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McCluskey v. Handorff-Sherman12/21/1992
Wallace McCluskey was killed in a 2-car collision on State Road 900. His widow, Nadine McCluskey, on her own behalf and as guardian of her minor children, brought a survival action and wrongful death action against the State of Washington and against Timothy Handorff-Sherman, the driver of the other car. A jury found
both defendants negligent and awarded Mrs. McCluskey $1,682,984.37 in damages.
The State then moved for a new trial, alleging irregularities in the proceedings in the form of collusion between plaintiff and defendant Handorff-Sherman and errors of law in the admission of evidence and in jury instructions. The trial court denied the State's motion and the State now appeals. We affirm.
Facts
In the late afternoon of January 13, 1989, 16-year-old Timothy Handorff-Sherman, an unemployed high school dropout, was driving home to Renton in his 1973 Mustang. He was accompanied by a few friends with whom he had shared several pipes of marijuana during the course of the day. It was raining hard and, as he turned off Interstate 5 onto Martin Luther King Way (State Route 900), it started to snow.
Proceeding east on Martin Luther King Way, Handorff-Sherman stopped at the first traffic light. His was the second car in the inside lane when the light changed, but he wanted to pass the car in front of him and moved into the righthand lane to do so. He then accelerated in order to complete the passing maneuver and found himself heading downhill toward a "dip" in the road where water had collected. Continuing to accelerate, he moved back toward the lefthand lane. The Mustang's tires lost traction on the wet roadway surface and the car slid across the median into oncoming traffic, striking Wallace McCluskey's car, forcing it down an embankment. McCluskey was thrown from his car and died at the scene.
In her complaint, Nadine McCluskey alleged that Handorff-Sherman negligently operated his vehicle and that the State had "maintained a hazardous and unsafe roadway" and had "failed to adequately and properly separate eastbound and westbound traffic." John Hoglund, generally
known as a plaintiffs' lawyer in personal injury cases, agreed to represent the indigent, uninsured, and still unemployed Handorff-Sherman on a pro bono basis. Handorff-Sherman obtained Hoglund's name through the Puget Sound Legal Services Foundation, for whom Hoglund had previously defended low income clients, pro bono, in automobile accident cases.
McCluskey made numerous motions in limine. Handorff-Sherman joined in some and made no objection to others. For example, Handorff-Sherman joined in McCluskey's motion to exclude any reference to Handorff-Sherman's marijuana use and he did not object to plaintiff's motion to prohibit any mention of annuities Wallace McCluskey may have had. (Hoglund later contended that his failure to object with respect to the annuity issue was an oversight.) The trial court denied both of those motions.
In his opening statement, Hoglund advised the jury that his client accepted partial responsibility for the accident and that he would not contest the plaintiff's damages. However, he asserted that the State "was a partner in that responsibility" because of its negligent failure to place warning signs or to construct a median barrier to separate eastbound and westbound traffic.
At trial, McCluskey presented results of tests performed by the State that indicated that the friction of the road surface at issue was below the desirable minimum and was in a category that "should be monitored for indications of potential hazards." The evidence also showed that the State failed to take any ac
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