IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAVID WALTER,

Respondent,

v.

SPEE WEST CONSTRUCTION 

CO., a Washington Corporation 

and general contractor,

Appellant,

 No. 82139-3-I

 DIVISION ONE

 PUBLISHED OPINION

FIDELITY & DEPOSIT CO OF MD,

Defendant.

SMITH, J. — David Walter was working in a trench at a construction site 

when an excavator bucket crushed his leg. He sued Spee West Construction 

Co. for negligence, and a jury found that Spee West’s negligence was a 

proximate cause of Walter’s injury, that Walter’s non-economic damages totaled 

$4.5 million, and that Walter was 10 percent contributorily negligent. Spee West 

appeals, challenging the court’s decision not to give an implied assumption of the 

risk jury instruction and its decision to give a lighting-up instruction. Because the 

assumption of the risk instruction was not warranted and the lighting-up 

instruction was supported by substantial evidence, we affirm.

FACTS

In April 2018, Spee West was working on a construction project at Mt. Si 

High School, and subcontracted with Continental Dirt Contractors for utilities 
No. 82139-3-I/2

2

installation. Walter, who had 15 years of construction experience, was offered a 

job as a pipe-layer for Continental Dirt and began work on April 11. On that day, 

he met with his foreman and the other members of the Continental Dirt crew, and 

worked most of the day with Scott White, an excavator operator, fixing cracks in 

the sewer line at an excavation site.

On Walter’s second day on the job, he again worked with White, digging a 

second excavation site to install a plug in the sewer line. Walter finished that 

project while White moved to a third site, and then Walter went and joined him. 

At the third excavation site, the goal was to remove a sewer line. White used the 

excavator to dig down to the sewer line and Walter helped install a trench box, a 

piece of equipment used to protect workers from a possible trench cave-in. The 

trench box consisted of two eight feet tall side panels separated by spreader bars 

used to keep the walls apart. Once the trench box was installed, Walter’s 

foreman told him to go into the trench to dig down and install a pump. Walter got 

into the trench and began digging at the farthest point in the trench from the 

excavator, where the concrete column from under a manhole served as a wall. 

He dug out a pile of debris and signaled for White to remove it, which White did. 

When White brought the excavator bucket back, Walter signaled for it to 

go down, anticipating that White would continue digging at the other end of the 

trench, closer to the excavator. Instead, White brought the bucket all the way 

down and smashed it into the concrete pipe. Smashing the concrete and 

removing it was the planned method for removing the sewer line, but Walter had 
No. 82139-3-I/3

3

not realized the plan until White brought the bucket down.1 Once Walter saw 

what White was doing, he “got onboard.” White brought the bucket up again, and 

Walter stepped back against the spreader bars at the end of the trench box, in a 

place where he could see and be seen by White, and signaled for the bucket to 

come closer. Walter testified as to what happened next: “so the bucket had 

come up, it’s coming in. And then I told him, ‘Down,’ and I told him ‘Down, down.’ 

And when I glanced up to see if he was looking at me, it looked like he was 

looking at [the excavator bucket’s] teeth, not me.” The bucket continued coming 

closer and started crushing Walter‘s legs against the spreader bars. Walter 

began feeling a “terrible” pain and started screaming until the pressure of the 

bucket released.

White, the only other witness to this event, testified that he could not see 

Walter at the time of the accident, that he was looking at the front of his bucket, 

and that he thought it was the curling of the bucket, not a movement forward, that 

crushed Walter’s legs. He also testified that the work had been proceeding 

safely up until that point and that there was no reason for Walter to feel unsafe in 

the thirty minutes leading up to the injury.

Following the accident, Walter was taken to the emergency room and 

stayed in the hospital for three days before being discharged with a knee brace 

and crutches. An MRI2 indicated a hole in the cartilage behind his kneecap, a 

 1 While there was some evidence that a person did not need to be in the 

trench while a pipe was being removed in this way, there was also evidence that 

it is a common practice. 

2 Magnetic resonance imaging.
No. 82139-3-I/4

4

tear on the meniscus, bruising of the bones, fluid, and muscle strains. Walter’s 

pain did not improve with physical therapy and he was referred to an orthopedic 

surgeon. Walter had surgery in December 2018, which helped, but his pain 

continued to get worse. Walter was eventually cleared to return to work in June 

2019, but had to take a job as an excavator operator, rather than a pipe-layer, 

because of the pain in his knee.

In December 2019, Walter sued Spee West for negligence. The case 

proceeded to a jury trial in September 2020. Evidence at trial established that 

standard procedure is for the person in the trench to direct the excavator with 

hand signals and that the excavator operator is supposed to stop moving the 

bucket if they lose sight of the hand signals. The parties introduced evidence of 

certain abnormalities at the construction site—the trench box was at an angle, 

not level; White was using a larger than usual excavation bucket—but ultimately 

Walter’s theory of the case was that Spee West, through White, was negligent 

through its failure to follow Walter’s hand signals and continuing to move the 

excavator without looking at his hand signals. 

Walter’s medical expert, Dr. David Spanier, testified that the accident 

banged the bones in Walter’s left knee together, causing bruising of the bone and 

a hole in the cartilage behind his left kneecap which was the source of Walter’s 

pain. Dr. Spanier also testified that the accident caused a tear in Walter’s 

meniscus that caused his knee to lock and buckle, but that this problem had

ultimately been resolved with surgery. Spee West’s medical expert, Dr. Alan 

Brown, opined that Walter’s pain was probably not related to the excavator 
No. 82139-3-I/5

5

accident. Dr. Brown also testified that the cartilage defect had been present 

since a 2005 soccer injury and that the defect was not caused by the 2018 

accident. 

At the end of trial, Spee West proposed an implied assumption of the risk 

jury instruction. The court declined to give the instruction, finding that there was 

not substantial evidence that Walter had released Spee West from its duty of 

care. Over Spee West’s objection, the court did give the jury a lighting-up 

instruction, which provided,

If your verdict is for the [p]laintiff, and if you find that:

(1) before this occurrence the [p]laintiff had a bodily or mental 

condition that was not causing pain or disability; and

(2) because of this occurrence the pre-existing condition was 

lighted up or made active,

Then you should consider the lighting up and any other injuries that 

were proximately caused by the occurrence.

The jury found that Spee West was negligent, that its negligence was a 

proximate cause of injury to Walter, and that Walter’s non-economic damages 

totaled $4.5 million. It also found that Walter was negligent and that 10 percent 

of the negligence was attributable to Walter. 

Spee West appeals.

ANALYSIS

Standard of Review

“The general test for reviewing jury instructions is whether the instructions, 

read as a whole, allow counsel to argue their theory of the case, are not 
No. 82139-3-I/6

6

misleading, and properly inform the trier of fact of the applicable law.” Kirk v. 

Wash. State Univ., 109 Wn.2d 448, 460, 746 P.2d 285 (1987). We review 

alleged legal errors in a jury instruction de novo. In re Det. of Taylor-Rose, 199 

Wn. App. 866, 880, 401 P.3d 357 (2017). However, “[w]e review a trial court’s 

decision to give a requested jury instruction for an abuse of discretion.” Fox v. 

Evans, 127 Wn. App. 300, 304, 111 P.3d 267 (2005). The court should instruct 

the jury on theories that are supported by evidence, but if a theory lacks 

substantial evidence, the court must not instruct the jury on it. State v. Hoffman, 

116 Wn.2d 51, 111, 804 P.2d 577 (1991); Fergen v. Sestero, 174 Wn. App. 393, 

397, 298 P.3d 782 (2013), aff’d, 182 Wn.2d 794, 346 P.3d 708 (2015). 

“Substantial evidence” in this context means that the theory “ ‘rise[s] above 

speculation and conjecture.’ ” Fergen, 174 Wn. App. at 397 (quoting Bd. of 

Regents of the Univ. of Wash. v. Frederick & Nelson, 90 Wn.2d 82, 86, 579 P.2d 

346 (1978)). In evaluating whether substantial evidence supports an instruction, 

we view the evidence in the light most favorable to the party requesting the 

instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 

(2000). “[A]n erroneous jury instruction is not grounds for reversal unless it 

affects or presumptively affects the outcome of the trial.” Torno v. Hayek, 133 

Wn. App. 244, 253, 135 P.3d 536 (2006).

Implied Primary Assumption of Risk Instruction

Spee West challenges the court’s decision to not instruct the jury on 

implied primary assumption of the risk. We conclude that substantial evidence 
No. 82139-3-I/7

7

did not support the instruction, and that therefore, the court did not err by not 

giving it.

Implied primary assumption of the risk is a bar to recovery in cases where 

the “plaintiff consented—before any act by the defendant—to relieve the 

defendant of any duty regarding a specific known hazard.” Lascheid v. City of 

Kennewick, 137 Wn. App. 633, 641, 154 P.3d 307 (2007). Unlike contributory 

negligence, wherein a person’s unreasonable assumption of the risk 

proportionally reduces their right to recover, implied primary assumption of the 

risk is a complete bar to recovery because the plaintiff has entirely negated the 

defendant’s duty with regard to the risks assumed. Scott v. Pac. W. Mtn. Resort, 

119 Wn.2d 484, 498-99, 834 P.2d 6 (1992). To warrant the instruction, “[t]he 

evidence must show the plaintiff (1) had full subjective understanding (2) of the 

presence and nature of the specific risk, and (3) voluntarily chose to encounter 

the risk.” Kirk, 109 Wn.2d at 453. 

Here, Spee West contends that Walter was aware that pipe laying 

involves the risk of getting hit by an excavator bucket and that he voluntarily 

encountered this risk. Specifically, Spee West contends he voluntarily 

encountered the risk when he continued work despite being surprised by the pipe

removal plan and the bucket size and when he signaled for the excavator bucket 

to come nearer to him. However, Walter did not suggest that an unclear plan for 

removing the pipe or the unavailability of a smaller bucket caused the accident, 

but instead only contended that, “if [Walter’s] hand signals had been followed, 
No. 82139-3-I/8

8

there would have been no injury.”3 There was no substantial evidence that the 

excavator operator not following hand signals is a risk inherent in and necessary 

to pipe laying, and Spee West does not contend that it did not have the duty to 

follow Walter’s hand signals. Instead, it argues that it was Walter’s hand signals

that brought the excavator bucket so dangerously close to him. This underlying 

factual issue—whether Spee West was negligent because White did not follow 

Walter’s hand signals or whether White did follow the hand signals and therefore 

Spee West was not negligent—was appropriately put before the jury. Kirk, 109 

Wn.2d at 454-55, 457 (trial court did not err by rejecting primary assumption of 

the risk instruction because although plaintiff may have assumed some risks

inherent to cheerleading, defendant remained liable to the extent the plaintiff’s 

injuries resulted from other risks, such as negligent coaching). A contributory 

negligence instruction was appropriate because there was evidence that Walter 

assumed the risks that are inherent in pipe-laying, but Spee West failed to put 

forward any evidence that Walter consented to the specific risk of the excavator 

operator ignoring his hand signals. See Scott, 119 Wn.2d at 503 (no implied 

assumption of the risk because, while plaintiff in skiing accident “did assume the 

risks inherent in the sport[,] . . . he did not assume the alleged negligence of the 

operator.”). Therefore, the trial court did not err by rejecting Spee West’s 

assumption of the risk instruction.

 3 In closing arguments, Walter told the jury, “When [Spee West was] 

negligent in not following his hand signals and proceeding after they didn’t see 

him and crushed his knee, that is why he has all of these symptoms for the rest 

of his life. There’s nothing else.” 
No. 82139-3-I/9

9

Spee West disagrees and contends that this case is analogous to ReedJennings v. Baseball Club of Seattle, 188 Wn. App. 320, 351 P.3d 887 (2015). In 

that case, Reed-Jennings was hit by a foul ball during batting practice before a 

Seattle Mariners baseball game. Reed-Jennings, 188 Wn. App. at 324. 

Although Reed-Jennings contended that “she did not fully subjectively 

understand the specific risk that she could be hit and injured by a foul ball sitting 

in an unscreened seat during batting practice when multiple batted balls are 

simultaneously in play,” we noted that she was familiar with baseball games, 

chose to sit in an unscreened section, knew foul balls could and did reach the 

stands where she was sitting, and that she had wanted a foul ball to come near 

her. Reed-Jennings, 188 Wn. App. at 334-35. We concluded that ReedJennings “subjectively appreciated the risk of foul balls and she voluntarily chose 

to encounter that risk,” and that the “specific mechanism of the foul ball entering 

the stands ha[d] no bearing on the outcome.” Reed-Jennings, 188 Wn. App. at 

335-36. 

In this case, by contrast, Walter was not voluntarily choosing to encounter 

the risk of being crushed and he is not merely challenging the specific 

mechanism of his injury. Unlike Reed-Jennings and the foul balls, he anticipated 

that he would be in control of the excavator and did not consent to relinquishing 

that control. White agreed at trial that “the man in the trench is the boss” and that 

as an excavator operator, he was supposed to always follow Walter’s hand 

signals. Thus, while Walter might have assumed some risks inherent to pipelaying, he did not assume the risk of Spee West’s negligent operation of the 
No. 82139-3-I/10

10

excavator. Kirk, 109 Wn.2d at 454-55, 457. Spee West remains liable for the 

risks resulting from that negligent operation.

Lighting-Up Instruction

Spee West next challenges the court’s decision to give a lighting-up jury 

instruction on the grounds that there was no evidence that a preexisting condition 

was lit up by the accident. We conclude that the court did not abuse its 

discretion by giving this instruction.

If an “injury lights up or makes active a latent or quiescent infirmity or 

weakened physical condition occasioned by disease, then the resulting disability 

is to be attributed to the injury, and not to the preexisting physical condition.” 

Zavala v. Twin City Foods, 185 Wn. App. 838, 860, 343 P.3d 761 (2015); see 

also Harris v. Drake, 152 Wn.2d 480, 494, 99 P.3d 872 (2004) (“When an 

accident lights up and makes active a preexisting condition that was dormant and 

asymptomatic immediately prior to the accident, the preexisting condition is not a 

proximate cause of the resulting damages.”). Put another way, the plaintiff’s 

“previous physical condition . . . is immaterial and recovery may be had for the 

full disability independent of any preexisting or congenital weakness if the 

[plaintiff’s] prior physical condition is not deemed the cause of the injury but 

merely a condition on which the real cause operated.” Zavala, 185 Wn. App. at 

860-61.

Here, Spee West concedes that there was some evidence that Walter had 

a preexisting condition and that it was not actively causing pain or disability 

before the accident, but contends that the evidence did not establish on a more 
No. 82139-3-I/11

11

probable than not basis that the preexisting condition was lit up by the accident. 

However, viewed in the light most favorable to Walter, substantial evidence 

supports this element of lighting-up. Dr. Spanier and Dr. Brown both testified that 

after the accident, Walter had a hole in the cartilage behind his left kneecap. 

Unlike Dr. Spanier, Dr. Brown testified that this defect had existed in that location 

on Walter’s cartilage since 2005 and that it was not caused by the 2018 accident. 

Dr. Spanier, on the other hand, testified that the hole was the source of the pain 

in Walter’s knee, and that after the 2018 accident, there was bruising in the 

kneecap that lined up with the defect, consistent with bones banging together 

where the defect was. Dr. Spanier also testified to other factors that indicated 

that the 2018 accident had caused Walter’s pain, such as the fact that in 2020, 

the cartilage around that same area of the knee cap had softened. The jury was 

not required to accept or reject either witness’s testimony in its entirety, and 

could rely on any testimony, regardless of which party introduced it. Brewer v. 

Copeland, 86 Wn.2d 58, 74, 542 P.2d 445 (1975); Whitchurch v. McBride, 63 

Wn. App. 272, 275, 818 P.2d 622 (1991). Thus, although no doctor testified that 

Walter had a preexisting defect in his kneecap cartilage that began causing pain 

as a result of the 2018 accident, the jury could believe Dr. Brown’s testimony that 

the defect was preexisting and Dr. Spanier’s testimony that the same area was 

banged by bones during the accident and was subsequently the source of his 

pain.4 This is sufficient evidence from which the jury could find that the 2018 

 4 Spee West contends that there was insufficient evidence that the 

accident lit up a preexisting defect because Dr. Brown only testified that it was 

“[p]ossible” that his preexisting problem was causing his pain. However, the 
No. 82139-3-I/12

12

accident lit up a preexisting defect. Because the evidence supporting the theory 

rises above speculation and conjecture, the court did not abuse its discretion by 

giving the lighting-up instruction. Fergen, 174 Wn. App. at 397.5 

We affirm.

 

WE CONCUR:

 

combined testimony from Dr. Brown that that portion of Walter’s cartilage had a 

preexisting defect, and from Dr. Spanier that that spot of the cartilage was injured 

during the accident and was the source of Walter’s pain, is what provides the 

most compelling support for this theory. This testimony was given on a moreprobable-than-not basis.

5 Moreover, we note that any error would be harmless. The lighting-up 

instruction served to make clear to the jury that causation could not be negated 

merely by the presence of a dormant preexisting condition. Harris v. Drake, 116 

Wn. App. 261, 288, 65 P.3d 350 (2003), aff’d, 152 Wn.2d 480, 99 P.3d 872, is 

instructive. In that case, Division Two held that the trial court did not err by 

excluding evidence of a preexisting condition because the condition was dormant 

and asymptomatic prior to the accident. Harris, 116 Wn. App. at 288. The 

existence of the condition “had no tendency to prove a fact of consequence to 

the action” because it could not serve to negate causation. Harris, 116 Wn. App. 

at 288. Similarly, here, Spee West does not contend that Walter’s 2005 injury 

was symptomatic before the 2018 accident, and so the 2005 injury does not have 

any impact on the ultimate issue of whether the 2018 injury was the proximate 

cause of Walter’s pain and suffering. The jury found that Spee West’s 

negligence caused Walter’s pain and suffering, and both parties agree that 

Walter’s 2005 injury cannot negate that causation.