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Nielsen v. Port of Bellingham7/30/2001
is non-responsive testimony and requested a jury instruction to disregard the answer, which the court provided. Juries are presumed to follow the trial court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). In light of the cautionary instruction, we cannot conclude that Papetti's testimony prejudiced the trial.
Charles Emley and Arthur Choat's Testimony
The Port next argues that the court erred when it allowed Nielsen to elicit improper opinion testimony from Bill Emley and Arthur Choat regarding the efficacy of pressure washing the docks. In the motion in limine hearing, the trial court ruled that Emley and Choat could testify as fact witnesses based on their experience as Port employees, but could not testify as expert witnesses.
Emley testified that he was the maintenance manager at Squalicum Harbor at the time of Nielsen's fall, and was in charge of supervising the cleaning of the docks. Choat testified that he was the Squalicum Harbor Master, and was in charge of budgeting for maintenance and safety issues at Squalicum Harbor. In their personal capacities working as employees for the Port at the time of Nielsen's accident, Emley and Choat could permissibly testify regarding the Port's pressure washing policies based on their direct supervisory experiences. The record indicates that this is what they did. The court did not abuse its discretion in allowing such testimony into the trial.
Connie Orafanos' Testimony
The Port next claims that the court erred when it allowed testimony by Connie Orafanos, who was in charge of filing incident reports for the Port, that she received information that Nielsen had fallen on algae. The Port also argues that Nielsen was impermissibly allowed to elicit testimony regarding the Port's efforts to investigate Nielsen's claim. However, as Nielsen points out, the Port argued that Nielsen had actually fallen on ice, not on algae. Nielsen was properly permitted to rebut this claim through Orafanos' testimony. Moreover, to the extent that the court ruled testimony regarding the Port's investigation off-bounds, the record shows that such testimony was sufficiently curtailed by evidentiary rulings sustaining the Port's objections.
JURY INSTRUCTIONS
The Port argues that the court abused its discretion when it denied two of its proposed jury instructions. '{A} defendant is not prejudiced by the rejection of a proposed instruction if the instructions given are a correct statement of the law and allow the defendant to argue his theory of the case{.}' State v. Porter, 58 Wn. App. 57, 63, 791 P.2d 905 (1990) (citing State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988)). A specific instruction is not necessary when a more general instruction adequately explains the law. State v. Portrey, 102 Wn. App. 898, 10 P.3d 481 (2000).
The Port's first denied instruction states: 'Every person has a duty to see what would be seen by a person exercising ordinary care.' Clerk's Papers at 215. The Port argues that this instruction was necessary to allow the Port to argue that Nielsen should have seen the slippery algae since she had previously walked over the same surface on her way to visit Wilkins. However, the Port was able to make this argument based on the instructions the court gave the jury. The jury was given instructions on ordinary care, contributory negligence, and was also instructed that the Port was not liable for known or obvious dangers unless it should anticipate the harm despite such knowledge or obviousness. These instructions adequately explained the law on this issue, and allowed the Port to argue that Nielsen should have seen what was there to be
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