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 behalfof 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 No. 73968-9-1 DIVISION ONE UNPUBLISHED OPINION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 N> CS>
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Trickey, J. —The issue ofcomparative 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 coulddisagree 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 hoursNo. 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'sTowing 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 September2010, Lomisand Richard Welchentered into a one-yearlease 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 mechanicwork 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 similarto other clubs. Patrons had to pay a cover charge and show identification to be admitted. The club had a dance floor, a discjockey,

1 Report ofProceedings (RP) (Dec. 12, 2013) at 471. 2RP(Dec. 12, 2013) at 468. 3RP(Dec. 11, 2013) at 359. '2No. 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 clubcalled the "Global Grinders."4 Headmits 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. 

### Earlyin 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. Amongthose present were Randall's 

### teenage son, Ricky Washington, and histwo friends—Gino Horsley and Shirley. At some pointthatmorning, a shooting brokeout. Chaos eruptedinside the club. While the sequence of events is unclear, witnesses reported hearing two 

### rounds ofgunshots. Afterthe second round ofgunshots, Randall discovered that 

### Shirley had been shot. Despite herefforts 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 againstWelch 

### 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 thiswrongful death lawsuitto determine liability byWelch and other parties. The bankruptcy court's order stated that "no money judgment shall be entered 

### personally against Richard and JenniferWelch" but that creditors were permitted to seek compensationfrom the Welches' insurance policies.5 

### Following these bankruptcy courtproceedings, Lomis moved inthe superior court to exclude Welch as a party for the purpose of establishingjoint and several 

### liability. He argued thatWelch should bedismissed because he wasimmunefrom liability and had no insurance. Hayes argued thatjudgment against Welch was 

### proper and that thecollectability ofthejudgmentwas an issuefor thebankruptcy 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 thatcomparative fault was inapplicable in the context of an intentional tort, thatthere was no evidence that Shirleywas negligent, 

### and that Shirley acted reasonably in an emergency situation. The trial court granted this motion and struck the defense. 

### Thecase proceeded to ajurytrial againstLomis andWelch onboth liability 

### anddamages. Hayes argued thatLomis was liable because hefailed tomake the 

### building safe and bring it up tocode. Shepresented testimony from Lloyd Swick,

5Clerk'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 ofthe shooting; and from Mark Lawless, a general contractor. Atthe close ofHayes's case, Lomis moved for a directed verdict. He argued that itwas purely speculative whetherthe building's deficiencies were a proximate
cause of Shirley's death. The trial court denied this motion. Atthe close of Lomis's case, Lomis moved to amend his answerto conform it to the evidence presented at trial. Specifically, he sought to include the affirmative defense ofcomparative 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 itbased on failure of proof. Atthe end ofthe trial,the court addressedjuryinstructions. Lomis proposed 

### threejury instructions relatedtoShirley's alleged status as atrespasser. The court 

### declined to give the three instructions, reasoning that there was noevidence that Shirley was a trespasser on the day he was killed. 

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

### percentliable andWelch 60 percentliable. Thejury awarded $70,000 to Shirley's estate, $250,000 to Hayes, and $70,000 to Shirley's father. 

### Following the verdict, Hayesreturned to thebankruptcy courtand moved to amend the prior bankruptcy order to allowjudgmentto be entered againstWelch. The bankruptcy court granted Hayes's motion and modified itsprior order to allow 

### entryofajudgment againstWelch. The order stated that Hayescould 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 orNo. 73968-9-1 / 6 indemnity" fromWelch.7 Thereafter, Hayes moved in the superior court for an entry ofjudgment consistentwiththejury verdict and the amended bankruptcy order. Lomisopposed entry of the judgment. He asked the court to enter judgment that he was only severally liable for 40 percent ofthe 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 byLomis


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

### judgment as a matter oflaw ormove for a new trial. She is incorrect. No such posttrial motion is required. Washburn v. City ofFederal Way, 178 Wn.2d 732, 749-52, 310 P.3d 1275 (2013). Lomishas 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 thatwe 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)). "Toestablish cause in fact, a claimant must establish that the harm suffered would not have occurred butfor 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 thatlinkthe actions of the defendant and the injury to the plaintiff." Joyce. 155 Wn.2d at 322. 

### "Ordinarily, cause in fact is a question forthejury. Butthe courtmaydecide this question as a matter oflaw 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. ofMetro. 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 ofWash., 17 Wn.2d 631, 643, 136 P.2d 720 (1943)). We review a motion for a directed verdict de novo. Ramev v. Knorr. 130No. 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.3d728 (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 mostfavorable 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 ofthe building was out ofcompliance with theTacoma Municipal Code, due to thefact 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 theability ofpeople to egress. Additionally, thebuilding did not have a sufficient numberofexits. Lawless also testified aboutthe circumstances surrounding Shirley's death. 

### Shirley's body was found in the threshold of a door that was open. Lawless's testimonyabouttheevents onthemorning oftheshootingwasbased on his review

8No. 73968-9-1 / 9 of various depositions and declarations, including those from Shirley's friends— Washington and Horsley. Lawless testified thatWashington had trouble exiting the building after shots
were fired. According to Washington, itwas very hard to open one ofthe doors. In addition, the walls and passageways inside the building were confusing. Atone point, Washington found himself inside of a closet instead of going out the door. Washington and Horsley ultimatelyjumped 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 ifthe stairway had been accessible and properly maintained, there would have been a means of escape on the side ofthe building from where Washington and Horsleyjumped. 

### According to Lawless, Washington said that he could have gotten out safely ifthere 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 includedShirley. 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 Horsleyexperienced inexiting the building, it is a reasonable inference that Shirley had similartroubles. While the evidence in 

### thiscase gives rise tocompeting inferences, we mustviewthe evidencein 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 itto thejury. He asserts that we should remand for a newtrial. 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)). Atrial court's discretionaryruling is unreasonable or 

### based on untenable grounds when it is based on an error oflaw. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp.. 122 Wn.2d 299, 339, 858

10No. 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 comparativefault 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 

### notincluded in the statutorydefinition of"fault" in the contributory and comparative fault statutes, and thus, they are "'inappositeto the determination offault pursuant 

### toRCW4.22.070(1).'" Morgan v. Johnson. 137Wn.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 negligenttortfeasors arenotentitledtoapportion 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 Shirleybased on 

### Shirley's own negligence. This was proper. Comparative fault was notprecluded, and the trial court erred when itconcluded otherwise. Accordingly, the trial court

11RP(Dec. 6, 2013) at 21. 11No. 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 thejury. This rulingwas 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 plaintiffhad 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 ofcontributory 

### negligence is ajuryquestion unless the evidence is such thatall 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 lightmost favorable to the challengingparty." 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

12No. 73968-9-1/13 property. Italso established that on the morning ofthe shooting, Shirley and his friends were involved in a fight inside ofthe club. Inaddition, Randall testified that she believed she saw Shirley outside the building after the first round ofgunshots, 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 nonegligence ofhis or herown andwho is compelled to decideinstantly howto avoid injury andwho makes such a choice as a reasonablycareful person placedin such a position might make, is notnegligent


### even though it is not the wisestchoice." Humes v. Fritz Cos.. Inc.. 125Wn. App. 477, 494, 105 P.3d 1000 (2005). "An instruction on this doctrine is appropriate 

### onlywhen there arefacts presentedfrom which thetrieroffact could concludethat the emergency arose through nofault 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 

### properto instructthejury on theemergency doctrine. Kappelman, 141 Wn. App.

13No. 73968-9-1 /14
at 589. But these authorities do not indicate that it is proper to preclude the defense ofcomparative 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 andjustice does not require resubmission ofthe entire case to thejury." 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 retrialtocertain issues is improper." Mina. 104Wn.2d at707. The possibility of a compromise verdict has been "largely eliminated" by the adoption ofcomparative negligence and the use ofspecial verdict forms. Mina,
104Wn.2dat707. 

### In Mina. the SupremeCourt determined thatreversal on a liability issuedid notrequire 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, thespecial verdictform contained separate questions relating toliability and damages, and neither party has argued that the amount of damages was

14No. 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 offailure to submit question ofcontributory negligencetojury, issue ofprimary negligence should also be retried where it is factual issue, since negligence and contributory negligence 

### should be passed onby samejury."13 Here, there is no dispute that the issue of primary negligence should also beretried. Thus, we need notaddress these cases any further. CONCLUSION 

### Thetrial courterred bynotallowing thejuryto consider the issue ofShirley's 

### comparative negligence. Anew trial iswarranted. Thenewtrial shall belimited to the issue of liability. 

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

### argument that thetrial court erred when it did not givejury 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. 15No. 73968-9-1 /16 that the trial court erred when itentered 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 thejury's allocation of fault. We reverse and remand for further proceedings consistentwith this opinion.


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WE CONCUR:



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