Ducking Responsibility

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Saturday was the one year anniversary of Ride the Ducks Crash on the Aurora Bridge.  As you may know our firm represents 20 of the victims.

Last Friday, the owner of Ride the Ducks Seattle (RTDS) went on a media campaign proclaiming at every opportunity that he wants a “global mediation” where everyone can be treated fairly and the cases can be resolved.  This is an effective way for RTDS to convey in a single message to the media and the public that it cares about the victims and is taking responsibility.

But how genuine is it?

Ride the Ducks did propose global mediation involving five defendants and 60 or more plaintiffs, plus dozens more attorneys.  They did so by group email.  Not a proposed stipulation, not with prior agreement by other defendants, not an actual plan, just a group email.  Like how you might throw out an idea for a theme party.

For point of reference, things Ride the Ducks felt warranted actual letterhead or pleading paper have included (1) leveling personal attacks at/scolding Karen for posting a picture of the “Duck Nest” on social media, which RTDS has now broadcast on local news networks, (2) demanding everything we have compiled during our investigation in preparation for the litigation, and (3) scheduling meetings about the case schedule.

For further point of reference, the parties spent hours filing cross motions about when the trial date should be, with the defendants wanting to push it out to June 2019.  But this proposed early global mediation, where everyone will be treated so fairly, warrants a group email.

How else is Ride the Ducks taking responsibility and furthering its desire to globally mediate?  The company:

  1. Spent the week of the anniversary hounding us over our objection to producing the fruits of our investigation, and then, ignoring that we twice asked why the issue needed to be debated that week, unilaterally scheduled a discovery conference on Friday right before the memorial service for the Ride the Ducks victims at North Seattle College.  We were scheduled to attend to be supportive of our clients, because that’s what we do.  Context reminder: trial is two years from now.
  2. Hasn’t bothered to collect medical records to see all of the harm the crash caused (an obvious prerequisite for mediation), and yet…
  3. Thought it was important to demand the STD history of the victims in discovery.

 

What else is Ride the Ducks doing to take responsibility?  Blaming lawyers, naturally.

Brian Tracey (owner) stated to Q13: “Most aggressive attorneys will get to trial first and get the lion’s share of the money. I don’t want it to happen, I want everybody to be treated fairly.”

Here’s what is actually going on.  Many of the cases filed early after the crash had trial dates as early as November 2016 (two months from now).  All of the cases have since been set on the same modified case schedule with a trial date in September 2018.  Judges handling the cases have requested that all parties file lawsuits in time for their cases to be tried beginning September 2018.  You can decide for yourself if Mr. Tracey’s statement is (a) accurate or (b) a clever way to abscond with the moral high ground and blame lawyers for the lack of a resolution.

This is not the first time Mr. Tracey has gone out of his way to blame lawyers for his company’s bad PR.  He  blamed Karen and other plaintiffs’ lawyers for a “campaign to discredit RTDS’ safety worthiness.”  This is a company which, in addition to the horrific crash that killed five people, admitted to 463 safety violations.  A company with only half of its fleet allowed to conduct tours.  A company which, the lawsuits allege, declined to implement critical, manufacturer-recommended safety fixes “to avoid axle fractures” (what the preliminary NTSB report concluded had happened) that were supposed to be completed “prior to operating 2014.”  Somehow trial lawyers and their photographs of Duck vehicles are to blame for bad PR.

You can always keep blaming us lawyers if you want to duck responsibility.  We can take it. But don’t try to fix your PR problem by giving victims an illusory hope of closure for an extremely traumatic and life-changing event.  On the anniversary no less.  They’re suffering enough.

Here’s an article about the victims, which is what the anniversary should be about.

 

 

Pocket amp to keep the peace

Do you know how often sleeping kids love hearing electric guitar?  Pretty much never.  I used to have a headphone amp device that made for so-so sound and looked like a walkman on steroids and probably cost $150.  Who knew you could get nearly full amp sound with effects in the size of a pack of gum and for the cost of cheap toaster?  Now nobody has to hear how rusty I am.

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Crown molding… my nemesis

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I have a years-long habit of buying the tools I need only after I discover I need them the hard way.  This means that my first try at almost anything is a disaster.  When the guys at Home Depot start chuckling when you come back in for the fourth time in a weekend, it’s time to buy better tools.

A couple years ago, because I did fine with baseboards, I thought crown molding would be cake.  I spent most of the afternoon banging my head against the wall, and then the other wall, and then the other wall…

This time I had a proper miter saw and a crown molding jig, which is a must-have to get the angles and cuts right consistently.  This weekend I conquered crown molding, my nemesis, in about an hour, with no head wounds, and lots of excuses to use the nail gun.

Tenant Deposits Protected from Bogus “Out of My Control” Delays

An appellate decision just came down from Division 3 further protecting tenant security deposits.  In Goodeill v. Madison Real Estate, the court addresses the burden on landlords to prove an exception to the 14-day deposit rule.

Briefly, RCW 59.18.280 requires landlords, within 14 days of termination of the rental agreement and move-out, to return the security deposit, less any deductions described in a “full and specific statement of the basis for retaining any of the deposit.”  The same statute offers landlords an escape: “The landlord is also barred in any action brought by the tenant to recover the deposit from asserting any claim or raising any defense for retaining any of the deposit unless the landlord shows that circumstances beyond the landlord’s control prevented the landlord from providing the statement within the fourteen days.”

In Goodeill, the court elaborated on the burden to prove such circumstances: “We hold that a landlord may not avail itself of RCW 59.18.280′ s exception unless it accounts for any active or passive delays sufficient to show that it made a conscientious attempt to comply with the 14 day statutory notice.”  The facts of the case are too detailed to summarize here, but the story is typical.  The landlord interpreted the statute to mean that only an estimate is due within 14 days, and that because repair work was necessary by two or more service providers, it was categorically not feasible to comply with RCW 59.18.280’s 14-day requirement.  As a result, the plaintiff/tenant did not receive her “full and specific statement” until 43 days after move-out.   At small claims court, the landlord argued that other small claims court judges had generally agreed, but had no appellate law supporting that position.

In reaching its decision, the Goodeill court reasoned that the defendant/landlord failed to act with reasonable diligence in scheduling repairs and obtaining cost invoices well before the 14-day period expired.  The length of the delay seems particularly offensive to the court: “[The landlord’s] evidence falls woefully short of showing that circumstances beyond its control prevented it from timely providing Ms. Goodeill the statutory notice.”  The plaintiff/tenant was entitled to her full deposit back, regardless of whether or not the repairs were justified.

This is a cautionary tale for landlords that just because you need to hire professional cleaners or repair contractors doesn’t mean you can automatically justify significant delays past the 14-day deadline.

Social Media Discovery in Civil Litigation

Probably for generational reasons, I have written and spoken at CLEs quite a bit about discovery of social media in civil litigation, in particular personal injury litigation.  At the extremes, defense lawyers want an entire Facebook account, and plaintiff’s lawyers want a privilege that doesn’t even exist for personal diaries.

There is no case law on this in Washington, probably because so few discovery issues ever reach the appellate level.  Below is a list of cases and some analysis regarding the proper scope of social media discovery taken from a WSBA seminar I wrote for and spoke at.  The short version is this.  Facebook can no longer be considered a “social networking” tool.  It is a member-controlled posting environment, like a listserv only more restrictive, an email account, and an instant messenger/texting account, all in one.  It is no more appropriate to demand an entire Facebook account than it is to demand an entire Gmail account.  Conversely, it makes no more sense to deem all of Facebook off limits than it would to declare written communications about a legal claim categorically irrelevant.

The middle ground is to treat social media the same as we treat any pile of documents.  One party can request that the other party go through the documents and produce those relevant or related to x, y, and z.  Thus, although it is easy to get lost in the technical details of social media and national case law, there is no reason to stray too far from CR 26 and the common law interpreting it.  Social media materials should be treated the same as any other data or documents.

Nevertheless, the below materials may help better explain the considerations and analysis specific to social media.

Scope of Discoverable Social Media: What Is “Reasonably Calculated” Based on the Type of Case?

Civil Rule 26(b)(1) provides, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action… .”  Though the rule is much broader than the tests applied to admissibility at trial, discovery methods must be “reasonably calculated to lead to the discovery of admissible evidence.”

The few Washington appeals cases to address the application of the CR 26 standard suggest that a party seeking discovery should be able to demonstrate (1) a cognizable goal for the discovery—what the party hopes to obtain, (2) that the material sought is probative of an issue in controversy—why the party is entitled to it, and (3) that the method used is reasonably commensurate with that purpose—how the party obtains the information. See, e.g., City of Lakewood v. Koenig, 160 Wn. App. 883, 250 P.3d 113 (Div. 2 2011); Morgan v. PeaceHealth, Inc., 101 Wn. App. 750, 14 P.3d 773 (Div. 1 2000).  Thus, a party should narrow the request to avoid inclusion of information and documents that are not likely to lead to the discovery of admissible evidence.

With social media discovery, this task can sometimes prove pragmatically difficult and highly debatable.  Because Washington cases offer little insight into this specific issue, below is a summary of how courts across the country have addressed discovery of social media in various contexts.

Case Law from Other Jurisdictions Related to Social Media Discovery

Holland v. Barfield, 35 So.3d 953 (Fla. 2010).  The trial court ordered a defendant in a wrongful death action to produce her entire computer hard drive and cell phone.  The plaintiff sought evidence of communication amongst the defendants through Facebook and Myspace.  Emphasizing that the request sought the electronic media themselves, rather than the information contained therein, the court of appeals holds that such unlimited breadth is not appropriate.  It allows the other party complete access to loads of unrelated information without any deference to privileges or rights of privacy.  Id. at 956. Holland also notes that there was no evidence of any destruction or thwarting of discovery by the plaintiff, and thus, no need for such a broad scope. See id. at 955-56.

Mackelprang v. Fidelity National Title Agency of Nevada, 2007 WL 119149, 99 Fair Empl.Prac.Cas. (BNA) 997 (D. Nev. 2007).  The plaintiff sued for sexual harassment in the workplace and ensuing emotional distress.  The defendant sought private messages on her Myspace account, believed to be evidence of her sexual promiscuity and admissions about the subject matter of the litigation.  This casts too wide a net, the court holds, because it allows the defendant access to a great deal of other intensely private information not related to the lawsuit.  Any little detail communicated by a plaintiff could “in some theoretical sense be reflective of her emotional state,” but that is not justification for the breadth of the inquiry.

Barnes v. Cus Nashville, LLC, 2010 WL 2265668 (M.D. Tenn. 2010) (creating a Facebook account for the court and allowing the judge to “friend” the litigants).

Bass v. Miss Porter’s School, 2009 WL 3724968, 1-2 (D.Conn. 2009).  The court emphasizes that relevance is in the eye of the beholder, and the plaintiff offered no guidance as to how she determined which documents to produce.  Concluding that there was a large discrepancy in potentially relevant material between what was produced and the 750 total pages of documents, the court hands over the complete copy of all Facebook documents.

McMillen v. Hummingbird 12 Speedway, Inc., 2010 WL 4403285 (Pa.Com.Pl. Sept. 9, 2010).  The plaintiff in a personal injury case belonged to Facebook and MySpace, and had posted information on those sites about trips he had taken.  Defendant asked for login information to his social media sites.  Plaintiff argued that social media communications were confidential, which implied a new privileged under Pennsylvania law.  The court rejects that argument and declines to find a new privilege, emphasizing that social media tools are used to network and meet new people.  Even if social media users communicate on private matters, the nature of the sites dispels an expectation of confidentiality.  The court cites Facebook and MySpace policy allowing disclosure of information in certain circumstances to support the position that there is no reasonable expectation of privacy.  (Note that Facebook’s posted policy on divulging content, as well as privacy settings, have changed in many ways since this case.)

Romano v. Steelcase, Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650, 653 (2010).  The facts here are nearly identical to McMillen.  Plaintiff claimed permanent injury, putting loss of enjoyment of life at issue.  The public portions of her social media pages revealed traveling, an “active lifestyle.”  Plaintiff refused to answer questions about social media at her deposition.  Defendant then sought “full access to and copies” of all Facebook and MySpace records.  The court holds the material discoverable, noting that social media sites are about sharing information.  The court observes as follows:

Thus, it is reasonable to infer from the limited postings on plaintiff’s public Facebook and MySpace profile pages that her private pages may contain material and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny defendant an opportunity to access these sites not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.

Addressing Plaintiff’s raised Fourth Amendment privacy concerns, the court finds no reasonable expectation of privacy.

E.E.O.C. v. Simply Storage Mgmt., 270 F.R.D. 430, 436-37 (S.D. Ill. 2010).  EEOC sued on behalf of employees for sexual discrimination, which included an emotional distress claim.  The court endeavors to delineate the “broad limits—but limits nevertheless—on the discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do so in a way that provides meaningful direction to the parties.” Id. at 434.  The court holds as follows:

            (1)        Privacy settings and the user’s expectations of privacy are not a basis to completely shield discovery, but may be relevant to a protective order in determining whether a request is burdensome or oppressive or otherwise improper. Id.

            (2)        The contours of social media communications relevant to emotional distress are difficult to define, but “that does not mean that everything must be disclosed.”  With no finding that the plaintiff’s responses to tailored requests were deficient, complete disclosure of site material is not necessary. Id.

            (3)        The scope of allowable discovery is broader than communications related directly to the issues raised in Plaintiff’s complaint.  A wider net may retrieve communications related to injury or credibility, which is discoverable. Id. at 435-36.

            (4)        “With these considerations in mind, the court determines that the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications … that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.” Id. at 436.  This rule applies to third-party communications with the plaintiffs, as well as photographs and videos posted by the plaintiffs.  Photos and videos where the plaintiffs are merely tagged are less likely to be relevant.

Patterson v. Turner Constr. Co., 88 A.3d 617, 931 N.Y.S.2d 311 (2011).  Patterson sued for personal injuries and the defendant moved to compel production of all of Patterson’s Facebook records after the subject incident.  The trial court reviewed the social media materials in camera and determined that at least some of the discovery “will result in the disclosure of relevant evidence,” but that it is possible that not all Facebook communications are related to issues in the lawsuit.  The appeals court reversed and remanded for more specific identification of Patterson’s relevant Facebook information, specifically that which may contradict allegations of injury.  However, the court also reasons that Patterson’s Facebook materials are not shielded from discovery merely by use of privacy settings, just as a written personal diary may be discoverable.

Held v. Ferrellgas, 14 Inc., 2011 WL 3 896513, * 1 (D. Kan. Aug. 31, 20 11).  In an employment discrimination case, the defendant sought the plaintiff’s Facebook data.  The court found such material relevant to the case.  Further, the court endorsed both the time-scope and manner of discovery, which requested only data during the plaintiff’s employment, and allowed the plaintiff to download and produce the data himself rather than provide direct access.

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388-89 (E.D. Mich. 2012).

Tompkins is a slip and fall case where defendant requested releases to obtain social media site information.  The court holds as follows:

I agree that material posted on a “private” Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.  Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Id. at 388.  The court distinguishes McMillen and Romano, noting that the alleged threshold evidence for the relevance of the inquiry, a picture of the plaintiff holding her dog, was not inconsistent with the plaintiff’s allegations.  The court concludes, “based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.” Id. at 389.  Further, the court finds, a request for the entire account was overly broad.

Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176 (E.D.N.Y. 2012).  In a sexual harassment lawsuit, the court found social media materials largely relevant, with minimal reasonable expectations of privacy.  The court’s reasoning and citations are quoted below.

Although the law regarding the scope of discovery of electronically stored information (“ESI”) is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable. Courts have found, particularly in cases involving claims of personal injuries, that social media information may reflect a “plaintiff’s emotional or mental state, her physical condition, activity level, employment, this litigation, and the injuries and damages claimed.” See, e.g., Sourdiff v. Texas Roadhouse Holdings, LLC, 2011 WL 7560647, at *1 (N.D.N.Y. 2011). For example, where a plaintiff puts her emotional well-being at issue when asserting claims of sexual harassment or discrimination as in this action, some courts have found that “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting.” Bass v. Miss Porter’s School, 2009 WL 3724968, at *1 (D. Conn. 2009); see also Glazer v. Fireman’s Fund Ins. Co., 2012 WL 1197167, at *1, *3 (S.D.N.Y. 2012) (in employment discrimination case, plaintiff’s chats with online psychic revealed her “work performance, relationships with co-workers, views regarding her treatment . . . emotional state before, during, and after her employment, efforts to mitigate damages”).

On the other hand, as other courts have observed, the “relevance of the content of Plaintiff’s Facebook usage . . . is more in the eye of the beholder than subject to strict legal demarcations.” Bass 2009 WL 3724968, at *1. Whether electronically stored and dissimated [sic] on the Internet or not, “anything that a person says or does might in some theoretical sense be reflective of her emotional state.” Rozell v. Ross-Holst, 2006 WL 163143, at *3 (S.D.N.Y. 2006).

The court examined the plaintiff’s social media materials and determined that both the public and private materials contained probative evidence of her mental state and participation in activities, which were relevant to her damages claim.  Citing New York precedent allowing discovery of diaries containing contemporaneous mental states and impressions of the parties, the court draws no material distinction between such diaries and Facebook privacy settings.  Further, the plaintiff had no “justifiable expectation that her [Facebook] friends would keep her profile private” (internal quotations omitted), and the wider the circle of friends, the more likely it is that posts would be viewed by someone the Facebook user does not foresee.  Electronic communications in general may come with a lower expectation of privacy.

Nevertheless, the court declines to order production of all Facebook materials because “not all postings will be relevant to her claims.”  The court applies a standard that the plaintiff must disclose social media communications and photographs “that reveal, refer, or relate to any emotion, feeling, or mental state, and that reveal, refer, or relate to events that could reasonably [be] expected to produce a significant emotion, feeling or mental state” (internal quotations omitted).  In its order, the court limits the time-scope of production and addresses application to each Facebook function (e.g. tagging, photographs, etc.).

McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 910 N.Y.S.2d 614 (N.Y. App.Div. 2010) (finding that defendant “failed to establish a factual predicate with respect to the relevancy of the evidence,” and that “defendant essentially sought permission to conduct ‘a fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence”).

Methods of Discovery: Production of Social Media Content vs. Methods of Direct Access

In the early stages of discovery battles over social media, some courts required that litigants provide direct access (login and password) for their social media accounts.  These decisions appear to result from a litigant asserting a privilege that did not exist, a poor understanding of how social media platforms are used, or a limited and discoverable use of social media. See Romano, Mackelprang, and Bass, supra.  Direct access to Facebook, for example, may include some posts to friends, but may also include hundreds of private messages, like emails, which may have no bearing on the litigant’s claims and instead may be very private in nature to the other parties to the messages.  The other cases listed above, and most all of the more recent decisions, recognize that social media and its various functions also serve various purposes for each individual.  Accordingly, most courts not only decline requests for direct access, but will also narrow the production based on an applied standard or determine firsthand which materials are discoverable.

Other than site inspections, it is very rare in discovery that a party is allowed direct access to records that are not by nature entirely at issue in the case (e.g. medical records in a personal injury case, an issue governed by statute), particularly when the privacy of non-litigants is involved.  For example, in an employment discharge case, demanding all social media records from the employee-plaintiff may be similarly unfair and invasive as the employee demanding all emails from the employer, regardless of the participants or subject.  Both could be described not just as a “fishing expedition,” but a “net fishing expedition,” scraping up everything on the sea floor.

To cast a wide net, litigants must have a compelling justification.  As the above cases illustrate, a wide net may be justified if a party selects which materials to produce without identifying any basis for the selection, or if a party conceals discoverable materials or otherwise commits misconduct that puts good faith responses in question.

WA Supreme Court Affirms No Emotional Distress Damages for Tenant Relocation

In a previous post I addressed the limitations on tenants’ legal remedies against landlords.  Today the Washington Supreme Court unanimously found that “actual damages” under RCW 59.18.085 does not include emotional distress damages in connection with tenant relocation from a condemned dwelling.  The Court’s decision is based on its interpretation of the legislative intent of the Residential Landlord Tenant Act (“RLTA”).  In very general terms, the Court reasons that the RLTA expressly prescribes detailed remedies for relocation from a condemned dwelling, such as relocation expenses and deposit, and that where emotional distress damages are not one of the prescribed remedies, they should not be read into the statute.

 

The Supreme Court’s reasoning confirms again that while the RLTA is generally very favorable to tenants as consumers, it typically does not form the basis for non-economic damages.  For the lawyer audience, however, just because the RLTA does not create a cause of action itself does not mean violation of a provision by a landlord will not constitute evidence of negligence or potentially negligence per se under RCW 5.40.050, as supporting a common law cause of action.

Many Mumbling Mice…

If you’re familiar with the alliterative ABC Dr. Seuss book, you know what the title of this post refers to.  Unfortunately, the mice at issue were not making midnight music in the moonlight, but in our attic.  The pest control guy said they had accessed the attic from tree branches touching our house.

Previously, Courtney had forbidden me from going up on the roof after she caught me pressure washing the chimney in flip flops (it was hot that day).  However, with proper footwear and critters scurrying about in our attic, the widow-benefit analysis was much more favorable this time.  So I got to go up on the roof with my pole saw.  If only cleaning up the branches were as fun.

Alphabet Soup: A Primer on Auto Insurance Acronyms and Terms

If you are confused about what auto insurance benefits are and what you might need, you are not alone.  Many law students and lawyers do not understand the types of insurance available.  Here are the basics on the types of insurance, how they apply, and why you should consider buying the coverage.

PIP Coverage:

What:  PIP stands for Personal Injury Protection.  It covers medical expenses and a small amount of lost wages if you are out of work for more than two weeks.  Benefit limits range from $10,000 to $35,000.

How: PIP is also called “no fault” coverage because it applies regardless of whether or not you were at fault.  For example, it does not matter if you were rear-ended or run yourself into a tree–PIP applies.  If you are struck by a vehicle while walking or riding your bike, the other driver’s PIP, as well as yours, will apply in most instances.  If you are a passenger in a vehicle involved in an accident, the driver’s PIP should apply to you.

Why: Even if you have good health insurance, PIP offers additional benefits.  First, there is no coinsurance or copay for treatment.  Second, there is no annual insurance deductible, so for example, you do not need to incur $2,500 in covered medical charges for benefits to kick in.  Third, PIP covers treatment many health plans exclude or limit, such as chiropractic care and massage therapy.

Liability:

What:  Liability insurance is mandated by Washington law.  The minimum requirement is $25,000.

How:  Liability insurance pays when a driver’s negligence injures another person.

Why:  Because it’s the law.

UIM Coverage:

What:  UIM stands for Underinsured Motorist.  Benefit limits typically range from $100,000 to $500,000, though some policies exceed $1,000,000.

How:  UIM coverage applies if the at-fault driver has no insurance, which is unlawful in Washington, flees the scene (also unlawful), or lacks sufficient insurance to pay the full value of the claim.  There are several major distinctions between UIM and PIP.  First, UIM is not “no fault” coverage.  Your UIM insurer “stands in the shoes” of the at-fault driver, and you are only entitled to recover damages under a UIM policy that you would have been entitled to receive from the at-fault driver if he had sufficient liability insurance.  Second, UIM does not just cover medical bills and wage loss (what we call economic damages), but also pain and suffering, emotional distress, and loss of enjoyment of life (what we call noneconomic damages).  Third, a UIM insurer is entitled to defend the merits of the claim.  For example, if liability is disputed, or if the insurer disagrees about the value of general damages, they can force you to sue or arbitrate to determine the amount of damages.

Why:  Remember that not all drivers have or can afford more than the $25,000 minimum liability insurance, which barely covers the average whiplash injury claim.  If you are seriously injured by such a driver and have no UIM coverage, not only will you not recover the general damages you are entitled to, you may not recuperate the cost of coinsurance and copays.

Other Types of Insurance:

Comprehensive:  This typically refers to coverage for property damage to your vehicle or another vehicle involved in an accident.

GAP Insurance:  Cars depreciate in value rapidly in the first few years.  If you purchase a car new and do not put much money down, and the car is subsequently totaled early in its car-life, you may owe the lender more than the “actual cash value” or “replacement cost” payable under your auto insurance policy.  GAP insurance covers that remainder.

Why Criminal Assailants Are Not At “Fault” in a Business Premises Case

One of the most commonly misunderstood areas of tort law, including within the legal community,  is the issue of the fault of the assailant.  When a plaintiff files a lawsuit alleging that the business failed to use reasonable care to protect a customer from foreseeable criminal conduct, at the surface level it seems logical that the criminal should share blame.  But that is not the case.

To start, Washington’s Legislature defines “fault” in RCW 4.22.015 as, in relevant part, “acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others.”  There is, for lack of a better phrase coming to mind, a range of egregiousness in tort law, which starts with ordinary negligence, then goes to gross negligence, then recklessness, and then intentional acts.  Washington’s comparative fault statute excludes intentional acts from the definition of “fault.”

But, how can the person most at fault, in a moral sense, not be at fault in the legal sense?  To understand why, we first need to examine why the business has a duty to protect patrons in the first place.

In Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 195, 943 P.2d 286 (1997), Plaintiff Nivens parked his car and began entering a 7-11 in Tacoma, Washington.   Before he could enter, a group of loitering youths asked him if he would buy them beer.  Nivens refused.  As he attempted to enter the store, the youths grabbed him from behind and assaulted him.

The Supreme Court acknowledged that it was confronted squarely with a major issue, and proceeded to resolve that issue:

We must decide if a business owes a duty to its invitees to protect them from criminal acts by third persons on the business premises.  Because a business has a special relationship with them, it has a duty to take reasonable steps to protect invitees from imminent criminal harm or reasonably foreseeable criminal conduct by third persons.

Id. at 194.  Nivens reasons, “As with physical hazards on the premises, the invitee entrusts himself or herself to the control of the business owner over the premises and to the conduct of others on the premises.”  Id.  Further, “We discern no reason not to extend the duty of business owners to invitees to keep their premises reasonably free of physically dangerous conditions in situations in which business invitees may be harmed by third persons.”  Id. at 202-203.

As to the scope of the duty owed, Nivens expressly adopts the Restatement (Second) of Torts § 344 (1965):

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a)        discover that such acts are being done or are likely to be done, or

(b)       give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Id. at 203-204.  The court recites the Comment for fuller clarification:

A public utility or other possessor of land who holds it open to the public for entry for his business purposes is not an insurer of the safety of such visitors against the acts of third persons, or the acts of animals. He is, however, under a duty to exercise reasonable care to give them protection. In many cases a warning is sufficient care if the possessor reasonably believes that it will be enough to enable the visitor to avoid the harm, or protect himself against it. There are, however, many situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons, or animals, may conduct themselves in a manner which will endanger the safety of the visitor…. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Id. at 204-205 (emphasis added, original emphasis omitted).  The Nivens court concludes, “we hold a business owes a duty to its invitees to protect them from imminent criminal harm and reasonably foreseeable criminal conduct by third persons. The business owner must take reasonable steps to prevent such harm in order to satisfy the duty.”  Id. at 205.

In short, a business has a special relationship with its customers because it attracts customers and benefits financially from their presence.  It is only fair then, that if the business owner knows the business also attracts violent people, or there is otherwise a foreseeable risk of violence, he or she ought to take reasonable steps to prevent harm to the customers.

To put it another way, the law does not allow businesses to simply say, “criminals will be criminals.”  Rather, when a business invites the customer into a foreseeable risk, the business has a responsibility to use reasonable care to prevent assault injuries.

In likening criminal assault to physical hazards on the premises, which is also a cause for premises liability, Washington’s Supreme Court essentially characterizes the criminal wrongdoer as a mechanism of injury in the negligence case against the business, rather than an at-fault party.

For that reason, any question as to the conduct of the assailant goes to causation, not fault.  Did the business’s negligence allow (cause) the assault to occur, or would it have occurred anyway?

This issue was thoroughly examined and spelled out in Rollins v. King County Metro Transit, 148 Wn. App. 370, 199 P.3d 499 (Div. 1 2009).  In Rollins, a bus passenger attacked by a number of assailants brought an action against the County for negligence in allowing the assault.  The plaintiff did not name the tortfeasors as defendants.  Id. at 374-76.

The court reported, “Metro proposed a jury instruction stating the plaintiffs must prove ‘the percentage of damages caused by negligent conduct and the percentage of damages caused by the assailants’ intentional conduct.”  Metro requested a special verdict form requiring the jury to calculate such percentages pursuant to Tegman v. Accident & Medical Investigations, Inc., 150 Wn.2d 102, 75 P.3d 497 (2003).  Id. at 376.  Metro was wrong.

Rollins explains, “Tegman is about joint and several liability.  Here, Metro is the only defendant and negligence is the plaintiffs’ only theory. To recover at all, plaintiffs had to prove their injuries were proximately caused by Metro’s negligence.”  Id. at 379.  Thus, liability is about the overlap between the negligence and the intentional conduct allowed by Defendants.

Rollins elaborates on the overlap between negligence and intentional harms:

The jury here was instructed that plaintiffs had to prove that Metro was negligent, that Metro’s negligence was a proximate cause of plaintiffs’ injury, that there may be more than one proximate cause of an injury, and that its verdict should be for Metro if it found the sole proximate cause of injury was a cause other than Metro’s negligence.

Id. at 379.  The court declines to approve an instruction as to the percentage of damages caused by the defendant’s negligence and the percentage of damages caused by the intentional tortfeasor’s negligence because there is no segregation burden, especially where the intentional tortfeasor is not a party.  Id. at 382.

The key  in any case involving intentional harm is that there may be more than one proximate cause for an injury.  That does not prevent an individual defendant from being 100% responsible if, for instance, the fact-finder determines that but for its failure to screen for weapons, the plaintiff would not have been shot. As WPI 15.04 states:

There may be more than one proximate cause of the same injury or event.  If you find that the defendant was negligent and that such negligence was a proximate cause of injury or damage to the plaintiff, it is not a defense that the act of some other person who is not a party to this lawsuit may also have been a proximate cause.

In a successful claim for premises liability for criminal assault, both the business’s negligence and the assailant’s intentional acts caused the injuries.  Causation is not apportioned–only fault is.  Thus, there is no apportionment of anything to the assailant in a claim against a business for the negligent failure to protect customers.

Tenant Rights in Washington

Tenants in disputes with landlords are one of the most underserved populations in need of legal services.  Landlords can afford to hire attorneys and attorneys are attracted to repeat clients.  Tenants, on the other hand, are far less likely to need legal services again, and their claims are typically not large enough to entice lawyer involvement.

I have written about tenant rights, spoken to the media about claims against landlords, investigated suspicious fires that displaced tenants and destroyed their belongings, and discussed disputes with more than one hundred tenants throughout Western Washington.  One point of confusion many tenants have is what relief they are entitled to (and is practically obtainable), and what they are not.  It is impossible to address here every scenario, and the following is not intended to be legal advice, but rather, general principles often applicable to common landlord-tenant disputes.  Nothing here should take the place of or be considered as actual legal advice applicable to your case and situation.

Remedies Available to Tenants

  1. Generally, if a landlord violates his or her duties under the Residential Landlord Tenant Act (RLTA), the most common relief available is for a tenant to move out before termination of the lease agreement.  There are too many caveats and prerequisites to list here, but the points below elaborate on why moving out is the primary and most practical relief available.
  2. Even though it seems more practical than moving somewhere else, a tenant cannot always force a landlord to bring a rental up to par with your expectations under the lease, or even up to code.  Sometimes landlords cannot afford it.  Sometimes landlords do not care to rent the unit out.  This does not mean, however, that the landlord can go rent the same unit, not up to code, to another tenant.  There are significant penalties for landlords who rent a condemned dwelling.
  3. If monetary damages are available, they typically fall under one of these two categories: (1) moving expenses, and (2) deposit refund.  If a tenant is forced to move out early or on short notice, he or she may be entitled to compensation for moving expenses and other increased costs.  As for the deposit refund, the RLTA spells out very specific requirements for landlords demanding security deposits as the outset of the tenancy.  Namely, the landlord must have the tenant fill out a move-in inspection form (identifying defects in the dwelling so the tenant cannot be held responsible for them later), and the landlord must mail the tenant, within 14 days of move-out, an itemized list of deductions from the deposit, and any refund.  These issues are more complex than they sound, however, so you should consult with an attorney if you have concerns over your deposit.  More on what a landlord can charge you for below.
  4. A tenant can make a claim for damage to his or her personal property resulting from the landlord’s breach of his or her duties under the RLTA.  For instance, if a tenant reports to a landlord in writing the consistent spread of mold, and the landlord fails to reasonably begin remedying the problem within the time provided under the Act, the landlord can be liable to replace property damaged by the spread of mold, provided that the tenant also used reasonable care to prevent the mold from spreading.  On that note, as an important caveat, generally the tenant is responsible for preventing mold from growing and spreading, unless there is something about the dwelling itself that is conducive to mold growth, e.g. insufficiently sealed windows, rotted drywall or wall studs.
  5. Under most circumstances, there are no punitive damages in Washington.  This means a landlord generally cannot be punished by being forced to pay damages commensurate with the egregiousness of the conduct.  Rather, Washington law primarily allows for compensatory damages for actual losses.
  6. In most cases, emotional distress and other “non-economic” damages–those for which there is no price tag–are not recoverable in landlord-tenant disputes.

What a Landlord Can Charge For

There is considerable confusion (and sometimes worse) regarding what a landlord can and cannot charge you for, often times for landlords and their lawyers.  Here are some more general principles.  Again, nothing below should replace actual legal advice applicable to your case and situation.

  1. A tenant cannot be charged for “reasonable wear and tear.”  This term is difficult to define generally, but as an example, flattening or slight fraying of a carpet due to ordinary, repeated traveling on it.  In contrast, accidentally burning a hole in carpet is typically not reasonable wear and tear.  Generally, reasonable wear and tear refers to the natural aging of products through everyday use.  Things that are not reasonable wear and tear generally result from one specific incident.
  2. One of the most commonly disputed facts is what property damage existed prior to move-in, and what did not.  The move-in inspection form is supposed to reduce or eliminate such dispute, but it only works if tenants take it seriously and document all damage they see upon move-in.
  3. A landlord typically cannot charge you the cost of brand new carpet or a brand new appliance.  More often, the landlord can only charge the cost to replace a similarly used carpet or stove.  For instance, if a tenant ruins a carpet that is 9 years old with a 10 year expected life, the tenant will owe the landlord for the lost year, or 10% of the cost.  Often times landlords attempt to get tenants to finance “new stuff” for the unit, a tactic not supported under Washington law.  If a landlord’s property is damaged, he or she is entitled to be put in the same position he would have been in but for the damage, but not a better position, with the tenant paying for brand new carpet.

No blog post can advise you as to legal rights and steps to take in your specific situation because there are too many variables involved: the terms of the lease, the facts and evidence available, and the ordinances in any given municipality, which may be more restrictive than State law.  Because everyone should consult with a lawyer, and yet finding a lawyer is so difficult for tenants, I’ve compiled a list of tenant resources below.

Washington Law Help

Housing Justice Project of King County

UW Student Legal Services (for active UW students)

Law Help Pamphlet on Tenant Rights

Solid Ground



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