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Nielsen v. Port of Bellingham7/30/2001
seen.
The Port's second denied instruction states:
In order to support a finding of negligence, a temporary unsafe condition of the premises, which was not created by the defendant or defendant's employees, and which was not caused by negligence on defendant's part, must either have been brought to the actual attention of defendant or defendant's employees or it must have existed for a sufficient length of time and under such circumstances that defendant or defendant's employees should have discovered it in the exercise of ordinary care. Clerk's Papers at 218.
It would have been improper for the trial court to have given this instruction as there was no evidence that the unsafe condition was created by a third person. See Glenn v. Brown 28 Wn. App. 86, 88-89, 622 P.2d 1279 (1980) (reversible error to give this instruction where there was no evidence that the unsafe condition was created by a third party; giving this instruction in the absence of such evidence misstates the law as to landowner's duty to business invitees).
CLOSING ARGUMENT
The Port argues that Nielsen's closing argument was unduly prejudicial. Specifically, the Port maintains that Nielsen ridiculed the personal opinions of Port employees and improperly drew the jury's attention to the Port's investigative efforts after Nielsen's accident.
In Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 539, 998 P.2d 856 (2000), our Supreme Court outlined the following inquiry to examine alleged prejudicial misconduct of counsel as grounds for a new trial in a civil case:
As a general rule, the movant must establish that the conduct complained of constitutes misconduct (and not mere aggressive advocacy) and that the misconduct is prejudicial in the context of the entire record{.} . . . The movant must ordinarily have properly objected to the misconduct at trial, and the misconduct must not have been cured by court instructions. (Quoting 12 James Wm. Moore, Federal Practice sec. 59.13(2)(c)(I)(A), at 59-48 to 58-49 (3d ed. 1999)).
The Port claims that the following passages are objectionable: It's kind of pathetic. Mr. Choat I'm sure is a nice guy{.} . . . But I'm sorry about Mr. Choat. I mean, he was on record as saying when you pressure wash a dock it doesn't make it less slippery. He actually said that and that is astonishing I would think to most of you. . . . And he finally came into court and he admitted, 'Well, all right, yeah, I admit that they do get algae on them and pressure washing them does make them much less slippery.'
Well, there's something wrong here when their expert says, 'Oh, we just pressure wash for aesthetics.' That is what this case is all about. That's what they believe and that is why they didn't do it and that's why Joyce Nielsen got hurt. Report of Proceedings 1/19/00 at 912, 963.
They {the Port} never even got a hold of her. They never wrote her a letter. They thought Joyce Nielsen would go away. They thought it doesn't sound like much. She broke her wrist. Well, I guess that is not that big of a deal. If we just shine it on maybe she will go away. Id. 1/19/00 at 961.
The Port raised this objection for the first time in its motion for new trial. Thus, any alleged error in allowing such comments was waived by the Port's failure to make a contemporaneous objection. 'This is especially true when the trial court instructs the jury that arguments are not evidence and that argument not supported by evidence is to be disregarded.' Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 334, 858 P.2d 1054 (1993).
Even if waiver
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