Bowman v. Whitelock, 43 Wash.App. 353, 359, 717 P.2d 303 (1986) (Division I);  Lewis v. Harris, 8 Wash.App. 841, 843-44, 509 P.2d 396 (1973) (Division III).   In most cases, the parties dispute the effect of the plaintiff's subsequent injury, not her pre-existing condition.   See, e.g., Harris v. Drake, 152 Wash.2d 480, 494, 99 P.3d 872 (2004);  Thogerson, 66 Wash.App. 466, 832 P.2d 508.   Here, however, the jury had to consider the reversed situation:  It had to determine the on-going effect of Hickly's 2001 accident, the pre-existing condition, rather than the effect of any subsequent injury resulting from the 2003 accident.

¶ 61 Therefore, the trial court had to change the language of WPI 30.17 and 30.18 from their focus on excluding Hickly's pre-existing injury to focus on excluding Hickly's October 24, 2003 motor vehicle accident.   At issue before the jury were the cause and extent of Hickly's injury resulting from her 2001 accident in Brian's vehicle, which injury pre-dated her subsequent 2003 accident. The particular facts of this case necessitated these changes, without which the jury instructions would have misstated the law and misled the jury. 13

¶ 62 Further, we disagree with Hickly's contention that the trial court's instructions overemphasized that the jury should not compensate her or that the instructions precluded the jury from considering her on-going pain from her pre-existing injury caused by the 2001 Brian accident.   Hickly's theory of the case was that the 2003 accident only temporarily exacerbated her pre-existing 2001 injury.   Jury Instruction No. 15 adequately set forth her position, in pertinent part, as follows:

[Y]ou should consider any condition or disability that may have existed prior to the October 24, 2003 motor vehicle accident ․ that was not caused or contributed to by the October 24, 2003 motor vehicle accident.

CP at 404.

¶ 63 Contrary to Hickly's assertion, Jury Instruction No. 15 did not preclude the jury from considering all of Hickly's conditions or pain following the 2003 accident.   Rather, this instruction directed the jury to consider only the on-going effects of Hickly's pre-existing injury from the 2001 accident and to disregard any part of her current condition that the October 24, 2003 accident had caused.   If the jury found that Hickly's current condition was caused by the 2001 injury, then Jury Instruction No. 13 directed the jury to determine her resulting damages.

¶ 64 We presume that the jury followed the trial court's instructions.   The record contains no evidence to the contrary.14  McLaughlin v. Cooke, 112 Wash.2d 829, 839, 774 P.2d 1171 (1989) (courts presume that juries follow instructions).   Accordingly, we hold that Jury Instruction Nos. 15 and 16 allowed the parties to advance their respective theories, did not mislead the jury, and properly informed the jury of the applicable law.

C. Spoliation

¶ 65 “Spoliation” is the intentional destruction of evidence.  Marshall v. Bally's Pacwest, Inc., 94 Wash.App. 372, 381, 972 P.2d 475 (1999).   Hickly argues that because the trial court instructed the jury on contributory negligence, it should have allowed her to argue spoliation because Brian's fleeing the scene rendered unavailable such evidence as his blood alcohol level and breath tests.15  Again, we disagree.

¶ 66 Spoliation occurs “[w]here relevant evidence which would properly be a part of a case is within the control of a party whose interests it would naturally be to produce it and he fails to do so, without satisfactory explanation.”  Marshall, 94 Wash.App. at 381, 972 P.2d 475.   Where there is spoliation, “the only inference which the finder of fact may draw is that such evidence would be unfavorable to him.”  Marshall, 94 Wash.App. at 381, 972 P.2d 475 (quoting Pier 67, Inc. v. King County, 89 Wash.2d 379, 385-86, 573 P.2d 2 (1977)).   Accordingly, to remedy spoliation, courts may apply a rebuttable presumption that shifts the burden of proof to a party who destroys or alters important evidence.

¶ 67 In deciding whether to apply a rebuttable presumption, the court looks at (1) the potential importance or relevance of the missing evidence, and (2) the culpability or fault of the adverse party.   Looking at these factors here, the trial court stated,

It's hard to say that ․ [Brian] intentionally was trying to destroy evidence of intoxication, or rather evidence of being sober by running away.   And it's the evidence of being sober that [Hickly] wants to put in here.   His running away is, in some sense, a consciousness of guilt․ We see that commonly in criminal cases and it shows some intent, usually, that they knew what they were doing or that they had evidence of a crime or that they participated in a crime and didn't want to be apprehended.

But [a spoliation instruction] does not apply to this case because the way it's been defined here, ․ the jury should make an inference against the defendant ․ [if the defendant] naturally wanted to produce evidence of [his] sobriety and, of course, that's not what [the defendant] would have wanted to do under the circumstance.

․ But I don't think under the circumstances of this case that his fleeing the scene can be seen as intentional obstruction of evidence.   Since it was a part of a natural process of metabolizing, and since there's so many other things he might have been concerned about, like just being put in jail.

RP (Mar. 10, 2005) at 970-71.

¶ 68 In thus rejecting Hickly's spoliation theory, the trial court essentially determined that (1) Brian's fleeing the scene was likely an attempt to avoid being caught drinking alcohol and driving, not likely to have shown that he had been driving while sober, as Hickly posits;  and (2) therefore, this unfavorable inference, namely drinking and driving, would not show Brian wanted to destroy evidence that he had been sober at the time of the accident.   We find no flaw in the trial court's reasoning.16

¶ 69 Therefore, we hold that the trial court properly refused Hickly's request to provide a spoliation instruction to the jury.

III. Evidentiary Rulings

A. Standard of Review

¶ 70 The trial court has discretion to grant or to deny a motion to exclude evidence.   The trial court has discretion to exclude relevant evidence if the probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.  Hizey v. Carpenter, 119 Wash.2d 251, 268, 830 P.2d 646 (1992).

¶ 71 We will reverse the trial court's evidentiary decision only upon a showing that it abused its discretion.   An abuse of discretion occurs when the ruling is manifestly unreasonable or based on untenable grounds.

B. Brian's March 21, 2001 DUI

¶ 72 Hickly argues that the trial court abused its discretion when it granted Brian's motion to exclude evidence of his March 21, 2001 DUI charge, about two weeks after the 2001 accident, and the related guilty findings and his alcohol treatment.   Hickly contends that (1) the excluded evidence, namely, that Brian had a blood alcohol level of .25 at the time of the March 21, 2001 DUI violation, would have shown that Brian was a seasoned alcoholic with a high tolerance for alcohol at the time of the 2001 accident;  and (2) the jury then could have determined that she reasonably believed Brian was not intoxicated when she chose to ride in the vehicle he had driven and crashed two weeks earlier.   We disagree.

¶ 73 Although the excluded evidence would have shown that Brian drove with a blood alcohol level of .25 on March 21, 2001, this evidence was not relevant to show that (1) he was either intoxicated or able to drive while intoxicated at the time of the 2001 accident;  or (2) Brian had actually “appeared” sober to Hickly before she got into his vehicle the evening of the 2001 accident.   Other than her bare assertion, Hickly points to no evidence or offer of proof in the record showing a correlation between alcoholism or alcohol tolerance and an alcoholic's sober appearance in general, whether such a correlation applied to Brian in particular, or how Brian's blood alcohol level when arrested two weeks later was relevant to his appearance the night of the accident. Moreover, our Supreme Court has specifically noted the contrary-that alcohol consumption does not necessarily show whether a person “appears” intoxicated.   See Christen v. Lee, 113 Wash.2d 479, 491, 780 P.2d 1307 (1989).

¶ 74 And regardless of how Brian may have appeared when arrested for DUI two weeks later, the record contains contrary testimonies from multiple witnesses, including Brian himself, that he appeared and smelled intoxicated at the time of the relevant event-the night of the 2001 accident.

¶ 75 We hold, therefore, that the trial court did not abuse its discretion in excluding evidence of Brian's March 21, 2001 DUI.

C. Hickly's Prior Unrelated Injuries

¶ 76 Lastly, Hickly argues that the trial court abused its discretion in denying her motion for a mistrial.   She claims that Dr. Small's testimony violated the trial court's pretrial order to exclude evidence of her injuries before the 2001 accident and that this violation prejudiced the jury.   Again, we disagree.

¶ 77 We review the trial court's decision to grant or to deny a new trial under the abuse of discretion standard.  Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash.2d 747, 768, 818 P.2d 1337 (1991).   Under this standard, we must determine whether the trial court's ruling was manifestly unreasonable or based on untenable grounds.  Hizey, 119 Wash.2d at 268, 830 P.2d 646.

¶ 78 The trial court found that Dr. Small violated its pretrial order to refrain from mentioning Hickly's prior injuries;  but the trial court also found that this violation was not prejudicial.   Moreover, the court offered to give the jury a curative instruction or to allow Hickly the opportunity to have Dr. Small testify that her 1990s injuries had no bearing on Dr. Small's assessment.   But Hickly refused both options.

¶ 79 We do not find the trial court's decision manifestly unreasonable.   As the trial court pointed out, Dr. Small did not testify to any details of Hickly's earlier injuries, such as the body parts injured, how she became injured, or any details of the prior incidents.   We hold, therefore, that the trial court did not abuse its discretion in denying Hickly's motion for mistrial.

¶ 80 Affirmed.

FOOTNOTES

1.   We use the Bares' first names for clarity.

2.   Brian could not remember whether he had had this discussion with Hickly, but Hickly clearly remembered it.

3.   In granting this motion, the trial court noted that the Bares' admissions to being alcoholics, a prerequisite for deferred prosecution, was highly prejudicial.

4.   For example, a plaintiff may be negligent in failing to use due care for her own protection, while a defendant may be negligent in failing to use due care for the safety of others.   Under the comparative fault system established in RCW 4.22.005, the finder of fact must compare the respective faults of the plaintiff and defendant and determine the degree to which the plaintiff failed to protect herself.   If the plaintiff is at fault, she may recover damages proportionate to the defendant's share of the fault.

5.   “[T]he Legislature has chosen to curtail the rights of certain intoxicated persons by enacting RCW 5.40.060.”  Morgan v. Johnson, 137 Wash.2d 887, 896, 976 P.2d 619 (1999) (holding that the Legislature intended RCW 5.40.060's comparative fault principles and intoxication defense to apply to negligent or reckless torts, but not to intentional, torts).  Id. at 624.

6.   See also Morgan v. Johnson, 137 Wash.2d 887, 893, n. 1, 976 P.2d 619 (1999), in which our Supreme Court addressed the Legislature's enactment of subsection (2) of RCW 5.40.060 in response to the Court's Geschwind holding and held that this statutory defense does not apply to intentional torts (domestic violence assault), as distinguished from merely negligent or reckless torts:We decide in this case if the intoxication defense established in RCW 5.40.060 applies to an intentional tort.   Under the plain language of that statute, the defense may be asserted only where plaintiff was intoxicated at the time of the occurrence which caused the plaintiff's injuries or death, the intoxication was a proximate cause of the injuries or death, and the plaintiff was more than 50 percent at fault.   In utilizing “fault,” a term of art under RCW 4.22.015, the Legislature plainly meant the intoxication defense is unavailable in intentional tort actions.Morgan, 137 Wash.2d at 889, 976 P.2d 619.

7.   Hickly is partly correct in that, as we note above, because Brian did not show that she was intoxicated, he could not assert her unproven intoxication-based contributory negligence as a defense under RCW 5.40.060(2).

8.   See, for example, the Supreme Court's explanation of Washington's statutory comparative fault scheme, which operates independently of RCW 5.40.060 when this latter statute does not apply, as is the case with intentional torts.  Morgan, 137 Wash.2d at 895, 976 P.2d 619.

9.   Tegman, 150 Wash.2d at 116-17, 75 P.3d 497:When this State's legislature rejected the absolute bar of contributory negligence to recovery by negligent plaintiffs and adopted comparative negligence principles, Laws of 1973, 1st Ex.Sess., ch. 138, § 1, the “premise that wrongs were inherently indivisible or that responsibility could not rationally be apportioned among multiple parties fell into disfavor.”   Gregory C. Sisk, The Constitutional Validity of the Modification of Joint and Several Liability in the Washington Tort Reform Act of 1986, 13 U. Puget Sound L.Rev. 433, 437 (1990).Through the adoption of comparative fault, the Washington State Legislature rejected the “tortured analysis” that “harm which is indivisible leaves no logical basis for apportionment.”   The unitary nature of the harm and the assignment of responsibility are two separate matters.   When multiple proximate causes have been determined for a single injury, the trier of fact still must determine and apportion the responsibility based upon the varying degrees of culpability and causation among the actors.   As commentators have explained:  “It does not follow that simply because the harm is indivisible that there is no basis for apportionment.   It is the responsibility for causing the harm which should be the focus of the inquiry․”Gregory C. Sisk, Interpretation of the Statutory Modification of Joint and Several Liability:  Resisting the Deconstruction of Tort Reform, 16 U. Puget Sound L.Rev. 1, 41 (1992) (footnotes and emphasis omitted).   Under comparative fault principles, the trier of fact must allocate fault between a negligent plaintiff and a negligent defendant.  RCW 4.22.005.

10.   The trial court reasoned that a contributory negligence instruction was warranted because (1) RCW 5.40.060 applies only when there is an issue of whether contributory negligence/comparative fault is a complete defense, and (2) it does not apply when there is an issue of whether contributory negligence/comparative fault may be used generally as a defense under the circumstances.   This ruling is consistent with our holding that RCW 5.40.060 simply does not apply here and, therefore, RCW 4.22.005 and common law control.

FN11.  Hickly also argues that we must review the evidence in the light most favorable to her when a defendant claims an affirmative defense, citing State v. Lively, 130 Wash.2d 1, 921 P.2d 1035 (1996).   This is incorrect.   In Lively, the court stated that the standard of review for sufficiency of the evidence is whether a rational trier of fact could have found that the defendant failed to prove the affirmative defense with the evidence viewed in the light most favorable to the State.   130 Wash.2d at 17, 921 P.2d 1035.   First, the standard of review here is substantial evidence to support whether the defendant may present the issue of contributory negligence to the jury, not whether the jury had sufficient evidence to support its ultimate verdict.   Second, we view the evidence in the light most favorable to the prevailing party, which here is defendant Brian. Benchmark Land Co. v. City of Battle Ground, 146 Wash.2d 685, 694, 49 P.3d 860 (2002)..  FN11.  Hickly also argues that we must review the evidence in the light most favorable to her when a defendant claims an affirmative defense, citing State v. Lively, 130 Wash.2d 1, 921 P.2d 1035 (1996).   This is incorrect.   In Lively, the court stated that the standard of review for sufficiency of the evidence is whether a rational trier of fact could have found that the defendant failed to prove the affirmative defense with the evidence viewed in the light most favorable to the State.   130 Wash.2d at 17, 921 P.2d 1035.   First, the standard of review here is substantial evidence to support whether the defendant may present the issue of contributory negligence to the jury, not whether the jury had sufficient evidence to support its ultimate verdict.   Second, we view the evidence in the light most favorable to the prevailing party, which here is defendant Brian. Benchmark Land Co. v. City of Battle Ground, 146 Wash.2d 685, 694, 49 P.3d 860 (2002).

FN12.  Hickly does not dispute that 6 Washington Pattern Jury Instructions:  Civil 30.17, at 309, and 30.18, at 311 (2005) (WPI) are correct statements of the law.   Rather, she contends that the trial court erred in modifying the language of these two pattern instructions..  FN12.  Hickly does not dispute that 6 Washington Pattern Jury Instructions:  Civil 30.17, at 309, and 30.18, at 311 (2005) (WPI) are correct statements of the law.   Rather, she contends that the trial court erred in modifying the language of these two pattern instructions.

FN13.  As support, Hickly cites to Brashear v. Puget Sound Power & Light Co., 100 Wash.2d 204, 207, 667 P.2d 78 (1983).  Brashear, however, dealt with multiple proximate causes under WPI 15.04, formerly numbered 12.04.   If Hickly's position is that the 2003 accident did not cause on-going pain but only temporarily exacerbated her pre-existing symptomatic condition, she cannot concurrently argue that both the 2001 and 2003 accidents caused her condition and that it is up to the Bares to apportion liability between them.Moreover, Hickly never proposed an instruction based on WPI 15.04, at 191, and, without showing manifest injustice, she cannot now argue this point for the first time on appeal.  RAP 2.5.   See Brashear, 100 Wash.2d at 207, 667 P.2d 78..  FN13.  As support, Hickly cites to Brashear v. Puget Sound Power & Light Co., 100 Wash.2d 204, 207, 667 P.2d 78 (1983).  Brashear, however, dealt with multiple proximate causes under WPI 15.04, formerly numbered 12.04.   If Hickly's position is that the 2003 accident did not cause on-going pain but only temporarily exacerbated her pre-existing symptomatic condition, she cannot concurrently argue that both the 2001 and 2003 accidents caused her condition and that it is up to the Bares to apportion liability between them.Moreover, Hickly never proposed an instruction based on WPI 15.04, at 191, and, without showing manifest injustice, she cannot now argue this point for the first time on appeal.  RAP 2.5.   See Brashear, 100 Wash.2d at 207, 667 P.2d 78.

FN14.  Although Hickly claims that Jury Instruction Nos. 15 and 16 were also repetitious and overlapping, we have already held that WPI 30.17 and 30.18, used in combination, are appropriate when the parties dispute whether a pre-existing condition is symptomatic.  Thogerson, 66 Wash.App. at 474, 832 P.2d 508;  accord Bowman, 43 Wash.App. at 359, 717 P.2d 303;  Lewis, 8 Wash.App. at 844, 509 P.2d 396.   This was precisely one of the issues before the jury here.   Therefore, the trial court appropriately used instructions based on these WPIs..  FN14.  Although Hickly claims that Jury Instruction Nos. 15 and 16 were also repetitious and overlapping, we have already held that WPI 30.17 and 30.18, used in combination, are appropriate when the parties dispute whether a pre-existing condition is symptomatic.  Thogerson, 66 Wash.App. at 474, 832 P.2d 508;  accord Bowman, 43 Wash.App. at 359, 717 P.2d 303;  Lewis, 8 Wash.App. at 844, 509 P.2d 396.   This was precisely one of the issues before the jury here.   Therefore, the trial court appropriately used instructions based on these WPIs.

FN15.  Hickly contends that this evidence was necessary (1) because the Bares claimed she should have known that Brian was intoxicated and, therefore, unsafe to be driving a vehicle, and (2) to show that Brian was not intoxicated that evening..  FN15.  Hickly contends that this evidence was necessary (1) because the Bares claimed she should have known that Brian was intoxicated and, therefore, unsafe to be driving a vehicle, and (2) to show that Brian was not intoxicated that evening.

FN16.  Furthermore, even were we to presume that Brian wanted to avoid being caught sober or not intoxicated, we fail to see the relevance or importance of his blood and breath tests.   First, alcohol level does not necessarily indicate whether a person “appears” sober or how Brian acted on the night of the 2001 accident.   See Christen v. Lee, 113 Wash.2d 479, 489-90, 780 P.2d 1307 (1989).   Second, because Brian fully admitted that he was intoxicated at the time of the accident, and witnesses observed his intoxicated state, such tests likely would have confirmed his intoxication..  FN16.  Furthermore, even were we to presume that Brian wanted to avoid being caught sober or not intoxicated, we fail to see the relevance or importance of his blood and breath tests.   First, alcohol level does not necessarily indicate whether a person “appears” sober or how Brian acted on the night of the 2001 accident.   See Christen v. Lee, 113 Wash.2d 479, 489-90, 780 P.2d 1307 (1989).   Second, because Brian fully admitted that he was intoxicated at the time of the accident, and witnesses observed his intoxicated state, such tests likely would have confirmed his intoxication.

HUNT, J.