IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SHALISA HAYES, individually, and

as the personal representative of

THE ESTATE OF BILLY RAY SHIRLEY

III, and on behalf of statutory beneficiary,

BILLY RAY SHIRLEY JR.,

Respondent,

BILL'S TOWING AND GARAGE, INC.,

a Washington corporation, and

THOMAS A. LOMIS and JANE DOE

LOMIS, and the marital community

composed thereof,

Appellants,

and

RICHARD E. WELCH and JANE

DOE WELCH, and the marital

community composed thereof; and

KOLLECTED SOULS SECURITY,

a Washington Sole Proprietorship

owned by RICHARD WELCH,

Defendants.

No. 73968-9-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: September 6, 2016

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Trickey, J. —The issue of comparative negligence is a jury question unless

the evidence is such that all reasonable minds would agree that the plaintiff had

exercised the care that a reasonably prudent person would have exercised for his

or her own safety under the circumstances. Lundberg v. All-Pure Chem. Co., 55

Wn. App. 181, 187, 777 P.2d 15 (1989). Here, reasonable minds could disagree

about whether the decedent, Billy Ray Shirley, exercised reasonable care for his

safety when he was killed while attending a party at an unauthorized after hours
No. 73968-9-1 / 2

club. Accordingly, the trial court erred when it did not permit the jury to consider

Shirley's comparative fault in this wrongful death action. We reverse and remand

for a new trial.

FACTS

Thomas Lomis is the owner of Bill's Towing and Garage, Inc. He also owns

the property in Tacoma, Washington on which this business is located. The

property consists of a large lot and a two-story building. The top story of the

building is approximately 3,000 square feet.

In September 2010, Lomisand Richard Welch entered into a one-year lease

for the top story of the building. Lomisand Welch dispute the purpose ofthe rental.

Lomis's brother testified that Welch rented the space for storage, to do upholstery

work, and to teach his children karate. In contrast, Welch testified that he rented

the space for "a social gathering and to do mechanic work on [his] motorcycles

and cars."1 Welch is the founder of a motorcycle club called the "Kollected Souls."

Welch maintains that he told Lomisthat he planned to use the space as a Kollected

Souls motorcycle club.

By December 2010, members of the community knew the space as the

"After Hours Club."3 The club was open after the normal bar hours, beginning at

approximately 2:00 a.m. Shawna Randall, who frequented the club, testified that

the After Hours Club was similar to other clubs. Patrons had to pay a cover charge

and show identification to be admitted. The club had a dance floor, a disc jockey,

1Report of Proceedings (RP) (Dec. 12, 2013) at 471.

2RP(Dec. 12, 2013) at 468.

3RP(Dec. 11, 2013) at 359.

'2
No. 73968-9-1 / 3

and sold alcohol.

On July 1, 2011, Welch vacated the property. He claims that he turned the

property over to another motorcycle club called the "Global Grinders."4 He admits

that he did not tell Lomis that he was turning over his lease to this group. He also

admits that he did not obtain written permission to sublet the property, as required

by the lease.

Early in the morning on August 27, 2011, the Global Grinders held a party

at the After Hours Club. According to Randall, who was present that morning,

there were over 100 people in attendance. Among those present were Randall's

teenage son, Ricky Washington, and histwo friends—Gino Horsley and Shirley.

At some point that morning, a shooting brokeout. Chaos erupted inside the

club. While the sequence of events is unclear, witnesses reported hearing two

rounds ofgunshots. After the second round ofgunshots, Randall discovered that

Shirley had been shot. Despite her efforts to resuscitate him, Shirley died at the

scene.

Following Shirley's death, Shirley's mother, Shalisa Hayes, on behalf of

Shirley's estate and the statutory beneficiaries, commenced this action against

Lomis and Bill's Towing and Garage, Inc. (collectively Lomis), and against Welch

and Kollected Souls Security (collectively Welch). She brought claims of

negligence, premises liability, and Consumer Protection Act violations, chapter

19.86 RCW. Lomis asserted Shirley's comparative negligence as an affirmative

defense.

4RP(Dec. 16, 2013) at 584.
No. 73968-9-1/4

Welch subsequently filed for bankruptcy. He listed Hayes as a creditor. In

February 2013, the bankruptcy court granted Welch a discharge, which included

any judgment from this suit. Thereafter, Hayes sought relieffrom the automatic

bankruptcy stay. She obtained an order from the bankruptcy court allowing her to

pursue this wrongful death lawsuit to determine liability byWelch and other parties.

The bankruptcy court's order stated that "no money judgment shall be entered

personally against Richard and Jennifer Welch" but that creditors were permitted

to seek compensation from the Welches' insurance policies.5

Following these bankruptcy courtproceedings, Lomis moved in the superior

court to exclude Welch as a party for the purpose of establishing joint and several

liability. He argued thatWelch should be dismissed because he wasimmune from

liability and had no insurance. Hayes argued that judgment against Welch was

proper and that the collectability ofthe judgment was an issue for the bankruptcy

court.6 The trial court denied the motion to dismiss Welch.

Before trial, Hayes moved to strike Lomis's affirmative defense ofShirley's

comparative fault. She asserted that comparative fault was inapplicable in the

context of an intentional tort, that there was no evidence that Shirley was negligent,

and that Shirley acted reasonably in an emergency situation. The trial court

granted this motion and struck the defense.

The case proceeded to a jury trial against Lomis and Welch on both liability

and damages. Hayes argued that Lomis was liable because he failed to make the

building safe and bring it up to code. She presented testimony from Lloyd Swick,

5 Clerk's Papers (CP) at 547.

6 CP at 373-74.
No. 73968-9-1 / 5

a code enforcement officer; from Randall, who was present on the morning of the

shooting; and from Mark Lawless, a general contractor.

At the close of Hayes's case, Lomis moved for a directed verdict. He argued

that itwas purely speculative whether the building's deficiencies were a proximate

cause of Shirley's death. The trial court denied this motion.

At the close of Lomis's case, Lomis moved to amend his answer to conform

it to the evidence presented at trial. Specifically, he sought to include the

affirmative defense of comparative fault and argue that Shirley's negligence was a

proximate cause of his death. The trial court treated this as a motion for

reconsideration and denied it based on failure of proof.

Atthe end ofthe trial, the court addressed jury instructions. Lomis proposed

three jury instructions relatedto Shirley's alleged status as a trespasser. The court

declined to give the three instructions, reasoning that there was no evidence that

Shirley was a trespasser on the day he was killed.

The jury returned a verdict in favor of Hayes. The jury found Lomis 40

percentliable and Welch 60 percentliable. The jury awarded $70,000 to Shirley's

estate, $250,000 to Hayes, and $70,000 to Shirley's father.

Following the verdict, Hayesreturned to the bankruptcy courtand moved to

amend the prior bankruptcy order to allow judgmentto be entered against Welch.

The bankruptcy court granted Hayes's motion and modified its prior order to allow

entryofa judgment against Welch. The order stated that Hayes could notseek to

collect or recover on the judgment against Welch. It also stated that it did not

permit "the co-defendants to seek to collect any recovery for contribution or
No. 73968-9-1 / 6

indemnity" from Welch.7

Thereafter, Hayes moved in the superior court for an entry of judgment

consistent with the jury verdict and the amended bankruptcy order. Lomis opposed

entry of the judgment. He asked the court to enter judgment that he was only

severally liable for 40 percent of the total damage award.

The trial court entered judgment against all defendants, including Welch.

The judgment states that "[t]he defendants are jointly and severally liable for the

damages consistent with RCW 4.22.070."8 It also states, "No collection action

shall be taken against Defendant Welch consistent with the Bankruptcy Order

issued on February 13, 2014."9

Lomis appeals.

ANALYSIS

Preservation of Issues

As an initial matter, Hayes asserts that none of the issues raised by Lomis

are properly before this court because Lomis failed to renew his motion for

judgment as a matter of law or move for a new trial. She is incorrect. No such

posttrial motion is required. Washburn v. City of Federal Way, 178 Wn.2d 732,

749-52, 310 P.3d 1275 (2013). Lomis has preserved the issues before us.

Denial of Directed Verdict

Lomis contends that the trial court erred when it denied his motion for a

directed verdict based on lack of evidence establishing proximate cause. He

7 CP at 599.

8 CP at 602.

9 CP at 602.
No. 73968-9-1 / 7

argues that there was no evidence that any building deficiency or alleged

negligence on his part or on the part of Bill's Towing was a proximate cause of

Shirley's death. Accordingly, he asserts that we should reverse and direct entry of

judgment in his favor. We disagree.

"Proximate cause has two elements: cause in fact and legal causation."

Moore v. Haqqe. 158 Wn. App. 137, 148, 241 P.3d 787 (2010). "'Cause in fact

refers to the "but for" consequences of an act—the physical connection between

an act and an injury.'" Moore. 158 Wn. App. at 148 (quoting Hartley v. State, 103

Wn.2d 768, 778, 698 P.2d 77 (1985)). "To establish cause in fact, a claimant must

establish that the harm suffered would not have occurred but for an act or omission

of the defendant." Joyce v. Dep't of Corn, 155 Wn.2d 306, 322, 119 P.3d 825

(2005). "There must be a direct, unbroken sequence ofevents that link the actions

of the defendant and the injury to the plaintiff." Joyce. 155 Wn.2d at 322.

"Ordinarily, cause in fact is a question for the jury. But the court maydecide

this question as a matter of law if 'the causal connection is so speculative and

indirect that reasonable minds could not differ.'" Moore. 158 Wn. App. at 148

(footnote omitted) (quoting Dohertv v. Mun. of Metro. Seattle, 83 Wn. App. 464,

469, 921 P.2d 1098 (1996)). "The cause of an accident may be said to be

speculative when, from a consideration of all the facts, it is as likely that it

happened from one cause as another.'" Moore. 158 Wn. App. at 148 (internal

quotation marks omitted) (quoting Jankelson v. Sisters of Charity of House of

Providence in Territory of Wash., 17 Wn.2d 631, 643, 136 P.2d 720 (1943)).

We review a motion for a directed verdict de novo. Ramev v. Knorr. 130
No. 73968-9-1 / 8

Wn. App. 672, 676, 124 P.3d 314 (2005). "A directed verdict is appropriate if, as

a matter of law, there is no substantial evidence or reasonable inference to sustain

a verdictfor the nonmoving party." Chanev v. Providence Health Care. 176Wn.2d

727, 732, 295 P.3d 728 (2013). "A motion for a directed verdictadmits the truth of

the evidence of the non-moving party and all inferences that reasonably can be

drawn therefrom." Ramev. 130 Wn. App. at 675-76. "The evidence must be

considered in the light mostfavorable to the nonmoving party." Ramev. 130Wn.

App. at 676.

Here, the trial court properly denied the motion for a directed verdict.

Viewed in the light most favorable to Hayes, the evidence is sufficient to create a

jury question as to whether the building deficiencies were a proximate cause of

Shirley's death.

Lawless, Hayes's expert, testified about several problems with the

building's exits. For example, a double door along the south side of the building

was out of compliance with the Tacoma Municipal Code, due to the fact that the

doorwas unmarked with exiting orillumination signage and lacked panicbars. The

stairway on the outside of the building was not properly maintained, and the

southwest exit ramp was noncompliant with standard discharge. The ramp was

slippery, steep, and did not have any rails, which impacted the ability of people to

egress. Additionally, the building did not have a sufficient number ofexits.

Lawless also testified about the circumstances surrounding Shirley's death.

Shirley's body was found in the threshold of a door that was open. Lawless's

testimony about theevents on themorning oftheshooting wasbased on his review

8
No. 73968-9-1 / 9

of various depositions and declarations, including those from Shirley's friends—

Washington and Horsley.

Lawless testified that Washington had trouble exiting the building after shots

were fired. According to Washington, it was very hard to open one of the doors.

In addition, the walls and passageways inside the building were confusing. At one

point, Washington found himself inside of a closet instead of going out the door.

Washington and Horsley ultimately jumped out of windows. Lawless testified that

the "lack of a panic bar contributed to Washington's inability to efficiently exit the

building."10 He also testified that if the stairway had been accessible and properly

maintained, there would have been a means of escape on the side of the building

from where Washington and Horsley jumped.

According to Lawless, Washington said that he could have gotten out safely

if there had been adequate exits. Similarly, Horsley said that if there had been

proper exits, the boys could have gotten out safely. Lawless expressly testified

that this included Shirley. There was no objectionto this testimony at trial, and this

testimony is not challenged on appeal.

As Lawless's testimony reveals, both Washington and Horsleystated that if

there had been proper exits, Shirley could have exited the building safely. Given

the difficulties that Washington and Horsley experienced in exiting the building, it

is a reasonable inference that Shirley had similar troubles. While the evidence in

this case gives rise to competing inferences, we must view the evidence in the light

most favorable to Hayes. In doing so, we conclude that the evidence supports a

10 RP(Dec. 11, 2013) at 318.
No. 73968-9-1/10

reasonable inference to sustain the jury's determination that the building defects

were a proximate cause of Shirley's death. The trial court properly denied the

motion for a directed verdict.

Comparative Fault

Lomis next contends that the trial court erred by not allowing the jury to

allocate fault to Shirley pursuant to RCW 4.22.070. Specifically, he argues that

the trial court erred when itgranted Hayes's pretrial motion to strike this affirmative

defense and when it denied Lomis's motion to amend his answer to include this

defense and argue it to the jury. He asserts that we should remand for a new trial.

We agree.

We review a trial court's ruling on a motion to strike an affirmative defense

for abuse of discretion. Pitman v. Holland Am. Line USA. Inc.. 163 Wn.2d 236,

244, 178 P.3d 981 (2008). We also review a trial court's denial of a motion to

amend the pleadings to conform to evidence for abuse of discretion. In re

Disciplinary Proceedings Against Bonet. 144 Wn.2d 502, 510, 29 P.3d 1242

(2001).

"'A trial court abuses its discretion when the ruling is manifestly

unreasonable or based upon untenable grounds or reasons.'" Veit. ex rel. Nelson

v. Burlington N. Santa Fe Corp.. 171 Wn.2d 88, 99, 249 P.3d 607 (2011) (internal

quotation marks omitted) (quoting Salas v. Hi-Tech Erectors. 168Wn.2d 664, 668-

69, 230 P.3d 583 (2010)). A trial court's discretionary ruling is unreasonable or

based on untenable grounds when it is based on an error of law. Washington

State Physicians Ins. Exch. & Ass'n v. Fisons Corp.. 122 Wn.2d 299, 339, 858

10
No. 73968-9-1 /11

P.2d 1054 (1993). We review alleged errors of law de novo. Barton v. Dep't of

Transp.. 178 Wn.2d 193, 202, 308 P.3d 597 (2013).

Here, Hayes moved to strike Lomis's affirmative defense of comparative

fault on three bases: (1) comparative fault was inapplicable in the context of an

intentional tort, (2) Shirley was not negligent, and (3) Shirley acted reasonably in

an emergency situation. The trial court granted the pretrial motion to strike on the

first basis. It stated, "[A]s to the comparative fault ofthe decedent, it's out. Plaintiff

says this is an intentional tort, nota negligence case."11

The trial court's reasoning was erroneous. It is true that intentional acts are

not included in the statutorydefinition of "fault" in the contributory and comparative

fault statutes, and thus, they are "'inappositeto the determination offault pursuant

to RCW 4.22.070(1).'" Morgan v. Johnson. 137 Wn.2d 887, 895-96, 976 P.2d 619

(1999) (quoting Welch v. Southland Corp.. 134 Wn.2d 629, 635, 952 P.2d 162

(1998)). As a result, intentional tortfeasors are not entitled to the benefit of

proportionate liability, and negligent tortfeasors are not entitled toapportion liability

to an intentional tortfeasor. Morgan. 137 Wn.2d at 896; Tegman v. Accident &

Med. Inves.. Inc.. 150 Wn.2d 102, 115-16, 75 P.3d 497 (2003).

But here, no intentional torts were pleaded. Rather, Hayes only brought

claims sounding in negligence. Further, Lomis did not seek to apportion fault to

an intentional tortfeasor. Instead, he sought to apportion fault to Shirley based on

Shirley's own negligence. This was proper. Comparative fault was not precluded,

and the trial court erred when it concluded otherwise. Accordingly, the trial court

11RP(Dec. 6, 2013) at 21.

11
No. 73968-9-1/12

abused its discretion when it granted Hayes's pretrial motion to strike the

affirmative defense of Shirley's comparative fault.

The trial court also abused its discretion when it denied Lomis's motion to

amend his answer to include the defense of comparative fault and argue this

defense to the jury. This ruling was based on the court's conclusion that there was

a failure of proof.

"In order to prove contributory negligence, the defendant must show that

the plaintiff had a duty to exercise reasonable care for [his or] her own safety, that

[he or]she failed to exercise such care, and that this failure is a cause of [his or]

her injuries." Gorman v. Pierce Ctv.. 176 Wn. App. 63, 87, 307 P.3d 795 (2013),

review denied. 179Wn.2d 1010, 316 P.3d 495 (2014). '"[T]he issue of contributory

negligence is a jury question unless the evidence is such that all reasonable minds

would agree that the plaintiff had exercised the care which a reasonably prudent

[person] would have exercised for his [or her] own safety under the

circumstances.'" Lundberg. 55 Wn. App. at 187 (quoting Stevens v. State. 4 Wn.

App. 814, 816, 484 P.2d 467 (1971)). "[A]ll evidence and reasonable inferences

must be interpreted in the light most favorable to the challenging party." Lundberg.

55 Wn. App. at 187.

In this case, reasonable minds could disagree about whether Shirley

exercised the care that a reasonably prudent person would have exercised under

the circumstances. The testimony in this case established that Shirley had been

turned away from the premises approximately eight months prior to the shooting

and that Welch had made it clear to Shirley that he was not welcome on the

12
No. 73968-9-1/13

property. It also established that on the morning of the shooting, Shirley and his

friends were involved in a fight inside of the club. In addition, Randall testified that

she believed she saw Shirley outside the building after the first round of gunshots,

but after the second round of gunshots, she found Shirley inside the building

suffering from a gunshot wound.

Based on this evidence, a jury could conclude that Shirley did not act

reasonably under the circumstances. A jury could also find that this conduct was

a proximate cause of Shirley's death. The court erred by not allowing the jury to

consider the issue of Shirley's contributory negligence. A new trial is warranted.

Hayes argues that the emergency doctrine precludes the defense of

comparative fault. Her argument is not persuasive.

In general, "[u]nder the emergency doctrine, a person who is suddenly

confronted by an emergency through no negligence of his or her own and who is

compelled to decide instantly how to avoid injury and who makes such a choice as

a reasonably careful person placed in such a position might make, is not negligent

even though it is not the wisest choice." Humes v. Fritz Cos.. Inc.. 125Wn. App.

477, 494, 105 P.3d 1000 (2005). "An instruction on this doctrine is appropriate

only when there are facts presented from which the trier offact could conclude that

the emergency arose through no fault ofthe person seeking to have the doctrine

invoked." Kaooelman v. Lutz. 141 Wn. App. 580, 588-89, 170 P.3d 1189 (2007).

These authorities indicate that when there are facts that an emergency

arose through no fault of the person seeking to have the doctrine invoked, it is

proper to instruct the jury on the emergency doctrine. Kappelman, 141 Wn. App.

13
No. 73968-9-1 /14

at 589. But these authorities do not indicate that it is proper to preclude the

defense of comparative fault altogether. Accordingly, we reject Hayes's argument.

Scope of New Trial

Given our conclusion that a new trial is warranted, we next address the

scope of the new trial. Lomis asserts that the new trial should be limited to the

issue ofliability. Hayes contends that the entire matter should be retried, including

damages. We agree with Lomis.

"A new trial may be limited to certain issues where it clearly appears that

the original issues were distinct and justice does not require resubmission ofthe

entire case to the jury." Mina v. Boise Cascade Corp., 104Wn.2d 696, 707, 710

P.2d 184 (1985). "If there is a possibility that the verdict was the result of a

compromise, limiting retrial tocertain issues is improper." Mina. 104 Wn.2d at707.

The possibility of a compromise verdict has been "largely eliminated" by the

adoption of comparative negligence and the use ofspecial verdict forms. Mina,

104Wn.2dat707.

In Mina. the Supreme Court determined that reversal on a liability issue did

not require a retrial of damages when each party had the opportunity to present

evidence on damages, the special verdict from contained separate questions

related to liability and damages, and neither party argued that the amount of

damages was inappropriate. 104 Wn.2d at 707.

Here, as in Mina, both parties had the opportunity to present evidence on

damages, the special verdict form contained separate questions relating to liability

and damages, and neither party has argued that the amount of damages was

14
No. 73968-9-1/15

excessive or insufficient. For these reasons, we conclude that it is proper to limit

the new trial to the issue of liability.

Hayes distinguishes Mina and Bauman v. Crawford. 104 Wn.2d 241, 704

P.2d 1181 (1985), the other case relied on by Lomis, arguing that neither case

contemplates "a new trialwith new parties and the case being tried in a completely

different fashion."12 But neither Mina nor Bauman relied on the sameness of

parties or theories to conclude that limitation of the issues was proper. Thus, these

distinctions are immaterial.

In a statement of additional authorities, Hayes cites several cases for the

proposition that "[o]n remand of cause for new trial because of failure to submit

question ofcontributory negligence to jury, issue ofprimary negligence should also

be retried where it is factual issue, since negligence and contributory negligence

should be passed on by same jury."13 Here, there is no dispute that the issue of

primary negligence should also be retried. Thus, we need notaddress these cases

any further.

CONCLUSION

The trial courterred bynot allowing the jury to consider the issue ofShirley's

comparative negligence. Anew trial iswarranted. The new trial shall be limited to

the issue of liability.

In light of our resolution of this matter, we decline to address Lomis's

argument that the trial court erred when it did not give jury instructions related to

Shirley's status as a trespasser. We also decline to address Lomis's argument

12Resp'tBr. at 21.

13 Resp't Supp. Auth. On Scope of Re-trial at 1.

15
No. 73968-9-1 /16

that the trial court erred when it entered judgment against Welch, which resulted

in joint and several liability, but precluded the right to contribution from Welch. The

trial court can address these issues after considering the evidence presented in

the new trial and the jury's allocation of fault.

We reverse and remand for further proceedings consistent with this opinion.

I A c/k0 y p> cj

WE CONCUR:

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16