Washburn v. City of Federal Way (Division 1, March 26, 2012), is a shocking and depressing case — a wrongful death action against the City following a fatal act of domestic violence. But it would be a mistake to read this case as limited to its terrible facts. The Court’s decision includes a number of must-remember practice rules for all civil litigators, including the Court of Appeals’s limited ability to review denials of summary judgment, the need to object clearly and specifically to jury instructions, and the requirement (apparently previously unstated in Washington law) that a CR 50(a) motion be renewed post-verdict under CR 50(b) to preserve the right to appeal.
First, the facts: Baerbel Roznowski obtained a order of protection stating that her boyfriend, Paul Kim, was required to stay away from her and from her home. She specifically warned the Federal Way Police Department in writing (on a Department form) that Kim was likely to respond violently when served with the order. Despite Roznowski’s warning and the plain terms of the order (which required Kim to stay away from Roznowski’s home and from Roznowski), the Police Department served Kim with the order at Roznowski’s residence with Roznowski present. The officer did not remove Kim from the residence. The officer did not stay to ensure that Roznowski was safe. Instead, the officer informed Kim that Roznowski had obtained an order against him and left Kim at Roznowski’s home with Roznowski.
Kim then left the residence, withdrew money from his bank, gave the money to a friend, returned to Roznowski’s residence, and stabbed Roznowski 18 times. Roznowski’s daughters brought a wrongful death action against the City of Federal Way, both on behalf of the Estate and individually. At trial, the jury concluded that the City was liable for Roznowski’s death and awarded $1.1M to the Estate.
The facts of this case are no doubt shocking. But the Court of Appeals’s opinion is somewhat shocking on the law as well: The Court of Appeals strongly implies that under the applicable law, the City owed no duty of care to Roznowski. However, because of a series of apparent procedural mistakes by the City’s lawyers, the Court of Appeals holds that the City waived its ability to argue for the correct legal standard.
Summary Judgment — Before trial, the City moved for summary judgment, arguing that as a matter of law it owed no duty to Roznowski. The trial court denied the City’s motion. The Court of Appeals held:
Because . . . genuine issues of material fact existed at the time of the City’s motion for summary judgment, and because the matter proceeded to trial, we decline to review the denial of the motion.
No matter that, at some later point in the litigation, the material facts were no longer in dispute. Because there were material facts in dispute at the time the motion was decided, the Court of Appeals declined to review the denial of the City’s motion for summary judgment.
The message is clear: If the trial court says there are genuine issues of fact which preclude summary judgment, and later you think those issues have been resolved, don’t expect the Court of Appeals to fix your problems. You need to renew your motion for summary judgment.
Jury Instructions — Because the MSJ was denied, the case continued to trial. Of course, in light of the issue being raised in an MSJ, the “duty of care” instruction was discussed. The Court of Appeals observed that “the court and counsel for the parties extensively discussed whether a duty of care instruction should be given to the jury.” The Court of Appeals then noted the following exchange:
Court: So the way I’m going to word it, unless someone has anything you want to say is, “A city police department has to exercise ordinary care . . . in the service and enforcement of court orders” . . . .
[City Lawyer]: For the way you are presenting the case, I think that’s appropriate. I will take exception for other reasons.
In the City’s exceptions to the Court’s proposed instruction, the City stated the following:
[The instruction] is a statement of the City’s duty to exercise ordinary care . . . . Given that we are talking about a failure to enforce exception, we think it should be done in the manner that we have proposed by instructing on the elements and then asking specific questions.
The Court of Appeals, after noting the requirements for objecting to an instruction as set forth in CR 51(f), stated that it was “unclear from this record whether the City’s objection is anything more than an objection to the wording of the instruction, as there is no further specific explanation here of the basis of any substantive concerns of the City.” (emphasis added).
Because “the City did not objection in substance” to the instruction, the instruction became the unassailable “law of the case.” Accordingly, the Court of Appeals limited its review to “whether there is sufficient evidence to sustain the verdict under the instructions given” — regardless of whether those instructions were an accurate statement of the law. (emphasis added).
This case therefore presents another reminder to make specific objections to jury instructions, and to make sure those objections are clearly in the record, if you want to preserve your objections on appeal.
Rule 50(a) Motion — As discussed above, the City did not renew its MSJ at a later pre-trial stage. The City did, however, move for a dismissal under CR 50(a) after the close of the Estate’s case in chief. The trial court denied the motion. On appeal, the City challenged the trial court’s denial of the CR 50(a) motion.
The Court of Appeals, however, held that it could not review the trial court’s decision on the CR 50(a) motion because the City failed to renew the motion under CR 50(b) after the jury returned its verdict. While Washington law is silent on the question, the Court of Appeals looked to federal law interpreting the FRCP and followed the federal rule: If a party fails to renew its CR 50(a) motion pursuant to CR 50(b) (or move for a new trial) then the party forfeits its right to review of the trial court’s denial of its CR 50(a) motion.