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Mathis v. Ammons

January 21, 1997

DEBORAH KAY MATHIS, APPELLANT,
v.
JAMES WALTER AMMONS AND EVA AMMONS, HUSBAND AND WIFE; AND JAMES STANLEY AMMONS AND KAY AMMONS, HUSBAND AND WIFE, RESPONDENTS.



Appeal from Superior Court of Cowlitz County. Docket No: 91-2-00395-6. Date filed: 03/14/95. Judge signing: Hon. Don L. McCulloch. Original Opinion of December 20, 1996,

Authored by J. Dean Morgan. Concurring: Karen G. Seinfeld, Elaine M. Houghton.

The opinion of the court was delivered by: Morgan

ORDER AMENDING OPINION

The court filed its published opinion in this case on December 20, 1996. Mathis moved for reconsideration on January 8, 1997. Responding to that motion, the court now rules:

1. Whereas the sentence at pages 7-8 of the court's opinion previously read:

In short, it makes the breach of a statutory duty admissible but not necessarily sufficient to prove negligence, and it abolishes, subject to exceptions not pertinent here, the doctrine of negligence per se[,] that sentence is now amended to read:

In short, it makes the breach of a statutory duty admissible but not necessarily conclusive on the issue of negligence, which is the same as saying that it abolishes, subject to exceptions not pertinent here, the doctrine of negligence per se.

2. Footnote 16 is hereby amended to read as follows:

16 Yurkovich, 68 Wash. App. at 653-54. In her brief, and again in a motion for reconsideration, Mathis argues that Yurkovich is contrary to the statements in the text. She bases her argument on four sentences selectively drawn from the Yurkovich opinion.

When the opinion is read as a whole, however, it holds (1) that under RCW 5.40.050, evidence showing breach of a statute is evidence of negligence, not negligence per se (in other words, that evidence showing breach of a statute is admissible on, but not necessarily conclusive of, the issue of negligence); (2) that RCW 5.40.050 did not alter the common law principle that a trial court can direct a verdict on negligence if and only if, in light of all the evidence, reasonable minds could reach but one Conclusion; and (3) that the plaintiff, Yurkovich, had presented evidence on which reasonable minds could reach but one Conclusion regarding negligence. Thus, the opinion concludes that the trial court did not err by directing a verdict.

2. In all other respects, the motion for reconsideration is denied.

IT IS SO ORDERED.

DATED this day of, ...


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