### FRIO 

### LU• U f OF APPEALS DIVISION 11 201L1/

4JUN 17 

### AIh1 8: 34 IN THE COURT OF APPEALS OF THE STATE OF WASI,, ON DIVISION II RAYNA MATTSON, Appellant,

v. AMERICAN PETROLEUM ENVIRONMENTAL SERVICES, INC_; BERND STADTHERR and JANE DOE STADTHERR, Respondents. No. 43735 -0 -II UNPUBLISHED OPINION

BJORGEN, A.C.J. — Rayna Mattson sued American Petroleum Environmental Services 

### APES) and Bernd Stadtherr, an APES employee, claiming that they negligently caused her car
accident by spilling oil on an interstate .freeway. 

### Ultimately, a jury found no negligence by Stadtherr orAPES. Mattson appeals, arguing (1) thatthe trial court erred in denying her motions for judgment as a matter of law or a new trial on liability because there was " undisputed" evidence as to APES' s negligence, and (2) that other irregularities require a newtrial, including 

### a) the trial court's refusal to apply res judicata or various forms of estoppel to prevent APES from litigating causation during the trial on APES' s and Stadtherr' s liability, ( b) multiple instructional errors, ( c) misconduct by APES' s counsel, (d) juror misconduct, and ( e) cumulative
error. We disagree and affirm. FACTS APES collects and reprocesses waste oil for reuse. Its operators, like Stadtherr, drive tanker trucks to sites where used oil is located, collect the oil, and then return it to APES' sNo. 43735 -0 -II

facility for recycling. 

### In July 2003, APES assigned Stadtherr to return a shipment ofwaste oil from Canada. Before setting out, Stadtherr followed his normal pre - trip routine and performed a federally mandated pre -

trip inspection to ensure thateverything on the truck was in properworking condition. As part ofhis inspection, Stadtherrverified that properly functioning bungee cords secured the vacuum hoses used to collectthe oil in their housings. 

### After finishing his inspection, Stadtherr left APES' s facility nearthe Port ofTacoma and
proceeded north on Interstate . 5 ( I - 5). 

### Before Stadtherr reached Federal Way, he noticed that one ofthe vacuum hoses had come loose and was dragging behind the truck. The hose had not 

### dragged forvery long;truck drivers must check - their rearview mirrors every 15 to 20 seconds and Stadtherr had not seen the hose in his last check in the mirror. Stadtherr pulled over to the side ofthe road and discovered that contact with the road and the truck' s tires had split the hose

open. 

### Mattson was also driving northbound on T -5 just after Stadtherr. A slick substance on the 

### freeway caused Mattson' s tires to lose their grip, and she lost control ofher car. She spun around several times, careened offthe interstate, and rolled down the embankment at the side of 

### the road, flipping several times before stopping. A Washington State.Patrol trooper responded to the scene ofMattson' s accident and 

### noticed a significant amount ofliquid on the roadway. The trooper summoned the Department 

### ofTransportation to clean up the slick,which was made ofa " slippery kind ofsubstance" and extended "[ m] ore than a football field" on•I - 5. Clerk' s Papers ( CP) at 1572, 1578. The trooper also summoned another state patrol unit to contact Stadtherr, who had stopped his truck on the
2No. 43735 - 0 -II 

### side ofthe road a short distance away, on the assumption that Stadtherr' s truck had a connection to the accident. The troopers later cited Stadtherr for causing the accident. 

### Mattson sued APES and Stadtherr and his marital community, alleging that they had 

### negligently allowed oil to spill onto the freeway, causing the accident and her resulting injuries. The parties exchanged cross motions for summaryjudgment before trial. Mattson first soughtjudgment that APES and Stadtherr had negligently caused her accident. Mattson' s second motion soughtjudgmentthat her accident had proximately caused her injuries and that her claims ofdamages from those injuries were reasonable. APES sought summaryjudgment on 

### the ground that it had not breached its duty ofcare. Forpurposes ofdeciding these various motions, APES asked the court to consider as true Mattson' s argument that APES had spilled the oil that caused her accident. 

### The trial court granted Mattson' s motions for summaryjudgment. The court found APES 

### and Stadtherrjointly and severally liable forthe automobile accident based on common law negligence and for all Mattson' s injuries proximately causedbythe accident. The trial court also found thatthe collision caused Mattson' s injuries, that she bore no comparative fault for the accident, and that her damages claims were reasonable. The trial court ordered a trial "solely on the issue ofthe nature and extent ofthe damages proximately caused to the Plaintiff as a result of the Defendants' negligence" and instructed thejury that, regardless oftheir verdict on other damages, the court had determined she had suffered $109,645.40 in medical costs, lost wages, 

### and other expenses. CP at 570, 574. Afterthe,trial on damages, thejury returned averdict for Mattson in excess of $ 500,000.00.

3No. 43735 - 0 -II APES appealed. It assigned errorto the trial court' s order " granting Respondent Rayna Mattson' s motion for partial summary judgment on liability." CP at 671. APES contended that 

### material issues offact remain regarding APES 's negligence and the proximate cause ofthis accident" and thatthe trial court erred by determining that APES was negligent under traditional or res ipsa loquitor theories ofnegligence. CP at 671.

On appeal, we agreed with APES and reversed summaryjudgment on liability, "because genuine issues ofmaterial fact remained as to whether [APES and Stadtherr] breached a duty
of care and, if so, whether that breach proximately caused the accident." CP at 589.. 

### Consequently, we remanded fortrial on the issue ofAPES' s and Stadtherr' s liability.

On remand, the parties tried the issue ofliability before a

### jury.' Thejury found that APES and Stadtherr had not acted negligently and therefore returned no verdict with regard to causation. Mattson sought post-verdict relief,includingjudgment as a matter oflaw under CR 50 and the grant ofa new trial under CR 59, but the trial court denied these motions. Mattson

now appeals. ANALYSIS I. MOTION FOR JUDGMENTAS A MATTER OF LAWAND ALTERNATIVE MOTION FORNEWTRIAL At the close of evidence and after the verdict, Mattson moved forjudgment as a matter of 

### law and, alternatively, for a new trial, based on the " unrebutted and undisputed evidence [of APES' s and Stadtherr' s negligence] ... presented at [the] time of trial." Br. of Appellant at 48;



### Due to the number and variety ofissues raised in this appeal, we set the relevant facts out below while analyzing Mattson' s claims of error. 4No. 43735 -0 -II

CP at 2595 -

2606, 2716 -

62. The trial court denied these motions. 2 Despite Mattson' s 

### characterization, the record contains conflicting evidence that created material issues offact.. 

### Consequently, the trial court did not err when it sentthe negligence question to thejury and denied Mattson' s post - verdict motions for relief. A. Standard of Review and Principles ofNegligence We review de novo a trial court' s denial of a motion forjudgment as a matter of law

under CR 50. Davis v. Microsoft Corp., 149 Wn.2d 521, 530 - 31, 70 P. 3d 126 (2003). Judgment

as a matter of law is appropriate if,after "' viewing the evidence most favorable to the 

### nonmoving party, the court can say, as a matter oflaw,there is no substantial evidence or
reasonable inference to sustain a verdict for the nonmoving party. "' Davis, 149 Wn.2d at 531 quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 ( 1997)). Mattson must 

### accept as true all evidence APES offered and any inferences reasonably drawn from that evidence for purposes of searching forthis substantial supporting evidence. Goodman v. Goodman, 128 Wn.2d 366, 371., 907 P.2d 290 ( 1995). Substantial evidence in support ofthe jury' s verdict is " evidence ` sufficient .... to persuade a fair - minded, rational person ' that APES 

### and Stadtherr did not breachtheir duty ofcare. Davis, 149 Wn.2d at 531 ( quoting Heiman v. Sacred Heart Hosp., 62 Wn.2d 136, 147, 381 P.2d 605 ( 1963)) ( alteration in original).

2 On appeal, Mattson assigns errorto the denial ofher motion forjudgment as a matter of law, 

### but does not specifically assign errorto the denial ofher motion for a new trial. Nevertheless, 

### her briefing adequately presents each ofthese related challenges andthe record is sufficientto review each. Accordingly, we review both challenges consistently with State v. Gower, 172 Wn. App. 31, 45, 288 P. 3d 665 ( 2012), overruled on other grounds, 179 Wn.2d 851, 321 P.3d 1178 \ 2014) (

### this court may consider issues raised without formal assignments oferror ifsufficiently briefed and the record allows review).

5No. 43735 - 0 -II 

### We review atrial court's decision to deny a motion for a newtrial under CR 59(a) for an
abuse of discretion. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 454, 191 P.3d 879 2008). A trial court abuses its discretion if it denies a motion for a new trial where the record does not contain substantial evidence to support the verdict. Palmer v. Jensen, 132 Wn.2d 193, 197 - 98, 937 P.2d 597 ( 1997). We again considerthe facts and inferences in the light most 

### favorable to the nonmoving party when reviewing the record for substantial evidence to support atrial court' s decision on a CR 59 motion for a newtrial. Hizey v. Carpenter, 119 Wn.2d 251., 271 -72, 830 P.2d 646 ( 1992). 

### A person acts negligently byfailing "to exercise such care as a reasonable person would

exercise under the same or similar circumstances." 

### Mathis v.Ammon, 84 Wn. App. 411, 416, 928 P.2d 431 ( 1997). To prove negligence, a plaintiffmust show the existence ofa legal dutyto 

### exercise ordinary care, breach ofthat duty, and thatthe breach proximately caused damages to the plaintiff. Mathis, 84 Wn.App. at 415 -16. A duty ofcare may exist by virtue ofthe common law or a statute. Mathis, 84 Wn.App. at 416 -17. Alternatively, in "' peculiar and exceptional cases'" 

### a plaintiffmay prove negligence by res ipsa loquitor,which allows thejury to infer negligence withoutthe plaintiffproving specific

acts of negligence. Curtis v. Lein, 169 Wn.2d 884, 889, 239 P. 3d 1078 ( 2010) (quoting Tinder v. Nordstrom, Inc., 84 Wn.App. 787, 792, 929 P.2d 1209 ( 1997). To invoke the doctrine of res 

### ipsa loquitor,the plaintiffmust show " he or she suffered injury,the cause ofwhich cannot be 

### fully explained, and the injury is ofatype that would not ordinarily result ifthe defendant were
not negligent." Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003). To satisfy these requirements, the plaintiff must show that
6No. 43735 - 0 -II 1) the accident or occurrence that caused the plaintiff's injury would not ordinarily happen in the absence of negligence, (2) the instrumentality or agency 

### that caused the plaintiff's injury was in the exclusive control ofthe defendant, and 3) the plaintiff did not contribute to the accident or occurrence. Lein, 169 Wn.2d at 891. B. Evidence of Negligence 

### We begin by acknowledging that Mattson presented significant evidence ofnegligent 

### conduct by APES and Stadtherr. Mattson' s expert, Christopher Ferrone,testified thatAPES and Stadtherrbreached statutory duties requiringthem to preventtheir cargo or load from "leaking, 

### spilling, blowing orfalling from" thetankertruck. Verbatim Report ofProceedings (VRP)(Mar. 28, 2012) at 505. Ferrone further stated that the measures APES and Stadtherr tookto secure the 

### hose on theirtruckfailed to satisfytheir common law dutyto exercise ordinary care. Ferrone
opined that " ultimately ... 

### the oil [causing the accident] is related tothis truck as a result ofthe hose becoming detached or partially detached ... 

### and being run over by its own wheels, and as a

consequence:putting that oil onto the pavement." VRP (Mar. 28, 2012) at 511. Ferrone stated 

### also that he saw no evidencethat suggested that anything otherthan APES' s leaking hose had caused the collision. In addition,APES' s own personnel and its expert testified in a manner that would have 

### allowed thejuryto find abreach ofthe dutyto exercise ordinary care. Both Michael Mazza, APES' s owner, and Stadtherr testified that the rough nature of I - 5 at the time caused the tanker 

### trucks to bounce violently. Stadtherrtestified that this violent bouncing could cause objects secured to the truck to come loose. APES' s own expert testified that it was foreseeable that a 

### bungee cord could break while driving atankertruck on I - 5' s rough surface. Stadtherr also testified that he saw oil on the tankertruck while inspecting the split hose. Further, Mattson 7No. 43735 -0 -II

impeached both Stadtherr and Mazza with deposition testimony indicating thatthey had accepted responsibility for Mattson' s accident. However,APES and Stadtherr also introduced evidence thatthey had complied with their common law standard ofcare. Mazza testified that APES required its drivers to inspect the bungee cords to ensure their proper function, and Stadtherr testified that he had done so on the 

### day ofthe incident. Mazza and Stadtherr both testified that other companies in the oil transport industry commonly used bungee cords for similar purposes. Stadtherr testified that when bungee 

### cords looked worn during his inspection,he would replace them before they broke, allowing the 

### juryto infer he would have done so ifthe cord at issue had appeared frayed or unsuitable. Both 

### Stadtherr and Mazzatestified thatthey had never seen abungee cord break while in motion. Both testified that otherthan the day in question they had only seen bungee cords break while being stretchedto strap down the hoses. Further, APES and Stadtherr introduced evidence indicating that they had not created the 

### oil slick on the freeway. Although Mattson hotly disputed the testimony, Mazza denied thatthe tankertruck carried oil; instead, he contended it carried onlyresidual wastewater and could not have spilled oil. Mazzawentto where troopers had stopped Stadtherr the day ofthe accident and testified that he saw no oil behind the truck. A witness testified that the slick smelled of diesel, and APES introduced evidence that such material could not have come from its truck. Finally, 

### observers described a slick extending over 200 feet in length. APES introduced evidence that it could not have dropped the volume ofmaterial comprising the slickwith its broken hose, which was vacuum sealed at both ends and contained only a minimum of residual material.

8No. 43735 - 0 -II APES also introduced evidence that it had complied with its statutory duties of care. 

### Lewis testified that any residual oil spilled bythe tearing ofthevacuum hose would not fall within the ambit ofthe regulations Mattson cited as a basis for duties ofcare. Lewis also 

### testified that Stadtherr' s pre - trip inspection, which confirmed thatthe bungee cords appeared in satisfactory condition, meantthat APES had notviolated any federal regulations. Finally, Lewis opinedthat Stadtherr' s pre - trip inspection and his and Mazza's actions afterthe hose came loose also meant that Stadtherr and APES complied with applicable state law. With regard to Mattson's common law negligence and res ipsa loquitor claims, APES and Stadtherr introduced substantial evidence thatthey had exercised ordinary care. 3 While 

### Mattson's briefadmirably summarizes the evidence supporting a conclusion that Stadtherr and 

### APES acted unreasonably, our role is not to reweigh the evidence. Instead we lookto the

evidence presented by APES, which Mattson must accept as true for her challenges. Stadtherr 

### testified that he performed the required pre - trip inspection and, in so doing, made sure the 

### bungee cords were in satisfactory condition. Stadtherr testified thatwhen bungee cords looked worn during his inspection, he would replace them before they broke. Both Stadtherr and Mazza 

### testifiedthat theyhad only seen a bungee cord breakwhile being stretched to strap downthe hoses, and never seen a cord breakwhile the truck was moving. Both also testified thatthe use 

### ofbungee cords was common in their industry. Although the court did not instruct thejury that 

### industry practice could show ordinary care, thejury could have inferred that Stadtherr and APES acted reasonably from this testimony. 

### 3 Res ipsa loquitor allows the inference ofnegligence, meaning the failure to exercise ordinary care. To the extent that APES 's evidence shows it exercised ordinary care, it allowed thejury to decline to infer negligence.No. 43735 -0 -II



### All this evidence allowed thejury to find APES and Stadtherr had acted reasonably despite the breaking of the bungee cord. See Brotherton v. Day & Night Fuel Co., 192 Wash. 362, 375 -78, 73 P.2d 788 ( 1937) ( no negligence when accident caused by mechanical failure); Adams v. W. Host, Inc., 55 Wn.App. 601, 606, 779 P.2d 281 ( 1989) ( "[ m] aterials can wear out

or break without negligence being involved "). This evidence, along with the evidence indicating that APES had not dropped the oil that caused Mattson' s crash, would also defeat Mattson' s claim that she is entitled tojudgment as a matter oflaw under res ipsa loquitur. With regard to Mattson' s claim thatAPES and Stadtherr acted negligently by violating federal regulations, APES introduced substantial evidence that it complied with its statutory 

### duties. Lewis testified any oil spilling fromthe torn hose would not violate any ofthe statutes Mattson cited. Further, Lewis testified that APES and Stadtherr had satisfied all their statutory 

### duties withthe pre -

trip inspection and their post-accident conduct. While Mattson' s expert testified differently,we deferto thejury's resolution ofcompeting testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 ( 1990). The testimony elicited byAPES allowed 

### thejuryto return averdict that APES and Stadtherrhad notcommitted negligence throughthe breach of a statute. 

### Finally,APES and Stadtherr introduced evidence indicating thatthey had not created the oil slick on the freeway because ofthe volume and nature ofthe substance on the freeway. First, observers described a slick extending over 200 feet in length and APES introduced evidence that it could not have dropped that much material because the broken hose contained only a minimum 

### ofresidual material. Further, although Mattson hotly disputed the testimony, Mazza denied that the tanker truck carried oil; instead, he contended it carried only residual wastewater and could
10No. 43735 -0 -II



### not have spilled oil. Finally, Mazza went to where troopers had stopped Stadtherrthe day ofthe accident and testified that he saw no oil behind the truck. This evidence precluded judgment as a 

### matter oflaw on any ofMattson's theories ofnegligence: ifthe oil was not APES's, APES was

not negligent. 

### Substantial evidence supports thejury's verdict. Therefore, the court did not err in 

### denying Mattson' s motions under CR 50 and CR 59. II. EQUITABLE DOCTRINES Mattson next contends that the trial court erred in refusing to preclude or estop APES 

### from arguing thatthe substance it spilled onto the highway did not proximatelycause her accident. We disagree. 

### During the summaryjudgment proceedings before the first trial,APES asked the courtto assume, for purposes ofthe motions before it,that APES had dropped the oil that had caused 

### Mattson' s accident onthe freeway. After the trial court granted summaryjudgment on liability to Mattson, APES appealed. It assigned error to the trial court' s resolving breach and causation as a matter oflaw. In an unpublished opinion we reversed the order of summaryjudgment on these bases.

Before the second trial, Mattson brought a motion in limine to exclude argument about

whether oil spilled by APES caused Mattson' s accident

### 4 The trial court denied Mattson' s

4 

### Mattson' s briefing claims thatthe trial court denied her "the opportunity to have her motion heard" because the trial courttold her initially to bring the motion as one in limine and then later 

### told her she needed to bring it as a motion for summaryjudgment. Br. ofAppellant at 57. This mischaracterizes the record. The trial court denied Mattson the chance to raise the issue as a 

### summaryjudgment motion because she failed to make the motion in atimely manner, but nevertheless devoted significant time to hearing her motion in limine and denied the motion on the merits. 11No. 43735 -0 -II



### motion, adopting APES' s argument,which it paraphrased when first discussing the issue:

In the prior summaryjudgment motion the issue came up, and the plaintiffs said for the purposes of — excuse me —

defendant said for the purposes ofthis summaryjudgment motion only we' re going to stipulate that there was oil on the road from the truck. 

### But ofcourse, we' re not in that summaryjudgment now is their contention; and therefore, the burden ofproof is on the plaintiffs to prove thatthe oil — ifthere was oil on the road, that this oil is the causation for the ultimate damages done to the plaintiff. VRP (Mar.21, 2012) at 7, 17 -19; VRP (Mar. 22, 2012) at 129 - 30. As noted,APES introduced 

### evidence attrial indicating that it had not dropped the oil that caused Mattson's accident. 

### We review de novo the applicability ofcollateral estoppel or resjudicata. Christensen v. 

### Grant County Hosp. Dist.No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004); Atl.Cas. Ins. Co. v. Or. Mut. Ins. Co., 137 Wn. App. 296, 302, 153 P.3d 211 ( 2007). We review a trial court' s 

### refusalto applythe doctrines ofequitable orjudicial estoppel for an abuse ofdiscretion. Afinson

v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P. 3d 289 ( 2012); Ford v. 

### Bellingham -

Whatcom CountyDist.Bd.ofHealth, 16 Wn.App. 709.,715, 558 P.2d 821 ( 1977). A. Res Judicata The doctrine ofresjudicata governs " the various ways in which ajudgment in one action

will have a binding effect in another." 

### Hilltop Terrace Homeowner'sAss 'n v. Island County, 126 Wn.2d 22, 30, 891 P.2d 29 ( 1995) ( citation omitted). Resjudicata bars relitigation of claims 

### already decided,meaning litigated to ajudgment on the merits. Hilltop Terrace, 126 Wn.2d at 31; DeYoung v. Cenex Ltd., 100 Wn. App. 885, 891 -92, 1 P. 3d 587 ( 2000). We determine 

### whether a court has already decided a claim by examining whether the current and past actions
share an "` identity of (1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality ofthe persons for or against whom the claim is made. "' Schroeder v. Excelsior Mgmt. 12No. 43735 -0 -I1

Grp., LLC, 177 Wn.2d 94, 108, 297 P. 3d 677 ( 2013) ( 

### quoting Mellor v. Chamberlin, 100 Wn.2d 643, 645 -46, 673 P. 2d 610 ( 1983)). Resjudicata applies to entire claims or affirmative defenses rather than to determinations

about issues. Luisi Truck Lines, Inc. v. Wash. Utils. & 

### Transp. Comm' n, 72 Wn.2d 887, 894, 435 P. 2d 654 ( 1967) ( "[ t]he doctrine of resjudicata is intended to prevent relitigation ofan entire cause of action and collateral estoppel is intended to prevent retrial ofone or more ofthe crucial issues or determinative facts determined in previous litigation."). Mattson' s claim concerns causation, an element of a cause ofaction for negligence. We therefore analyze Mattson' s
argument under the doctrine of collateral estoppel rather than res judicata.5 B. Collateral Estoppel 

### Collateral estoppel bars relitigation ofissues finally determined in one action in later proceedings. Christensen, 152 Wn.2d at 306. To successfully assert collateral estoppel to bar an opponent from relitigating an issue, a party must show 

### 1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding, (

### 2) the earlier proceeding ended in a judgment on the merits, (

### 3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding, and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. Christensen, 152 Wn.2d at 307.

However, ajudgment loses its preclusive effect if it "is vacated or reversed." 14A KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE § 35: 23, at 519, § 35: 34, at 557 (2d ed. 2009). 

### We reversed the summaryjudgment on which Mattson basesher claims ofpreclusion in
5 Even ifwe did consider Mattson' s resjudicata claim, we would have to reject it for the same reason we reject her collateral estoppel claim. As discussed below, our vacation ofthe summary 

### judgment order nullified any preclusive effect it had and resjudicata did not apply. 13No. 43735 -0 -II

an unpublished decision and remanded for trial on the issue of liability. Liability encompasses 

### breach ofa duty, but -

for causation, and legal causation. See Mohrv. Grantham, 172 Wn.2d 844, 850, 262 P. 3d 490 (2011) ( 

### citing Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 475 - 76, 656 P.2d 483 ( 1983)). Therefore, collateral estoppel does not bar APES from contesting the causation issue. C. Judicial Estoppel

Judicial estoppel prevents "` 

### a party from asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position. ' Afinson, 174 Wn.2d at 861 quoting Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 ( 2007)). Before 

### applying the doctrine to estop a party from asserting aposition at trial, atrial court must consider

1) whether the party' s later position is " clearly inconsistent with its earlier position," ( 2) whether acceptance of the later inconsistent position " would create the perception that either the first or the second court was misled," and ( 3) whether the assertion of the inconsistent position would create an unfair 

### advantage forthe asserting party or an unfair detrimentto the opposing party. Afinson, 174 Wn.2d at 861 ( quoting Arkison, 160 Wn.2d at 538 - 39). 

### Mattson also fails to satisfy any ofthe elements ofajudicial estoppel claim. As thetrial court recognized, APES specifically limited the concession at issue. It asked the courtto assume 

### the oil causing the spill came from its hose only for purposes ofdeciding the two motions for 

### summaryjudgment. Arguing causation on remand is not inconsistent with that limited concession. Additionally,we cannot say that any ofthe courts involved, the first trial court, our court, or the trial court on remand, were misled. No reasonable person reading the concession 

### would believe it went beyond its limited scope, especially since APES denied causation in its answer. Finally, Mattson should have understood that APES would contest causation on remand,
14No. 43735 -0 -II

given its statements and the instructions in our mandate. APES obtained no unfair advantage, 

### and the trial court did not abuse its discretion in declining to estop APES from arguing causation. D. Equitable Estoppel Mattson also invokes the doctrine ofequitable estoppel. This doctrine applies where ( 1)

a party makes " an admission, statement, or act inconsistent with a claim later asserted," ( 2)

another party reasonably relies on that admission, statement, or act, and (3) " injury to the relying 

### party" results " ifthe court permitsthe first partyto contradict or repudiate the admission,

statement or act." Schroeder, 177 Wn.2d at 108 -09. 

### Mattson fails to satisfy any ofthe elements ofequitable estoppel. After denying it had caused Mattson' s accident in its complaint, APES asked the trial courtto accept as true Mattson' s claim that the ruptured hose spilled the oil that caused her accident for purposes ofthe 

### motions for summaryjudgment. As the trial court recognized,APES' s concession, by its explicit terms, did not exist outside ofthe trial court' s consideration ofthe summaryjudgment motions. APES, therefore, did not take an inconsistent position when it contested causation on 

### remand. Further, Mattson could nothave reasonably relied on APES 's representation given that the terms ofthat representation warned herthat APES could contest causation in other contexts. 

### Finally,APES is not repudiating its earlierrepresentation. Again,APES asked the trial courtto accept Mattson' s claim as true for a limited set of circumstances no longer applicable at the end 

### ofthe summaryjudgment proceedings. The trial court did not abuse its discretion in declining to equitably estop APES from arguing causation.

15No. 43735 -0 -II III. JURY INSTRUCTIONS Mattson next contends that the trial court erred in its instructions to thejury. She raises
six arguments in this regard: ( 1) the court' sjury instruction 16 misstated the law concerning
negligence through violation of a statute, (2) jury instruction 16 conflicted with the instruction on res ipsa loquitur, (3) the trial court erred in declining to instruct thejury on APES' s nondelegable duties under federal law, (4) the court erred in refusing to instruct thejurythat it should consider only the fault ofAPES and Stadtherr when deliberating, (5) the trial court erred in failing to give a spoliation instruction, and (6) the trial court erred in refusing to instruct thejury that it had 

### determined APES had committed negligence as a matter of law under the doctrine ofres ipsa loquitur. We find no error. 

### We applytwo different standards of reviewto challenges tojury instructions. We review atrial court' s decision on the specific wording ofjury instructions or atrial court' s refusal to give an instruction for an abuse of discretion. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92

n.23, 896 P. 2d 682 ( 1995); 

### Goodman v. Boeing Co., 75 Wn.App. 60, 68, 877 P.2d 703 ( 1994). We review instructions de novo for errors of law. Afinson, 174 Wn.2d at 860. Instructions are 

### insufficient, and therefore legally erroneous, ifthey prevent the parties from arguing their 

### theories ofthe case, mislead thejury, or,when taken as awhole, fail to properly informthejury ofthe applicable law. Afinson, 174 Wn.2d at 860. A. Jury Instruction 16: Violation of Statute 

### Mattson maintains that the trial court erred in giving its instruction 16 instead ofher proposed instruction 22 regarding the violation ofa statute or regulation. Mattson alleges that

16No. 43735 - 0 -II the instruction given contained a " poison pill" that the evidence attrial did not support, rendering 

### it legally erroneous. Br. ofAppellant at 67. We disagree.

Plaintiffs proposed instruction 22 provided that "[t]he violation, ifany, of a statute, 

### ordinance, administrative code, or Federal Regulation is not necessarily negligence, but may be

considered by you as evidence in determining negligence." CP at 1204. This instruction 

### consisted ofthe standard language from the civil patternjury instructions. See 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 60.03, at 499 (6th ed. 2012). 

### Based on APES' s proposedjury instructions, the trial court instead gave instruction 16, which contained all ofthe language in plaintiff's proposed instruction 22, but included the optional language from the pattern instruction. The instruction read:

The violation, if any, of a statute or regulation is not necessarily 

### negligence, butmay be considered by you as evidence in determining negligence. Such a violation may be excused if it is due to some cause beyond the violator' s control, and that ordinary care could not have guarded against. CP at 2645; see 6 WASHINGTON PRACTICE, supra, § 60. 03, at 499.. Both Mattson' s proposed instruction and the.instruction given by the trial court concerned the former doctrine of negligence per se. Prior to 1986, a plaintiff could show 

### negligence by demonstrating a statutoryviolation, since the common law considered statutory breaches conclusive evidence of negligence. See Mathis, 84 Wn. App. at 416 -17. In 1986 the legislature, with exceptions not relevant here, abolished the doctrine of negligence per se and provided that a statutory breach served as evidence ofnegligence, rather than conclusive proofof it. LAWS OF 1986, ch. 305, § 910, codified as RCW 5. 40. 050. We described the " practical effect of RCW 5. 40. 050" as

17No. 43735 -0 -II

eliminat[ing] what might be called the ` strict liability' character of statutory violations under the old negligence per se doctrine, but ... allow[ing] a jury to 

### weigh the violation, along with other relevant factors, in reaching its ultimate determination of liability. Doss v. ITT Rayonier, Inc., 60 Wn. App. 125, 129 - 30, 803 P.2d 4 ( 1991). While weighing these factors, "

### the trier offact mayfind a statutoryviolation is not negligence where the violation is due to some cause beyond the violator' s control, and ordinary care could not have guarded
against the violation." Hansen v. Friend, 118 Wn.2d 476, 483, 824 P.2d 483 ( 1992). Stated 

### otherwise, thejury must determine whetherthe defendant, despite the statutoryviolation, 

### exercised ordinary care. Mathis, 84 Wn.App. at 419. The optional language in the pattern instruction reflects this question. See 6 WASHINGTON PRACTICE, supra, § 60. 03, at 499. Mattson argues that the trial court erred because APES could not meet the requirement that the " violation be due to ` some cause beyond the violator' s control. ' Br. of Appellant at 67. 

### She argues, in effect,that only emergency situations renderthe full text ofthe pattern instruction appropriate, citing commentary in the pattern instructions and Hood v. Williamson, 7 Wn.App. 355.,362, 499 P.2d 68 ( 1972) ( "[t]he most common instance where a violation of a statute has been held to be due to a cause beyond the violator' s control, which reasonable prudence could

not have guarded against, is where the violation is excused by an emergency. "). While Mattson 

### is correct that an emergency is the most common reason forfording a statutory violation beyond the.violator' s control, the fact that it is the most common demonstrates that an emergency is not the exclusive reason for finding aviolation beyond the violator' s control. APES and Stadtherr introduced evidence that supported an argument that the failure of the bungee cord was beyond their control. This evidence included Lewis' s testimony about APES' s and Stadtherr' s compliance with federal and state regulations, Stadtherr' s testimony that 18No. 43735 - 0 -II 

### he inspected the bungee cord and that it appeared in good working condition, his testimony that he would replace bungee cords that did not appear to be in good working condition, and the 

### testimony from both Stadtherr and Mazzathatthey had never seen abungee cord breakwhile in motion. From this thejury could inferthat Stadtherr exercised ordinary care and that the 

### breaking ofthe bungee cord was a simple mechanical failure that could occur "without anyfault

on the part of the person in charge ofthe vehicle." Brotherton, 192 Wash. at 375. With this evidence, the trial court was required to give the optional language in the instruction regarding a violation beyond the control ofAPES and Stadtherr so they could argue theirtheory ofthe case. Afinson, 174 Wn.2d at 860. We find no error in the trial court' s decisionto use the full pattern instruction. B. Conflict between Instruction 16 and Res Ipsa Loquitur Instruction 12 Mattson also contends that instruction 16 contradicted instruction 12, the res ipsa loquitur 

### instruction, and negated thejury' s ability to apply res ipsa loquitur to her claim. We disagree. As set out above, instruction 16 provided:

The violation, if any, of a statute or regulation is not necessarily 

### negligence, but may be considered by you as evidence in determining negligence. 

### Such a violation may be excused if it is due to some cause beyond the violator' s control, and that ordinary care could not have guarded against. CP at 2645. Instruction 12 provided:

Ifyou find that: 

### 1) the collision in this case is ofa kind that ordinarily does not happen in the absence of someone' s negligence; and 

### 2) the collision was caused by an agency or instrumentality within the exclusive control of the defendant(s); 

### then,.in the absence ofsatisfactory explanation, you may infer, but you are not required to infer, that the defendant(s) were negligent. CP at 2614. 19No. 43735 - 0 -II Mattson alleges that the language added to instruction 16 at APES' s request negated the 

### jury's abilityto find negligence under res ipsa loquitur. She cites two cases in support ofher contention that the court erred by giving irreconcilable instructions, Galvan v. Prosser Packers, 

### Inc., 83 Wn.2d 690, 521 P.2d 929 ( 1974) and Hall v. Corporation ofCatholicArchbishop of Seattle, 80 Wn.2d 797, 498 P.2d 844 ( 1972). Neither supports her claim. 

### In Galvan, a negligence and products liability case, the court gave an instruction on the 

### manufacturer' s liability,which depended partly on the defective product proximately causing the plaintiff' s injury. 83 Wn.2d at 691 -93. 

### The only definition ofproximate cause came in the

court' s general instructions on negligence. Galvan, 83 Wn.2d at 693. The Galvan court held the 

### trial court erred because foreseeability meant differentthings in negligence and strict liability claims and the general negligence instruction defined "foreseeability in the context of strict liability in too broad a sense" Galvan, 83 Wn.2d at 693. 

### Because thejury would have used the 

### broad general negligence definition offoreseeability to evaluatethe products liability claim,the Galvan court held that the trial court gave inconsistent and prejudicial instructions. In Hall, a negligence and negligence per se suit, thetrial court instructed thejury thatthe breach of a statute was negligence, and instructed itthat negligence per se " ha[d] the same effect

as any other act of negligence." 80 Wn.2d at 803. A related instruction informed thejury that 

### the Seattle building code imposed certain statutory duties on landowners. Hall, 80 Wn.2d at 798. However, a fourth instruction, given in the context of general negligence, informed thejury that

a property 

### owner is under no duty to reconstruct or alterthe premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care. 20No. 43735 -0 -II

Hall, 80 Wn.2d at 803. The court held that the trial court' s instructionthat thejury should treat 

### general and statutory negligence the same meant thatthe fourth instruction essentiallytoldthe 

### jury to find no liability underthe then existing law ofnegligence per se despite the breach ofa statutory duty. Hall, 80 Wn.2d at 803. The court reversed based on the contradictory instructions. Hall, 80 Wn.2d at 803 -04. Unlike the instructions in Galvan and Hall, instructions 12 and 16 here do not create an error when read together. Instruction 16 allowed, but did not require,thejuryto excuse any 

### statutory violation. It described the circumstances under which thejury could conclude that, despite a statutory violation, APES and Stadtherr had not acted negligently. Similarly, as discussed above, res ipsa loquitur allows, but does not require, an inference of negligence. 

### Instruction 12 properly described the circumstances where thejury could conclude that Mattson's accident spoke for itselfin terms ofshowing APES 's and Stadtherr' s negligence. The 

### jury could freely conclude that APES and Stadtherr were negligent under one theory and notthe other, negligent under both, or not negligent under either. There is no conflict between the instructions. C. Proposed Instruction 14: Nondelegable Duty 

### Mattson next contends that the trial court erred by refusing to give her proposed 

### instruction 14. That instruction would have informed thejury that federal regulations imposed a nondelegable duty requiring APES to. prevent its " load or cargo" from "

### drop[ ping], spill[ing], or leak[ing] ... on the roadway." CP at 1196. 

### Mattson offers no reason why the trial court abused its discretion in failing to give this instruction otherthan stating that testimony supported it. While witnesses did testify about the 21No. 43735 -0 -II



### nondelegable nature ofthe duty,APES did not contest the issue and giving the instruction would therefore have constituted error. State v. Fernandez, 29 Wn. App. 278, 281, 628 P.2d 827 ( 1981) trial court errs by giving an instruction on an undisputed issue). Further, we consider the 

### sufficiency ofjury instructions as awhole. Instructions 13 through 19 spoke ofthe duties owed 

### in driving or securing loads on avehicle. Instruction 4 informed thejury thatthe law ofagency imputed any breach ofthese duties by Stadtherrto APES. Thejury instructions as awhole allowed Mattson to argue hertheory ofnondelegability, and the trial court did not abuse its discretion in declining to give proposed instruction 14. D. Instruction 5: Fault of Other Entities 

### Mattson next alleges thatthe trial court erred in giving its instruction 5 inthe place ofher proposed instruction 3A. These instructions concerned the fault ofentities other than the defendants. Mattson contends that the trial court' s instruction allowed APES to impermissibly 

### argue that some other entity caused Mattson's collision. We find no abuse ofdiscretion in giving instruction 5 and declining to give Mattson's proposed instruction. As discussed, Mattson argued thatthe trial court should prevent APES and Stadtherrfrom 

### contesting that oil it spilled had caused her accident on remand. Thetrial court,however, refused to preclude or estop APES and Stadtherr from doing so. Mattson then moved to restrict 

### APES' s abilityto argue causation in otherways. She moved in limine for an order stating that i]t is ORDERED, ADJUDGED, AND DECREED that the Plaintiffs motion to preclude any 

### argument, reference, or insinuation regarding any comparative fault ofthe Plaintiff or any other third party apart from the named Defendant' s shall be and is hereby GRANTED." CP at 1460.

22No. 43735 -0 -II When the parties met with the trial court to discuss the motions in limine, APES and Stadtherr objected to Mattson' s motion for fear that it would foreclose their ability to argue they were not at fault, resulting in the following exchange:

Mattson' s counsel]: Your honor, there' s no evidence that there are any other unnamed parties. I don' t even believe they pled that. I have to look up their answer. That' s never been an issue. And that' s the whole point is that, oh, well, there' s this other random person that 

### could be responsible for this collision. You don't get to bring that up the day before trial. That' s — APES' s counsel]: 

### It's not the day before trial. If we didn't leave a 200 - foot diesel black oil slick on the roadway, somebody did. Mattson' s counsel]: It' s either that they're negligent or they' re not. That's what it comes down to. They don't getto pointto an absent person. And again, we' re getting back into the speculation [ about other causal actors], and this is the whole reason [for the motion in limine.] APES' s counsel]: 

### It's not pointing to an absent person to say that we didn't do it,and if it's there somebody else did it. I mean, that's not pointing to the fault of an unnamed party. Mattson' s counsel]: 

### Not only that, Your Honor. The rule actually-requires you name a specific unnamed party. They haven' t done that. There isn't anybody else. This is —and I move to dismiss any claim that they' re going to attempt to make right now. The Court]: Well,that' s nottheir point.At least that' s not what I heard arguing. We' re backto where you were before. APES' s counsel]: 

### Exactly. Ijust don't want to be foreclosed by this from you exercising your discretion as the evidence comes in. The Court]: Right. VRP at 119 -

21. The trial court modified Mattson' s proposed order so that it proscribed 

### argument, reference, or insinuation regarding any comparative fault ofthe Plaintiff or any other

named third party apart from the named Defendants." CP at 1460 ( emphasis added). 6

6 

### Mattson' s briefrepeatedly quotes the language ofthe trial court' s order, but modifies it so that it reads "[ un] named" instead of "named." Br. of Appellant at 78, 93 n.20; CP at 1460. The trial court used " named" in the order quite deliberately and there is no reading ofthe record that renders Mattson' s alteration faithful to what happened at trial. 23No. 43735 - 0 -II

read: Based on her proposed order onthe motion in limine, Mattson' s proposed instruction 3A

You are instructed that the Court has determined that Plaintiff is not in any 

### way at fault for this collision, nor are there any unnamed parties that are in any 

### way responsible for this collision, and therefore, you are not to considerthe fault of anyone other than the named Defendants in determining your verdict in this case. CP at 1440. 

### Given its ruling in limine,the trial court instead gave its instruction 5, which
provided only that "[

### y]ou are instructedthatthe Court has determinedthat Plaintiffis not in any way at fault for this collision." CP at 2634. Mattson claims that the failure to give proposed instruction 3A constituted error because 

### itleft her unable to argue that no other entity could have caused her accident, meaning thejury instructions prevented her from arguing her theory ofthe case. Mattson analogizes her case to Izett v. Walker, 67 Wn.2d 903, 410 P.2d 802 ( 1966). This analogy, however, is not sound. 

### In Izettthe plaintiffmade an emergency stop; the defendant failed to do so and rear - ended the plaintiff. 67 Wn.2d at 904 - 06. The trial court found the defendant negligent as a 

### matter oflaw and, based on thisfinding, refused to instructthejury, in accordance with the plaintiff's request,that the defendant was negligent because the law required following drivers to 

### maintain sufficient distance in case ofan emergency stop. Izett, 67 Wn.2d at 906 - 07. Thejury returned averdict forthe defendant, apparently based on the plaintiff's contributory negligence 

### in making the emergency stop or because thejury found the plaintiffs emergency stop had proximately caused the accident. Izett, 67 Wn.2d at 904, 908. The plaintiffappealed, claiming that the instructions did not allow him to make his case that the defendant was negligent and that 

### he had no comparable fault despite his emergency stop. The Izett court agreed and held thatthe
24No. 43735 -0 -II

failure to give the instruction on the defendant' s negligence required reversal ofthe verdict 

### because "without this instruction [onthe defendant's statutory duty to follow at a safe distance] thejury could not properly evaluate any claims of contributory negligence and proximate cause

on the part of [

the plaintiff' s] conduct." Izett, 67 Wn.2d at 906 - 07. 

### This case differs markedlyfrom Izett. Unlikethe trial court in Izett,the trial court here 

### gave thejurythe instructions necessary for Mattson to make hercase to thejury. Thetrial court instructed thejury on APES and Stadtherr's common law and statutory duties, the standard of 

### conductthey needed to adhere to in orderto satisfythose duties, and proximate cause. These instructions allowed Mattson to argue hertheory ofthe case, that she experienced an injury proximately caused by oil that APES and Stadtherr unreasonably allowed to fall onto I - 5. The evidence in connection with the instructions on proximate cause allowed her to arguethat APES had caused the accident and that no other entity had done so. Mattson's proposed alternative 

### instruction, on the other hand, directly contradicted the order in limine. The trial court did not err in issuing instruction 5 instead ofproposed instruction 3A. E. Proposed Instruction 23A: Spoliation 

### Mattson next argues thatthe trial court erred in refusing to give a spoliation instruction. 

### She contends that APES' s discarding ofthe broken bungee cord and truck hose, disposing ofthe truck before she could take pictures of it, and failure to retain the pre- and post - trip reports constituted the willful destruction ofevidence and that the trial court should have instructed the 

### jury it could infer APES destroyed evidence damaging to its defense.

25No. 43735 -0 -II



### Turning firstto the facts, after the incident Stadtherr putthe broken bungee cord in the truckalong with the broken hose. A day later, he disposed ofboth because theywere "broken"

and " useless." VRP (Apr. 2, 2012) at 869 -70; VRP (Mar.29, 2012) at 587. 

### APES retained the pre- and post - trip reports for several years afterthe accident. The experts at trial testified that APES had a statutory duty to preserve these reports for some time, 

### although the testimony conflicted as to whetherthat duty required retention forthree or six months. At some point in 2006, APES moved to a paperless file retention system due to office 

### space constraints. APES apparently planned to scan all of its older files to store them electronically before disposing ofthe physical copies. However,this effort required extensive time and effort and APES abandoned it before scanning the files relevant to Mattson' s suit,the 

### 2003 files. Bythe time Mattson asked for the files, APES had purged them. The parties contested whether APES knew of Mattson' s suit and should therefore have 

### retained the trip logs until the completion ofthe litigation. Mattson did not file suit until 2006; APES claimedthat it had no knowledge ofany possible litigation until then. Mattson, however, argued thatAPES was on notice because it had received atraffic ticket fining it for causing her

accident. 

### In 2007, after filing suit, Mattson asked APES to set up the tanker truck in the configuration used the day ofthe accident so that she could photograph it. Mazza agreed on behalf ofAPES. Mattson sent an investigator out to take the photos. Apparently, the investigator was ejected from APES' s property after an employee called Mazza to reportthe 

### incident and Mazza became upset, feeling thatthis violated the agreement with Mattson. Mazza explained that APES had not prepared the truck and that Mattson' s investigator was taking
26No. 43735 - 0 -I1 inaccurate photographs. APES sold the truck soon after the incident and before Mattson ever
obtained photographs. At trial, Mattson moved for a spoliation instruction. After hearing significant argument 

### andtestimony in and out ofthe presence ofthejury,the trial court declined to give the instruction.

Spoliation entails " the intentional destruction of evidence." Tavai v. Walmart Stores, Inc., 176 Wn.App. 122, 134, 307 P.3d 811 ( 2013). 

### W]here relevant evidence which would properly be part ofa case is within the 

### control ofa party whose interests it would naturally be to produce it and he fails to do so, without satisfactory explanation, the only inference which the finder of fact may draw isthat such evidence would be unfavorable to him." 

### Tavai, 176 Wn.App. at 134 - 35 (quoting Pier 67, Inc.v. King County, 89 Wn.2d 379,385 -86, 573 P. 2d 2 ( 1977)). Courts must determine whether to instruct thejury on the unfavorable inference allowed by spoliation based on two factors: " the potential importance or relevance of the missing evidence" and " the culpability or fault ofthe adverse party." Tavai, 176 Wn.App. at 135. We review a trial court' s refusal to give a spoliation instruction for an abuse ofdiscretion. Tavai, 176 Wn. App. at 135. 

### The trial court reasonably determined that no spoliation occurred regarding the bungee cord and hose. Courts have repeatedly held that the cumulative or insignificant nature of physical evidence weighs against a finding of spoliation. Ripleyv. Lanzer, 152 Wn. App. 296, 326, 215 P. 3d 1020 ( 2009) (

### no spoliation where testimony provides the same information offered by the evidence); Homeworks Constr., Inc. v. Wells, 133 Wn. App. 892, 899, 138 P.3d 654 2006) (

### testimony providing same information as evidence weighs against a finding ofspoliation

under the first element). Here, the trial court determined that the physical evidence was 27No. 43735 - 0 -II 

### cumulative with testimony or, given otherfactors, insignificant. Stadtherr admitted thatthe bungee cord had ruptured and allowed the hose to escape its housing. Stadtherr also testified that 

### the hose, after coming loose, had dropped down,torn open on contactwith the truck' s tires, and 

### dragged behind him while he drove on I - 5. Finally, no one took samples from the oil slick on 1- 5, so examination ofthe hose would likely not answer the question ofwhetherthe oil came from APES' s truck. 

### The trial court reasonably determined that no spoliation occurred with regard to the disposal ofthe truck. The trial court determined thatAPES had some culpability forthe lost evidence because Mattson had specifically asked for permission to photograph the truck and, 

### while Mattson had not complied with APES' s procedures for taking these photos, APES had sold 

### thetruckbefore letting Mattson take the pictures. We agree thatAPES' s decisionto sell the truck before Mattson took her pictures is troubling. However, the trial court noted that the plaintiffs had other photos and from them everyone seemed to understand what the truck looked 

### like on the day ofthe accident. Again,the cumulative nature ofthe evidence supported the trial court' s refusal to give a spoliation instruction. 

### Finally,the trial court reasonably determinedthat no spoliation occurred with regard to the pre- and post -

trip reports. Aparty need not show bad faith to establish spoliation underthe second spoliation factor,the factor concerned with the culpability ofthe adverse party. Wells, 

### 133 Wn.App. at 900. However,where no bad faith is shown,the second spoliation factor only
weighs against a party who violates a duty to preserve the evidence. Wells, 133 Wn. App. at 

### 900. The trial court found no culpabilityon APES' s part because it had preserved the reports

28No. 43735 - 0 -II 

### long afterthey needed to under federal and state law and had no specific knowledge ofany suit filed by Mattson when they disposed oftheir files. The record supports this determination. F. Instruction 12: Res Ipsa Loquitur 

### Mattson also alleges thatthe trial court erred by giving instruction 12 instead ofher proposed instruction 7. Mattson contends that the evidence entitled her to have thejury 

### instructed "on the doctrine ofRes Ipsa Loquitur as a matter of lawversus instructing thejury" to 

### applythe doctrine permissibly. Br. ofAppellant at 85. Mattson is mistaken. Mattson' s original proposed instruction on res ipsa loquitur read: The Court has determined that 1) the accident in this case is of a kind that ordinarily does not happen in the absence of someone' s negligence; 

### 2) the accident was caused by an agency or instrumentality within the exclusive control ofthe defendants; and

3) the accident was not in any way due to an act or omission of the plaintiff; 

### Therefore, in the absence of satisfactory explanation, you may infer, but you are not required to infer, that the defendant was negligent. CP at 1197. The trial court rejected this instruction, and Mattson proposed the alternate res ipsa 

### instruction given bythe court as its instruction 12. As noted, this instruction,taken from the pattern instructions read:

Ifyou find that: 1) the accident in this case is of a kind that ordinarily does not happen in the absence of someone' s negligence; 

### 2) the accident was caused by an agency or instrumentality within the exclusive control ofthe Defendant(s). 

### Then, in the absence of satisfactory explanation, you may infer, but you are not required to infer, that the Defendant(s) were negligent. CP at 2641; see 6 WASHINGTON PRACTICE, supra, § 22. 01, at 255.

29No. 43735 - 0 -II 

### The applicability ofthe doctrine ofres ipsa loquitur is a question oflaw. Lein, 169 Wn.2d at 889. As noted, res ipsa loquitur allows thejury to infer negligence where

1) the accident or occurrence that caused the plaintiff's injury would not ordinarily happen in the absence of negligence, (2) the instrumentality or agency 

### that caused the plaintiff's injury was in the exclusive control ofthe defendant, and 3) the plaintiff did not contribute to the accident or occurrence." Lein, 169 Wn.2d at 891. The trial court' s role was to determine whether Mattson met her burden of production on the res ipsa loquitur issue. See Lein, 169 Wn.2d at 889. The trial court determined that she did so and gave an instruction on res ipsa loquitur. As discussed above, the evidence did not entitle Mattson tojudgment as a matter oflaw on the issue ofnegligence. Thejury therefore needed to 

### resolve questions offact and it was for thejury to determine whether Mattson's evidence satisfied her burden ofproof. See Lein, 169 Wn.2d at 895. Mattson' s proposed instruction 

### falsely instructed thejury thatthe trial courthad already determined that the central elements of res ipsa loquitur were met. By giving this instruction the trial court would have impermissibly usurped thejury' sfunction. The trial court' s rejection ofthis invitation was not an abuse of discretion. IV. COUNSEL MISCONDUCT 

### Mattson also alleges that misconduct by defense counsel requires a newtrial under CR 59( a). Mattson alleges that APES' s counsel made repeated speaking objections, argued that an 

### unnamed party caused Mattson's accident in spite ofthe court' s order in limine,argued aboutthe circumstances of Mattson' s retention of an counsel in spite ofthe court' s order in limine, and 

### made an improper comment during closing argument. We find no grounds for reversing the jury' s verdict. 30No. 43735 - 0 -II CR 59(a)(2) allows a " new trial where misconduct ofthe prevailing party materially
affects the substantial rights ofthe losing party." Teter v. Deck, 174 Wn.2d 207, 222, 274 P. 3d 336 (2012). Reliefbased on a counsel misconduct claim requires a showing that "( 1) the

conduct complained of is misconduct, (2) the misconduct is prejudicial, (3) the moving party objected to the misconduct at trial, and (4) the misconduct was not cured by the court' s instructions." Teter, 174 Wn.2d at 226. We review a trial court' s decision on a motion for a new trial under CR 59(a)(2) for an abuse ofdiscretion. Teter, 174 Wn.2d at 222. We apply a specialized test for an abuse ofdiscretion and ask whether the misconduct " has [ created] such a feeling of prejudice ... 

### in the minds ofthejury as to prevent a litigantfrom having a fairtrial." Aluminum Co. of

Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, '537, 998 P.2d 856 ( 2000). A. Speaking Objections Mattson first alleges that APES' s counsel committed misconduct by repeatedly making speaking objections. 

### We agree, but nonetheless deny Mattson' s motion for a new trial because we deferto the trial court' s determination that the objections did not prejudice her. 

### Counsel commits misconduct by attempting to present thejury with inadmissible
evidence or impermissible argument. Teter, 174 Wn.2d at 223, 224 n.12. Speaking objections 

### can " expos[e] thejury to inadmissible evidence and inappropriate argument" and therefore constitute misconduct. Teter, 174 Wn.2d at 224 n. 12. APES' s counsel repeatedly made 

### speaking objections and the trial court admonished him for doing so. However, the trial court specifically determined that the speaking objections did not

create prejudice . sufficient to warrant a new trial. Because the trial court has the best vantage 

### point to evaluate the prejudicial effects of any misconduct, we give deference to ,its findings
31No. 43735 - 0 -II concerning prejudice. 

### Teter, 174 Wn.2d at 223 ( citing State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 ( 1991)). 

### Given this deference, and because the speaking objections do not seem to 

### have exposed thejury to any prejudicial and inadmissible evidence, we find no abuse ofthe trial

court' s discretion in denying Mattson' s motion for a new trial on this basis. See Teter, 174 Wn.2d at 223. B. Violation of Order on the Motion in Limine About Other Causal Actors Mattson next claims misconduct through violations of the trial court's order forbidding insinuating fault by third parties in causing Mattson' s accident. The trial court allowed the argument Mattson now objects to and we find no misconduct. 

### Mattson sought an order in limine preventing APES and Stadtherr from arguing they had not caused her accident. As discussed above, the court rejected Mattson' s proposed language and instead ordered that the defendants could not argue that "named" third parties caused 

### Mattson's accident, allowing the defendants to argue unnamed third parties had done so. Thus, the explicit terms ofthe order at issue allowed the argument that Mattson objects to, that APES did not cause the oil slick and so unnamed parties must have done so. There was no misconduct, and the trial court did not abuse its discretion in denying Mattson' s motion for a newtrial. C. 

### Motion in Limine Regarding Mattson' s Retention ofHer Counsel Mattson next alleges misconduct through violations ofthe trial court' s order forbidding discussion ofthe circumstances under which she retained her counsel. Again,the trial court 

### explicitly permitted APES to introduce the argument and evidence Mattson now objects to. Again, we find no misconduct.

32No. 43735 - 0 -II Before trial, Mattson 

### sought an order in limine forbidding discussion of the circumstances ofher hiring ofher counsel. The trial court granted the order,which excluded 

### evidence regarding the circumstances surrounding Plaintiff's hiring counsel, 

### including, but not limited to, any professional, business, familial, or friendship relationships between Plaintiff( s) and/or Plaintiffs' witnesses . . . for [ the] 

### purposes oftrial testimony with the possible exception of [the] spoliation issue outside the presence ofthejury. 

### CP at 1459. Mattson's counsel, in her opening statement, discussed thetestimony thejury would hear and the physical evidence it would not have. Specifically, she stated that w]hat you won't have is the ruptured hose because it was thrown away and destroyed bythe defendants.

We won' t have the bungee cord that broke because that was never — well, I don' t know if it was destroyed or thrown away.

And one of the other things that you won' t have ... is ... a pre - trip inspection report.... That' s been thrown away. We don' t have that from the 

### dateto show what they did or did not do on that day. And thatwas destroyed. VRP (Mar. 28, 2012) at 448. Six sentences into his opening statement, APES' s counsel addressed the missing evidence, stating that "after [the] accident almost three years pass until my client was sued. And we' ll leave it to your decision as to whether or not that explains why some things we' d dearly like to have for you don' t exist" VRP (Mar. 28, 2012) at 452. When counsel again referenced the destroyed evidence, Mattson' s counsel objected. APES' s counsel responded that Mattson' s counsel had opened the door. The trial court overruled the objection on that basis. VRP (March 28, 2012) at 468, 615 -16. 

### During the presentation of evidence, APES' s counsel asked Mattson how long it was
after the accident that she spoke with counsel about filing suit. She answered that she had done so within six months, but admitted that she did not know if counsel had asked APES to preserve

33No. 43735 - 0 -II
their records. Mattson' s counsel later sought a curative instruction outside the presence of the jury: Mattson' s counsel]: Your Honor, ... I specifically objected — and I apologize, but I had to make numerous objections, because .. . APES' s counsel] went into when did you hire counsel and was it our firm. None of that questioning is appropriate. But it certainly wasn't appropriate in light of the fact that I made a specific motion and the Court 

### ordered specifically that nothing going into the circumstances of hiring counsel would be discussed or would be prone to questioning.... It was a violation of the order in limine. The Court]: [ asking APES' s counsel for his argument]. APES' s counsel]: I' m sorry, Your Honor. I don' t believe it was a violation ofthe order. I didn' t ask about the circumstances surrounding it. All I asked about was the timing. The Court]: That' s how I read the order, too. I was aware ofthe order, but I didn't think it had to deal with the circumstances of hiring of 

### counsel; circumstances were they brothers, were they cousins, did you know them from some other source, those kinds of things were the circumstances. What are the terms of your fee agreement. I read it, and I I read that exactly what I intended, which was those kind of circumstances are certainly not relevant to anything. VRP (Apr.2, 2012) at 916 -19. The trial court denied Mattson' s request for a curative instruction on the ground that there was no violation ofthe order in limine. Again, thetrial court specifically allowed APES to make the arguments and admit the evidence that Mattson now objects to. Even ifwe read the order in limine as forbidding evidence or argument about when Mattson first saw counsel, the trial court determined that Mattson 

### opened the doorto it,rendering the evidence admissible, with her argument that APES had destroyed evidence. See State v. Young, 158 Wn.App. 707, 719, 243 P.3d 172 ( 2010) ( a party

can open the door to the other party admitting otherwise inadmissible evidence). APES' s
counsel committed no misconduct.
34No. 43735 - 0 -II D. Closing Argument 

### Finally,Mattson alleges that a statement byAPES' s counsel during closing argument requires a new trial.. We agree that APES' s counsel committed misconduct but disagree that the misconduct entitles Mattson to a new trial. 

### Closing arguments in this case apparently stretched on for some time, and the trial court urged Mattson's counsel to wrap things up on several occasions. After one ofthese admonitions, the following exchange occurred:

Mattson' s counsel] : Let mejust finish up, if I may, Your Honor. Trial court] : Quickly. Mattson' s counsel]: The preponderance of the evidence in this case is, ladies and gentlemen, more probably true than not true that they 

### dropped the oil and they caused this accident, and we' re here asking you to finally, after nine years, assess full responsibility and accountability. That' s what we call atonement. Atonement is notjust to say I did it. It' s to take responsibility for it. That' s why we need you. And you know, the last thing I' ll show you, and I don't need to make —

mean to make light ofthings, but — APES' s counsel]: You know, I thought we were done here, Your 

### Honor. He' s long past his time thatyou allotted both ofus.

Mattson' s counsel]: Your Honor,he doesn't like my argument so he' s trying to interrupt me. Excuse me, if I may. APES' s counsel] : I'm hungry. Mattson' s counsel] : Too bad ifyou wantto go. This is important to my client, sir. VRP (Apr. 4, 2012) at 1218 -19.

APES' s counsel committed misconduct when he stated, " I' m hungry." VRP (Apr. 4, 

### 2012) at 1219. The statement was, charitably viewed, unprofessional. Mattson did not object, 

### however, and a curative instruction telling thejury to disregard the remark could have obviated any prejudice it engendered. Mattson's failure to object underthose circumstances waives any claim oferror. Teter, 174 Wn.2d at 226. Further, the trial court found that the statement did not 35No. 43735 - 0 -II prejudice Mattson such that it should grant her a new trial. Again, the trial court saw the exchange, as well as thejurors' reaction to it,first hand and we defer to its determinations for this reason. Teter, 174 Wn.2d at 223 ( citing Lord, 117 Wn.2d at 887). V. JUROR MISCONDUCT Mattson next seeks a new trial under CR 59(a)( 1) because ofallegedjuror misconduct. 

### Specifically she contends that thejury failed to followthe trial court' s instructions about deliberations and that juror 

### 107 failed to honestly answer questions during voir dire and then injected extrinsic evidence into deliberations. We review atrial court's determinations on the existence ofjuror misconduct and its prejudicial effect for an abuse ofdiscretion. Richards v. Overlake Hosp. Med. Ctr., 59 Wn.App. 266, 271, 796 P.2d 737 ( 1990). Under that standard, we find no error in the trial court' s denial ofMattson' s motion for a newtrial based on these
allegations. Before voir dire, the court submitted Mattson' sjuror questionnaire to the venire. One of 

### the questions asked potentialjurors to disclose whether they "or someone close" to them had

worked in any ofthe listed 10 fields. CP at 38. One of these fields was " law enforcement." CP at 38. Potential juror 19 filled out the questionnaire by stating that neither he nor anyone close to 

### him had worked in any ofthe fields. 

### During voir dire, Mattson questioned two ofthe potentialjurors who had disclosed a history ofemployment with law enforcement. One potentialjuror worked as an armed guard at Joint Base Lewis -

McChord and had previously served as an air marshal. Mattson' s counsel asked about thejuror' s experience in investigating accidents and determining fault. Another

7 

### Juror 10 was designated as potential juror 19 before being seated. Thus, those references in this opinion are to the same person. 36No. 43735 - 0 -I1 

### potentialjuror had worked as a community corrections officer. Again, Mattson' s counsel asked about investigations thejuror had performed within the scope of his employment. 

### APES' s counsel later asked whether any ofthe potential jurors had " investigative experience as a private investigator, as a member oflaw enforcement, or as a military law
enforcement, investigating a potential crime or accident, anything ofthat nature ?" VRP ( Mar. 27, 2012) at 365 -66. Potential juror 19 did not respond. 

### Mattson' s counsel did speak directlyto potentialjuror 19 during voir dire. Mattson' s
counsel him ifhe had "[ a] ny concerns ... about any ofthe topics we' ve discussed here ?" VRP Mar.28, 2012) at 421. Potential juror 19 stated that he did not. Given his answers, the parties did not challenge potential juror 19, and thetrial court seated him asjuror 10. 

### Afterthe verdict,juror 6 signed a declaration alleging two differenttypes ofjuror misconduct. First,juror 6 stated that thejurors had failed to followthe proper procedures for deliberating and voting on Mattson' s claims. Second,juror 6 declared thatjuror 10 had failed to disclose his experience as an investigator forthe Occupational Safety and Health. Administration 

### OSHA) during voir dire. According tojuror 6, during deliberations juror 10 discussed OSHA investigative standards and stated that he could not find APES or Stadtherr negligent because the investigation into Mattson's accident failed to comply with those standards. Based on the declaration from juror 6, Mattson moved for a new trial because ofjuror misconduct. The trial . court denied Mattson' s motion. 

### A party may obtain a newtrial based on claims ofjuror misconduct. State v. Balisok, 123 Wn.2d 114, 117 -18, 866 P.2d 631 ( 1994). 

### Ajuror commits misconduct during voir dire by 

### misrepresenting material facts or by failing to disclose material facts. McCoy v. Kent Nursery,
37No. 43735 -0 -II

Inc., 163 Wn.App. 744, 760, 260 P. 3d 967 (2011) ( citing Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 158, 776 P.2d 676 ( 1989)). To obtain a new trial for such misconduct, a party must 

### show "that [the] juror `failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.'" 

### McCoy, 163 Wn.App. at 761 ( quoting McDonough Power Equip., Inc.v. Greenwood,464 U.S. 548, 555 -

56, 104 S. Ct. 845, 78 L. Ed.2d 663 ( 1984) and (citing In re Pers. Restraint ofElmore, 162 Wn.2d236, 267, 172 P.3d 335 ( 2007)). 

### Ajuror may also commit misconduct by injecting extrinsic evidence intojury deliberations. Balisok, 123 Wn.2d at 118. Ifajuror does so, atrial court may grant a newtrial if the losing party makes a "` strong affirmative showing of misconduct ' that overcomes the policy

considerations protecting secretjury deliberations. Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203, 75 P. 3d 944 (2003) ( quoting Balisok, 123 Wn.2d at 117 -18).

Because ofthe interest in "' 

### secret, frank and free discussion ofthe evidence by thejury ' 

### appellate courts will generally not inquire into the internal processes by which thejury reaches its verdict." Breckenridge, 150 Wn.2d at 203 -04 ( quoting Balisok, 123 Wn.2d at 117 -18). These individual or collective thought processes leadingto averdict "inhere in the verdict" and

cannot be used to impeach ajury verdict. "' Breckenridge, 150 Wn.2d at 204 - 05 ( quoting State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 ( 1988)). To test whether post-verdict statements from a 

### juror alleging misconduct concern matters inhering in the verdict,we lookto whetherthe

statements relate to "[ 

### t]he mental processes by which individualjurors reached their respective 

### conclusions, their motives in arriving at theirverdicts, the effect the evidence may have had upon thejurors or the weight particularjurors may have given to particular evidence, orthejurors'
38No. 43735 - 0 -II intentions and beliefs." Cox v. Charles WrightAcad., Inc., 70 Wn.2d 173, 179 - 80, 422 P.2d 515 1967). Alternatively, we look to "` whether thatto which thejuror testifies can be rebutted by

other testimony without probing the juror' s mental processes. "' Breckenridge, 150 Wn.2d at 205 

### quoting Gardner v. Malone, 60 Wn.2d 836.,841, 376 P.2d 651 ( 1962)). We now turn to the merits of Mattson' s allegations, mindful that we analyze the question 

### ofwhether the matters she alleges inhere in the verdict separately fromthe question ofwhether there wasjuror misconduct. Breckenridge, 150 Wn.2d at 204 n.12. A. Failure to Follow the Jury Instructions 

### Mattson first alleges thejury as a whole improperly failed to follow the trial court's procedural instructions forreaching a verdict. Thejury' s procedures for reaching its verdict, such as how it went about voting, inhere in the verdict and a party cannot impeach the verdict based on these matters. Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 768 - 70, 818 P.2d 1337 ( 1991). We therefore cannot considerjuror 6' s declaration as it relates to this allegation ofjuror misconduct. Without the declaration, Mattson can offer no evidence ofany misconduct. Given this lack ofevidence, the trial court did not abuse its discretion in denying the motion for a new trial. B. Failure to Disclose Employment History During Voir Dire 

### Mattson next alleges thatjuror 10 failed to properly disclose his experience working for 

### OSHA during voir dire. Because Mattson could provejuror 10' s previous employment as an OSHA inspector using testimony unconnected with thejury deliberations,this employment history does not inhere in the verdict.

39No. 43735 -0 -I1 We do not, however, agree with Mattson that thejuror failed to honestly answer 

### questions during voir dire. Mattson' sjuryquestionnaire asked about past employment in "law

enforcement." 

### The courts have differed wildly about whether OSHA employees work in law enforcement. Compare Matsko v. United States, 372 F.3d 556, 560 (3d Cir. 2004) administrative investigators are not law enforcement personnel for purposes ofthe federal tort
claims act " no matter what investigative conduct they are involved in ")with Ortloffv. United States, 335 F. 3d 652, 659 ( 7th Cir. 2003) ( including OSHA employees among the "potential number offederal law enforcement officials in our modem government' s alphabet soup "), 

### overruled on other grounds byAli v. Fed.Bureau ofPrisons, 552 U.S. 214, 128 S. Ct. 831, 169 L. Ed. 2d 680 (2008). Since the courts cannot decide if an OSHA employee is a law enforcement official, we decline to find misconduct in a former OSHA employee' s failure to 

### identify himselfas having worked in law enforcement. As APES argues, people commonly understand the term " law enforcement" to mean those agencies or persons sworn to uphold the state' s laws and empowered to arrest people for violations ofthose laws. Juror 10 did not work 

### in that capacity and did not commit misconduct in answering his questionnaire to this effect. 

### Mattson contends that,even ifjuror 10' s answersto thejury questionnaire did not omit material information, other questions in voir dire should have caused him to disclose his employment with OSHA. Otherjurors did disclose law enforcement experience and Mattson' s and APES' s counsel asked them and others about their experience in investigating accidents,
crimes, and determining fault. Later, Mattson' s counsel asked juror 10 if he had "[ a] ny concerns
about any ofthe topics we' ve discussed here ?" VRP (Mar. 28, 2012) at 421. Mattson contends that these questions requiredjuror 10 to disclose his investigative experience. Mattson
40No. 43735 -0 -II

askedjuror 10, however, about " concerns" he had with the topics covered in voir dire. Various courts have suggested that ajuror does not commit misconduct within the meaning ofthe McDonough test8 

### by failing to give the answer the asking party is looking forwith a vague question. E.g., Hatten v. Quarterman, 570 F.3d 595, 602 (5th Cir. 2009) (juror does not commit 

### misconduct byfailing to answerthat he had a "problem" with drugs when "problem" is
ambiguous enough that it could refer, not to addiction, but to an " allergy or an aversion "); State

v. Chesnel, 734 A.2d 1131, 1140 - 41 ( Me. 1999) (

### finding no misleading answer in voir dire because ofthe vagueness of the question). Juror 10 could have had no " concerns" with those 

### topics, meaning no worry or fear, and answered the question honestly and correctly even ifwe assume he had law enforcement experience. The vagueness ofMattson' s question prevents finding misconduct. C. Introduction ofExtrinsic Evidence During Jury Deliberations Mattson alleges thatjuror 10 committed further misconduct by discussing OSHA' s 

### investigative standards during deliberation. The statements fromjuror 6 thatMattson cites 

### explain the way thatjuror 10 weighed the evidence Mattson offered and why he voted as he did. These matters inhere in the verdict, and Mattson may not use this evidence to showjuror misconduct. Breckenridge, 150 Wn.2d at 204 - 07; Cox, 70 Wn.2d at 176 -80; McCoy, 163 Wn. 

### App. at 767 -68. The trial court did not abuse its discretion in denying Mattson's motion for a
new trial.



### 8 McDonough Power Equip., 464 U.S. at 548. 41No. 43735 -0 -II VI. CUMULATIVE ERROR/SUBSTANTIAL JUSTICE



### Finally, Mattson seeks a newtrial, either based on cumulative error orbecause thejury verdict failed to do substantial justice. We deny Mattson' s request for a newtrial on these
grounds. The doctrine ofcumulative error recognizes that multiple errors might combine to deny a litigant a fair trial, even where each individual error does not prejudice the litigant in isolation. State v. Davis, 175 Wn.2d 287, 345, 290 P.3d 43 ( 2012); 

### Storeyv. Storey, 21 Wn.App. 370, 374, 585 P.2d 183 ( 1978) ( applying cumulative error in the civil context). But even where multiple errors occur, we need not reverse on cumulative error ifthe errors " were not so egregious or 

### undulyprejudicial thatthey denied" the litigant afairtrial. Davis, 175 Wn.2d at345. Here, at most the record contains some nonprejudicial errors related to counsel misconduct. These errors do not combine to suggest that Mattson did not receive a fair trial. Mattson also seeks a new trial because " substantial justice has not been done." CR 59( 1)( 9). She cites Snyder v. Sotta, 3 Wn.App. 190, 473 P.2d 213 ( 1970), and claims that it holds that a high level of rancor at trial warrants a new trial under CR 59( a)( 7). Snyder' s holding provides little support for Mattson. In Snyder, the trial court made extensive findings aboutthe multiple ways the parties' bitterness pervaded thetrial and infected thejury, preventing both 

### sides from having afairtrial. 3 Wn.App. at 195 -98. Based on these findings, thetrial court ordered a newtrial. See Snyder, 3 Wn. App. at 195. Division Three ofour court affirmed the grant of a new trial under former CR 59(f), which allowed newtrials for failure to do substantial justice, because the trial court was best situated to determine the effect ofthe rancorous atmosphere on the parties' rights to a fairtrial. Snyder, 3 Wn. App. at 191, 198 -99. Here, the
42No. 43735 -0 -II



### trial court explicitly found that the heated atmosphere attrial did not prejudice the partiesto a 

### degree warranting a new trial. Snyder requires thatwe deferto that determination. CONCLUSION We find substantial evidence in the record to supportthejury' s verdict. We therefore 

### hold thatthe trial courtproperly denied Mattson' s motions forjudgment as a matter oflaw under CR 50 and for a newtrial under CR 59. We hold that the trial court did not en in declining to 

### preclude orestop APES and Stadtherrfrom disputing causation on remand. We also hold that the trial court did not err in instructing thejury. Finally, we find no basis for concluding that the 

### trial court abused its discretion in declining to order a newtrial based on any counsel orjuror misconduct or for cumulative error or a failure to do substantialjustice. We affirm. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered.

43