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Nielsen v. Port of Bellingham7/30/2001
was in error. 'Under the public duty doctrine, no liability may be imposed for a public official's negligent conduct unless it is shown that 'the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general.'' Taylor v. Stevens Cy., 111 Wn.2d 159, 163, 759 P.2d 447 (1998) (citation omitted). Nielsen's negligence claim against the Port alleged that the Port breached a duty to Nielsen as a business invitee, and was not based on an alleged duty owed to the public in general. Moreover, 'we have not applied the public duty doctrine where the State engages in a proprietary function{.}' Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d 1257, 753 P.2d 523 (1987). By charging moorage fees to customers like Dr. Wilkins, the Port was operating in a proprietary, rather than a governmental, capacity. The public duty doctrine does not apply.
MOTION FOR NEW TRIAL
The Port next argues that the court erred when it denied its motion for new trial. CR 59 provides several bases for the grant of a new trial, among which the Port argued that the court abused its discretion by making allegedly erroneous evidentiary rulings and by denying the Port's proposed jury instructions, that comments made in Nielsen's closing argument amounted to misconduct to the Port's prejudice, that the evidence did not support the jury verdict, that the damages are so excessive as to indicate that the verdict must have been the result of passion or prejudice, and that substantial justice has not been done. We examine each of these arguments in turn and conclude that the trial court did not abuse its discretion when it denied the Port's motion for new trial.
EVIDENTIARY OBJECTIONS
The admissibility of evidence is within the sound discretion of the trial court and will be reversed only upon a showing of abuse of discretion. State v. Lynch, 58 Wn. App. 83, 792 P.2d 167 (1990). An abuse of discretion occurs when the decision is ''manifestly unreasonable or based upon untenable grounds or reasons.'' Industrial Indem. Co. v. Kallevig, 114 Wn.2d 907, 926, 792 P.2d 520, 7 A.L.R.5th 1014 (1990) (quoting Davis v. Globe Mach. Mfg. Co., Inc., 102 Wn.2d 68, 77, 684 P.2d 692 (1984)). If a trial court makes an erroneous evidentiary ruling, the question becomes 'whether the error was prejudicial, for error without prejudice is not grounds for reversal.' Brown v. Spokane Fire Protection Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983) (citing Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983)). 'Error will not be considered prejudicial unless it affects, or presumptively affects, the outcome of the trial.' Id. (citing James S. Black & Co. v. P & R Co., 12 Wn. App. 533, 537, 530 P.2d 722 (1975)).
Alcohol Consumption Evidence
The Port argues that the court erred when it excluded evidence that Nielsen had consumed one and a half alcoholic drinks prior to her fall. The Port argues that because Nielsen had eaten very little that day, it was entitled to introduce evidence of intoxication to support a jury finding of contributory negligence.
Although we might have ruled differently from the ruling made by the trial court in this instance, we do not substitute our judgment for that of the trial court in determining whether there was an abuse of discretion. Rather, the question is whether the court had a tenable basis for its evidentiary ruling. In Madill v. Los Angeles Seattle Motor Express, Inc., 64 Wn.2d 548, 552, 392 P.2d 821 (1964) our Supreme Court held it error to permit the jury to consider whether plaintiff-driver was under the influence of, or affected by
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