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McCluskey v. Handorff-Sherman12/21/1992
of fact, it is not conclusive evidence. See Estate of Celiz v. PUD 1, 30 Wash. App. 682, 638 P.2d 588 (1981) (utility's compliance with electrical standards in Washington Administrative Code does not mean a lack of negligence; rather it means compliance with the State's minimal requirements). Thus, even if the State's compliance with the priority array statute was properly in evidence, the State's immunity instruction is an incorrect statement of the law. See Andrews, 55 Wash. App. at 627. The trial court did not err in refusing this instruction.
IV
The State's final argument is that the court erred when it instructed the jury that it could find Handorff-Sherman was not negligent if it found that he was reacting to an emergency. The State contends that Handorff-Sherman's admission of responsibility precludes his invocation of the emergency doctrine. It is a well established principle that the emergency doctrine does not apply where a person's own negligence put him in the emergency situation. Sandberg v. Spoelstra, 46 Wash. 2d 776, 285 P.2d 564 (1955). Here, the trial judge concluded that the jury was not bound to accept Handorff-Sherman's testimony and that there was sufficient evidence for the jury to find that Handorff-Sherman crossed the center line in response to an emergency -- the loss of traction of his tires on the slippery road. Any error in the giving of this instruction would be harmless because the jury clearly rejected the emergency theory when it found Handorff-Sherman 50 percent negligent. See Thomas v. French, 99 Wash. 2d 95, 104, 659 P.2d 1097 (1983) (harmless error not grounds for reversal).
The judgment of the trial court is affirmed.
Disposition
Holding that the trial court properly denied an evidentiary hearing on alleged collusion between the plaintiff and the driver, that the evidence did not establish collusion, that evidence regarding highway project fiscal priorities was properly excluded from trial, that the State is not immune from liability, and that no instructional error was committed, the court affirms the judgment.
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