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Honegger v. Yoke''s Washington Foods Inc.

August 27, 1996


Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 94-2-00777-1. Date filed in Superior Court: 1/13/95. Superior Court Judge signing: WILLIAM GRANT.

Petition for Review Denied April 2, 1997,

Author: Philip J. Thompson. Concurring: John A. Schultheis. Dissenting: Dennis J. Sweeney

The opinion of the court was delivered by: Thompson

THOMPSON, J. -- Adam K. Honegger appeals a jury verdict in his favor on assault and battery and negligence claims against Yoke's Washington Foods, Inc., and its employees. Mr. Honegger contends the trial court erred in permitting the jury to reduce the award of damages for the assault and battery by his contributory fault. We agree and remand for a new trial.

Yoke's operates a grocery store in Spokane. This lawsuit arose out of personal injuries Mr. Honegger sustained when Yoke's employees allegedly chased and beat him after they saw him shoplifting cigarettes from the store. *fn1 Mr. Honegger alleged causes of action for assault and battery and negligence. Yoke's asserted contributory fault as an affirmative defense.

The jury found Yoke's employees committed an assault and/or battery on Mr. Honegger and Yoke's was negligent in supervising them. The jury set damages at $11,979.40, and also found that 70 percent of the damages were attributable to Mr. Honegger's fault. Accordingly, the court entered judgment in the amount of $3,593.82 plus court costs.

The dispositive issue is whether the trial court properly instructed the jury as to the plaintiff's contributory fault. *fn2 Washington has adopted contributory fault as a method of apportioning damages in actions based on fault. RCW 4.22.005; see Geschwind v. Flanagan, 121 Wash. 2d 833, 854 P.2d 1061 (1993).

Mr. Honegger first contends contributory fault did not apply to his negligence claims against Yoke's. Mr. Honegger contends Yoke's negligence was a result of its policy of aggressively pursuing shoplifters and its negligent supervision of employees. Because he was not responsible for Yoke's policy nor involved in the hiring and training of its employees, he contends any instruction on contributory fault would have been improper. He argues, essentially, that unless his contributory fault relates directly to one of Yoke's acts or omissions, contributory fault should not reduce the consequences of the defendant's negligence. We disagree.

Contributory fault is conduct by the plaintiff that fell below the standard to which he should have conformed for his own protection and which contributed as a legal cause to his injury. Geschwind, 121 Wash. 2d at 837; Restatement (Second) of Torts § 463, at 506 (1965); W. Page Keeton et al., Prosser and Keeton on Torts § 65, at 451 (5th ed. 1984).

A plaintiff's culpability is not of the same nature as the defendant's. Restatement (Second) of Torts § 463 cmt. b (1965). A defendant's negligence relates to a failure to use due care for the safety of others, but a plaintiff's negligence relates to a failure to use due care for his own protection. Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash. 2d 230, 588 P.2d 1308 (1978). In Washington, a plaintiff who "has voluntarily engaged in behavior which increases the risk of injury ... may be held to be predominantly liable for the injuries occurring as a result thereof." Geschwind, 121 Wash. 2d at 839. Also, a plaintiff who does not directly cause the injury-producing event may be held more liable for his or her injuries than the tortfeasor. Shorter v. Drury, 103 Wash. 2d 645, 695 P.2d 116, cert. denied, 474 U.S. 827, 88 L. Ed. 2d 70, 106 S. Ct. 86 (1985). In Geschwind, the court held that an intoxicated passenger can be more at fault for injuries sustained in an automobile accident than the negligent driver when the passenger knew or reasonably should have known the driver was intoxicated. Geschwind, 121 Wash. 2d at 838-39. In Shorter, the court held that a patient who refused to accept blood transfusions may be more at fault than a doctor who negligently performed an operation and the patient bled to death as a result of both her injuries and her refusal to accept a transfusion. Shorter, 103 Wash. 2d at 657.

Under the Geschwind and Shorter reasoning, a suspect may be at fault for injuries he sustained while fleeing the scene of a crime, even though he did not directly cause the injury-producing event. It would be appropriate, therefore, to instruct the jury to reduce the damages related to a negligence claim to the extent of such a plaintiff's contributory fault. *fn3

However, this reasoning does not apply to intentionally caused damages. Under Washington's statutory scheme, fault includes "acts or omissions . . . that are in any measure negligent or reckless" as well as the "unreasonable assumption of risk" and the "unreasonable failure to avoid an injury...." RCW 4.22.015. Intentional torts are not included in the definition, and the legislative history demonstrates the omission was purposeful: "The idea is to permit the trier of fact to consider all the conduct short of what would be considered an intentional tort and make a reduction of the plaintiff's recovery for his or her share." Senate Journal, 47th Legislature (1981), at 635 (emphasis added); see Schmidt v. Cornerstone Invs., Inc., 115 Wash. 2d 148, 161-62, 795 P.2d 1143 (1990).

Assault and battery are intentional torts. See 16 David K. DeWolf & Keller W. Allen, Wash. Prac., Tort Law & Practice § 9.2, at 220 (1993). A plaintiff's contributory fault cannot be used to reduce a defendant's liability for assault and battery. The trial court therefore erred in instructing the jury to reduce Mr. Honegger's total damages, because that portion of the damages related to assault and battery was not subject to reduction by Mr. Honegger's contributory fault.

We next must consider whether Mr. Honegger waived the error by failing to request an instruction that would have required the jury to segregate his damages between the negligence and assault and battery claims. Even if Mr. Honegger bore the burden of requesting segregation, *fn4 he has satisfied that burden here. During the jury instruction conference, his counsel first argued any instruction on contributory fault would have been improper. When the trial court correctly disagreed, Mr. Honegger's counsel then argued, as he did before this court, that contributory fault should not apply to damages attributable to the assault and battery claim, and suggested instructing the jury to that effect. The court refused the suggested instruction, which would have helped to avoid the error we identify today. Having failed to convince the trial court, first, to ...

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