 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Nielsen v. Port of Bellingham7/30/2001
did not apply to this case, Nielsen's statements were not so flagrant as to warrant a new trial. 'In order to overturn a jury's verdict based on passion or prejudice, it must be of such manifest clarity as to make it unmistakable.' Id. at 334 (citing James v. Robeck, 79 Wn.2d 864, 870, 490 P.2d 878 (1971)). Nielsen's comments regarding the Port employees were permissible in light of their testimonies. Moreover, those comments went to the heart of Nielsen's argument that the Port was negligent in failing to adequately pressure-wash the float at Gate One. Nielsen's comments regarding the Port's post-accident behavior were improper and unprofessional, but they were not so flagrant that a timely objection could not have cured them. Nielsen's closing argument does not provide a basis for a new trial.
NEGLIGENCE JURY VERDICT
Expert Testimony on Standard of Care
The Port contests the sufficiency of the evidence supporting the jury's verdict finding the Port negligent. The Port first argues in this regard that the jury was not entitled to find negligence without expert testimony regarding the standard of care that a port district or marina operator must exercise over its marina. We disagree.
In premises liability cases, '{t}he applicable standard of care, or duty, is a question of law for the courts.' Schneider v. Strifert, 77 Wn. App. 58, 61, 888 P.2d 1244 (1995) (citing Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992)). Here, the court instructed the jury that the Port owed a duty to Nielsen as a business invitee to exercise ordinary care, including a duty 'to maintain, in a reasonably safe condition, those portions of the premises which the invitee is expressly or impliedly invited to use or might reasonably be expected to use.' Clerk's Papers at 194-95 (Jury Instructions 8 & 9). Additionally, the court instructed the jury on the Port's liability to business invitees for dangerous conditions on its premises. Clerk's Papers at 196-97 (Jury Instructions 10 & 11). The Port does not assign error to these jury instructions.
The Port argues that expert testimony was needed to elucidate 'ordinary care' as it applies to the maintenance of marinas when it comes to the removal of algae from wooden marina floats. However, expert testimony is only necessary when introducing a subject outside the common understanding of the average juror:
The rule is that in the discretion of the court expert testimony may be excluded if all primary facts can be accurately and intelligibly described to the jury, and if they, as {persons} of common understanding are as capable of comprehending the primary facts and of drawing correct conclusions from them as are the witnesses possessed of special or peculiar training, experience, or observation.
The decisive consideration in determining whether expert opinion evidence is necessary is whether the subject of inquiry is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact, or on the other hand, is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness. Edgar v. Brandvold, 9 Wn. App. 899, 904, 515 P.2d 991 (1973).
For example, we have acknowledged the necessity of expert testimony to establish the standard of care in a medical malpractice action. See, e.g., Seybold v. Neu, 105 Wn. App. 666, 19 P.3d 1068 (2001). But here, Nielsen did not need a purported 'marina expert' to explain to the jury that algae accumulating on a wood float becomes slippery when wet, or to explain that failure to regularly pressure wash such a float would pose a dangerous condition to thos
Page 1 2 3 4 5 6 7 8 9 10 11 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|