IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES C. FUDA, individually and as
personal representative of the estate of                No. 74033-4-1
AUSTIN FUDA; TYLER FUDA, and                            (consolidated with
KELEIGHN FUDA, individually and as                      No. 74630-8-1)
statutory beneficiaries; DORIANNE
BEAUPRE, individually and as personal
representative of the estate of HUNTER                  DIVISION ONE
BEAUPRE; and CHAD BEAUPRE,
individually,                                           UNPUBLISHED OPINION

                     Appellants,

              v.
                                                                                            04)('
KING COUNTY, a municipal corporation;                                                       >„70
LONI MUNDELL, a single person, JOHN                                                •-"."1   C:)
and JANE DOE EMPLOYEES 1-25,                                                                -n.t.)..71
                                                                                       o
husband and wife, a marital community;                                                      > m
DOE COMPANIES 1-25, companies doing                                                3:s.      Pi 4
                                                                                       r-
business in the state of Washington,                                              9 c)v)
                                                        FILED: October 9, 2017    CA)
                     Respondents.                                                 0 a: -‹

      APPELWICK, J. — Fuda challenges the application of the discretionary

immunity doctrine. The doctrine prevented the jury from considering whether the

County should be liable for the deaths of two children because it negligently failed

to install a guardrail at the site of the fatal crash. Fuda also challenges the

imposition of sanctions. We affirm.

                                      FACTS

       On November 7, 2008, 16 year old Loni Mundell was driving 13 year old

Austin Fuda and 2 year old Hunter Beaupre on Green River Road in King County.
No. 74033-4-1/2


As the road curved, she lost control of the vehicle, crossed the other traffic lane,

and left the road. The vehicle traveled down an embankment and into the Green

River. Mundell survived, but Fuda and Beaupre died.

       Beaupre and Fuda's estates brought separate claims for wrongful death

against King County (County) and Mundell, among others. Their claims were

consolidated.1 The County moved for summary judgment based on discretionary

immunity.

      The County and its engineers use a "priority array" system to rank and

determine which county roads should receive guardrails. In 1994, County engineer

Norton Posey visited the site of the accident. He measured the width of the

shoulder to be 10 feet. Based on the 1993 King County road standards, a guardrail

was therefore not warranted at the accident site. Because guardrails were placed

on other areas of Green River Road in 1990 and 1994, Green River Road was

removed from the priority array at Posey's direction. In its motion for summary

judgment, the County claimed that the decision to remove the accident site from

its guardrail priority array program was entitled to discretionary immunity.

       The trial court held that "King County's decision to remove the Green River

Road from King County's guardrail priority array program is entitled to discretionary

immunity." Any guardrail evidence was therefore excluded. Fuda's remaining

negligence claims were that the County was negligent for (1) allowing trees to

overhang the roadway, (2) failing to sweep wet leaves, (3) failing to place warning



       1 We   refer to the appellants collectively as "Fuda."


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No. 74033-4-1/3


signs prior to the curve, (4) striping the road with substandard lane width, and (5)

constructing the roadway with a soft shoulder. The jury returned verdicts finding

both the County and Mundell2 not negligent. Fuda appeals.3

                                   DISCUSSION

       Fuda makes five arguments. First, he argues that the trial court erred in

granting discretionary immunity to King County for its decision not to install a

guardrail at the accident site. Second, he contends that the trial judge

misinterpreted previous summary judgment orders regarding discretionary

immunity. Third, he assigns error to the jury instructions. Fourth, he argues that

the trial court erred in imposing sanctions. Fifth, he argues cumulative error.

  I.   Discretionary Immunity

       Fuda first argues that the trial court erred in granting the County's motion

for summary judgment regarding all guardrail evidence. Fuda contends that this

was error, because Posey's measurements and removal of the road from the

priority array were an operational function, not a policy matter, and therefore not

within the County's discretionary immunity. The decision to remove the area in

question from the priority array program was supervised by Posey. He removed

the area from guardrail priority after a field visit that showed that the shoulder at

the accident site was wider than 10 feet. Under the program's standards the 10

       2  Mundell argues that the jury's special verdict finding Mundell not negligent
precludes any contributory negligence arguments on remand. But, because we
affirm, we need not address whether Mundell's negligence would be at issue in the
event of remand.
        3 Although it prevailed at trial, King County also appealed various trial court
rulings. However, neither King County nor Mundell assigns any error in their briefs.
Therefore, we do not address the rulings appealed by King County.


                                              3
No. 74033-4-1/4


foot wide shoulder meant that the road did not warrant placement of guardrail. The

trial court ruled that this decision was entitled to discretionary immunity.

       When reviewing a summary judgment order, we engage in the same inquiry

as the trial court. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400,

406 (1999). Summary judgment is proper when there are no genuine issues of

material fact, and the moving party is entitled to judgment as a matter of law. Id.

All facts and reasonable inferences are considered in the light most favorable to

the nonmoving party. Id. Questions of law are reviewed de novo. Id.

       Our Supreme Court explained the nature of discretionary immunity in

Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246, 407 P.2d 440

(1965). The Evangelical court noted that "in any organized society there must be

room for basic governmental policy decision and the implementation thereof,

unhampered by the threat or fear of sovereign tort liability." Id. at 254. In other

words, "'it is not a tort for government to govern.'" Id. at 253 (quoting Dalehite v.

United States, 346 U.S. 15, 57, 97 L. Ed. 1427, 73 S. Ct. 956 (1953) (Jackson, J.,

dissenting)).

       Holding that it is necessary to draw the line between "truly discretionary and

other executive and administrative processes," the Evangelical court announced a

four factor test to determine when discretionary immunity applies:

       (1) Does the challenged act, omission, or decision necessarily
       involve a basic governmental policy, program, or objective? (2) Is
       the questioned act, omission, or decision essential to the realization
       or accomplishment of that policy, program, or objective as opposed
       to one which would not change the course or direction of the policy,
       program, or objective? (3) Does the act, omission, or decision
       require the exercise of basic policy evaluation, judgment, and


                                              4
No. 74033-4-1/5


       expertise on the part of the governmental agency involved? (4) Does
       the governmental agency involved possess the requisite
       constitutional, statutory, or lawful authority and duty to do or make
       the challenged act, omission, or decision?

Id. at 255. The court held that "[i]f these preliminary questions can be clearly and

unequivocally answered in the affirmative, then the challenged act, omission, or

decision can, with a reasonable degree of assurance, be classified as a

discretionary governmental process and nontortious, regardless of its unwisdom."

Id. Our Supreme Court has also held that discretionary immunity is a narrow

doctrine, limited to " 'discretionary' " acts, not " 'ministerial' " or " 'operational' "

ones. Taggart v. State, 118 Wn.2d 195, 214, 822 P.2d 243 (1992) (quoting

Evangelical, 67 Wn.2d at 254-55). In order for a decision to qualify as

discretionary, the State must show that the decision was the outcome of a

conscious balancing of risks and advantages. Id. at 214-15.

       The outcome of the discretionary immunity claim turns on the application of

the Evangelical factors. The first factor asks whether the decision was part of a

basic governmental program. Evangelical, 67 Wn.2d at 255. As Posey stated in

a declaration, "The goal of King County's Guardrail Priority Program is to use the

yearly money allocated by the King County Council to construct guardrail[s] at as

many locations within the County as possible with the highest need first." Creating

and maintaining road safety features is a basic governmental program. Installation

of guardrails was part of such a program. We hold that the first factor is therefore

satisfied.




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No. 74033-4-1/6


       As to the second factor, whether the act is essential to effectuate the policy,

having a priority system that identifies areas of most need is part of allocating a

limited budget. Without a ranking system that accounts for key safety factors.,

decision makers would be left to guess at the areas of most need, or, alternatively,

would not be able to adequately identify need at all. The prioritization of areas of

need in the county is essential to the realization of the guardrail safety program.

       Third, questions of policy judgment are covered by discretionary immunity

only if made by high level executives as a result of conscious balancing of risks

and advantages. See Taggart, 118 Wn.2d at 215. Fuda acknowledged that the

engineer who created the priority array, County Road Engineer Louis Haff, was a

"high level executive." The array determines priority of projects based on

comparative factors aimed at identifying the most urgent needs.

       But, Fuda asserts that the most important party is Posey, because he

measured the area at issue, determined that it did not need a guardrail under the

County standards, and removed it from the array. Fuda does not allege that Posey

or the County negligently measured the roadway, nor does Fuda allege that the

County was negligent in creating the County road standards. Fuda alleges that

the County was negligent for removing the roadway from the priority array.4 But,

        4 In a declaration, Posey stated that, even if he did not remove the location
from the priority array in 1994, the guardrail's position in the priority array would
have meant that guardrail would not have been installed at the location until 2014
or 2015. In his briefing, Fuda does not make any argument contesting this fact.
Nor does he point to any portion of the record that contradicts Posey's statement.
The record supports the trial court's conclusion that the uncontroverted evidence
is that Fuda has not established cause in fact. Therefore, even if we held that
discretionary immunity does not apply, reversal on the guardrail issue would not
be warranted, because Fuda has not established cause in fact.


                                             6
No. 74033-4-1/7


Posey removed the section of road at issue based on County road standards which

stated that a road with a shoulder wider than 10 feet did not need guardrail. Posey

was simply providing data for the algorithm that implemented the priority array.

See Jenson v. Scribner, 57 Wn. App. 478, 483, 789 P.2d 306 (1990) (holding that

"data collection is merely a function of planning and is, thus, a part of the State

decisionmaking process. It is not the implementation of a decision. As a result, it

is a discretionary act for which there is immunity." (citation omitted)). Fuda does

not contend that Posey was negligent in measuring the accident site or that the

algorithm itself is defective. Thus, Fuda's claim is either to the County's policy

choice to use a priority array or its budget decision for guardrail implementation.

Such decisions are the kind of conscious balancing of risks and advantages by

high level executives that discretionary immunity applies to. See Taggart, 118

Wn.2d at 214-15. The act or omission alleged—the failure to install a guardrail—

required the exercise of basic policy judgment. The third factor is satisfied.

       The last factor—whether the County had authority to make the decision in

question—is not at issue here. Id. at 255. Therefore, each of the Evangelical

factors is satisfied. The trial court correctly applied the doctrine of discretionary

immunity.

       We have previously reached a similar conclusion and held that discretionary

immunity applied to a guardrail claim. See Avellaneda v. State, 167 Wn. App. 474,

484-85, 273 P.3d 477 (2012). The State used a priority array similar to the

County's. See id. at 476-77. The court analyzed the Evangelical factors, and




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No. 74033-4-1/8


determined that discretionary immunity applied to the failure to construct a barrier

based on the State's priority array system. Id. at 482-84.

       Fuda contends that we reached the opposite result in Ruff v. County of King,

72 Wn. App. 289, 865 P.2d 5 (1993), rev'd on other grounds, 125 Wn.2d 697, 867

P.2d 886 (1995), and that it should control over Avellaneda.5 In Ruff, the County

argued that its guardrail priority array shielded it form liability due to discretionary

immunity. Id. at 294. Applying the Evangelical test, the court disagreed:

               Here, King County has not demonstrated that its guardrail
       program fits within this exception. Unlike Jenson whose median
       barrier installation program derived from the policy making of the
       transportation commission and the Legislature, King County has not
       established factually that its guardrail installation program is anything
       more than a routine administrative matter. The County attributes the
       program's initiation to Haff's efforts and indicates that the King
       County Council authorized the annual budget. There is no evidence,
       however, showing that the council had a specific objective in mind or
       paid particular attention to this project.            Funding for road
       improvements is not the equivalent of exercising a considered policy
       decision as to one specific guardrail installation. There is no
       indication that the staff could not change the priority of the projects
       on the list or that continued funding of the program to complete this
       project was assured. Nor does the evidence establish that Haff or
       the special engineer he hired was a "truly executive level" personnel.
       Therefore the creation and implementation of its guardrail
       prioritization program does not, under these facts, immunize it from
       suit.

Id. at 296.

       Fuda argues that his claim is akin to Ruff's in that the failure to install a

guardrail is merely a component of his claim that the County was negligent in its

duty to provide reasonably safe roads. But, discretionary immunity turns on




       5   Avellaneda, 167 Wn. App. 474, did not cite Ruff in its analysis.


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No. 74033-4-1/9


•whether the facts of this case ultimately satisfy the Evangelical factors.6 In Ruff,

the County did not present the evidence necessary to support the Evangelical

factors.7 Here, they do. Fuda was not entitled to present the absence of the

guardrail as a basis for negligence. He was, however, entitled to present all of the

other alleged negligent acts or omissions. The jury rejected the claim that any of

those acts or omissions caused the deaths.

        The trial court did not err in granting the County's motion for summary

judgment based on discretionary immunity.

  II.   Orders in Limine

        Fuda assigns error to the trial court's orders in limine that excluded certain

evidence. He argues that it misinterpreted the scope of previous trial judge's

rulings regarding guardrail evidence at trial. We review the grant or denial of a

pretrial motion to exclude evidence for an abuse of discretion. See Douglas v.

Freeman, 117 Wn.2d 242, 255, 814 P.2d 1160 (1991).




        6 In his reply brief, Fuda argues that application of the Evangelical factors
to the failure to install a guard rail is not warranted. He contends that these factors
are not relevant, because his overarching claim is not that the County negligently
failed to install a guardrail, but that the County negligently failed to maintain the
road in a safe condition. But, he nevertheless stresses that reversal is warranted
under Ruff, where the court applied the Evangelical factors. Thus, Fuda effectively
claims that the priority array decision should not be subject to the Evangelical
factors, while also relying heavily on a case where the court applied the
Evangelical factors to a priority array. We do not find this contention persuasive.
        7 On review, our Supreme Court reversed the Court of Appeals decision in
Ruff, but on the grounds that Ruff had not established that the County was
negligent in maintaining the roadway. See Ruff, 125 Wn.2d at 706-07. The
Supreme Court explicitly declined to address the Court of Appeals' discretionary
immunity analysis. Id. at 707.


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No. 74033-4-1/10


       Judge Bill Bowman8 granted the County's summary judgment motion

regarding guardrail claims. That order stated:

             1.     King County's decision to remove the Green River
      Road from King County's guardrail priority array program is entitled
      to discretionary immunity.

            2.      Norton Posey's shoulder measurements constitute
      data gathering which is part of the decision making process.
      Accordingly it is also entitled to discretionary immunity.

              3.     To the extent Mr. Posey's actions could be
      characterized as implementing the priority array program, the
      undisputed testimony is that the guardrail still would not have been
      installed at the time of this incident given its position in the array.

           2. [sic] For these reasons, Defendant King County's Motion for
       Summary Judgment regarding Plaintiffs' guardrail claims is
       GRANTED.

Moreover, Judge Bowman incorporated his oral ruling, which stated in part:

              The kind of decisions that would be outside the discretionary
       immunity would be negligent implementation of the program itself,
       which is a very different thing than determining what is included and
       what is not included.

              And so the decision of Mr. Posey to evaluate and not to
       include this particular roadway in the array for construction of the
       guardrail I think is very much the same type of calculation that was
       made in the Avellaneda case, and I think is subject to the same
       discretionary immunity that Highway 512 was in Avellaneda. And,
       therefore, I will grant King County's motion with regard to the
       guardrail construction.

Later, in an order denying reconsideration, Judge Bowman clarified these rulings

as follows:

             To the extent the Plaintiffs' [sic] seek clarification, the issues
       before the Court were whether the County was entitled to
       discretionary immunity for its decision in 1994 to remove this

       8For clarity, we refer to the two judges, Judge Bowman and Judge Tanya
Thorp, by their names.


                                             10
No. 74033-4-1/11


       accident site from its priority array and whether the data gathering
       process that supported that decision was entitled to discretionary
       immunity. The Court addressed both of those issues in the order.
       No other issues were before the Court.

Judge Tanya Thorp presided over trial. Fuda argues that two of her orders in

limine used an erroneously broad interpretation of Judge Bowman's prior summary

judgment order.

       A. Order in Limine Six

       First, Fuda argues that Judge Thorp erred in granting motion in limine six.

That decision excluded any references to guardrails in three specific time periods:

1988-1994, 1994, and 1994-November 7, 2008. Fuda contends that, because

Judge Bowman's summary judgment order related to the 1994 decision to remove

the site from the priority array, references to guardrails for any time periods besides

1994 were not barred by that order. Judge Bowman's order referenced the year

1994 only to identify when Posey's decision occurred. The jury was well aware of

the fact that no guardrail was in place at the time of the accident. Fuda wished to

address whether the County had a duty to have it in place. The discretionary

immunity ruling resolved both whether a guardrail should have been in the array

and whether it should already have been in place. Fuda's argument that the order

was more limited is unfounded. The trial court did not abuse its discretion in

granting motion in limine six.

       B. Order in Limine 13

       Fuda also argues that the trial court erred in granting motion in limine 13.

That order granted the County's motion and limited Toby Hayes's testimony




                                             11
No. 74033-4-1/12


preventing him from discussing the probability of death as a result of vehicle

hypothetically impacting a guardrail. Hayes' declaration opined that if a guardrail

had been present at the site, serious injuries would have been avoided. The trial

court's reasoning for granting motion in limine 13 stated "See ruling on motion

number 6."

       For the same reasons that the trial court did not abuse its discretion in

granting motion in limine 6, it did not abuse its discretion in granting motion in

limine 13. If any references to guardrails were excluded from trial, Hayes's

testimony on the likelihood of injuries upon impact with a guardrail necessarily had

to be excluded. The trial court did not abuse its discretion in excluding all

references to guardrails, and therefore did not abuse its discretion in excluding

Hayes's testimony about the likelihood of injury upon an impact with guardrails.

III.   Jury Instructions

       Fuda argues that the jury instructions were erroneous. He primarily assigns

error to the jury instructions' omission of guardrails, which was a result of the trial

court's discretionary immunity ruling. As a result of this omission, he contends that

misstated the law and prevented Fuda from fully arguing his theory.

       Whether to give a certain jury instruction is reviewed for abuse of discretion.

Fergen v. Sestero, 182 Wn.2d 794, 802, 346 P.3d 708 (2015). The propriety of a

jury instruction is governed by the facts of the particular case. Id. at 803. Jury

instructions are generally sufficient if they are supported by the evidence, allow

each party to argue its theory of the case, and, when read as a whole, properly




                                             12
No. 74033-4-1/13


inform the trier of fact of the applicable law. Id. Legal errors in jury instructions

are reviewed de novo. Id.

       A. Jury Instruction 14

       Fuda assigns error to jury instruction 14. That instruction stated that Fuda's

negligence claim was based on the County allowing trees to overhang the road,

failure to sweep wet leaves, failure to place warning signs, the lane width, and the

type of shoulder. But, Fuda argues that it should have mentioned failure to install

a guardrail or barrier because this could more completely describe the basis of his

claim. Whether instruction 14 was erroneous therefore turns on whether the order

in limine that barred mentioning of guardrails was erroneous. And, as discussed

above, it was not. Therefore, jury instruction 14 was not erroneous.

       B. Jury Instruction 15

       Modeled after 6A Washington Practice: Washington Pattern Jury

Instructions: Civil 140.01, at 59-61 (6th ed. 2012) (WPI), jury instruction 15 stated

that the county has a duty to exercise ordinary care in the construction and

maintenance of its roads:

             Counties have a duty to exercise ordinary care in the design,
       construction, maintenance, and repair of their public roads to keep
       them in a reasonably safe condition for ordinary travel. This duty is
       owed to all persons whether those persons are negligent or fault free.

             A county does not have a duty to (1) anticipate and protect
       against all imaginable acts of negligent drivers, (2) update every road
       and roadway structure to present-day standards, or (3) make a safe
       road safer.




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No. 74033-4-1/14


Instead of the second paragraph that discusses limitations on the County's duty,

Fuda proposed that the instruction also clarify the specifics of the County's duty:

       . . . This duty is owed to all persons whether those persons are
       negligent or fault free.

              This duty includes the duty to eliminate an inherently
       dangerous or misleading condition. The duty requires the County to
       reasonably and adequately warn of a hazard and maintain adequate
       protective barriers where such barriers are shown to be practicable
       and feasible.

             If you find the Green River Roadway was inherently
       dangerous or misleading, you must determine the adequacy of the
       corrective actions under all of the circumstances. If you determine
       the County's corrective actions were adequate, then you must find
       the County has satisfied its duty to provide reasonably safe roads.

       Fuda contends that failure to give this proposed instruction was erroneous,

because the instruction given focused on limitations on the county's duty, but did

not mention the county's affirmative obligations. Fuda did not present a proper

alternative instruction. It interjected the duty to maintain protective barriers which

was an end run on the discretionary immunity ruling. The court was correct to

reject Fuda's proposed instruction, because a guardrail is a barrier. And, Fuda

does not demonstrate that the pattern instruction given was a misstatement of the

law. His argument is that the instruction was one-sided. But, jury instructions are

heavily dependent on the facts of the case, and within the trial court's discretion.

Feroen, 182 Wn.2d 802-803. On these facts, the trial court did not abuse its

discretion giving instruction 15.




                                             14
No. 74033-4-1/15


       C. Jury Instruction 16

       Fuda assigns multiple errors to jury instruction 16. This instruction stated

that, in order to find the county negligent, the jury must find that the county had

notice of an unsafe condition.9

       First, he contends that the explanation of notice was in error. The

instruction stated that a county is deemed to have notice if, under ordinary care, it

should have discovered the condition. But, Fuda contends that the instruction

should have also informed the jury of scenarios where no notice is required, such

as when the government itself created the unsafe condition. But, the comment to

the pattern instruction that this instruction was modeled after, WPI 140.02, states

that no such special notice instruction is required when the condition was created

by the county. See WPI 140.02 authors' cmts at 64. This is because WPI 140.01,

which instruction 15 was modeled after, adequately covers such situations by

stating that the county has a duty to exercise ordinary care in the construction and

maintenance of its roads. Id. We conclude that the trial court did not abuse its

discretion by not giving the additional special instruction on notice.

       Fuda also contends that instruction 16 was erroneous, because it did not

include the County's duty to maintain protective barriers where feasible. But,

again, for the same reason that the trial court did not err in excluding references to



       9 While the instruction did not single out any single condition of which the
County must have had notice, Fuda's negligence claims involved: (1) allowing
trees to overhang the roadway, (2) failure to sweep wet leaves, (3) failure to place
warning signs at the curve, (4) striping the road with substandard lane width, and
(5) constructing the roadway with a soft shoulder.


                                             15
No. 74033-4-1/16


barriers, it did not err in excluding the county's duty to maintain barriers in

instruction 16.

       Fuda's final alleged error in instruction 16 is that it included two sources of

inapplicable law. It included a statement that a county cannot be negligent if it only

knew that an unsafe condition might, or even probably, develop. This language

comes from the holding in Laguna v. State, 146 Wn. App. 260, 265, 192 P.3d 374

(2008), that moisture and freezing temperatures are only potentially dangerous

conditions. Fuda argued to the trial court that the accumulation of leaves and wet

debris is distinguishable from the moisture and freezing temperatures that were

present in Laguna. Therefore, he claimed, it was not merely a potential danger,

but an existing danger. But, we believe that this condition is sufficiently analogous

to the moisture and freezing temperatures that warranted this instruction in

j_aquna. It is a seasonal variation on the roadway surface that may or may not

occur at various times. But, once the ice forms, the risk is there to be discovered,

just as it is when the leaves fall and accumulate. Therefore, akin to Laguna,

informing the jury that the County was not responsible for potential or probable

dangers was not error.

       The second sentence that Fuda contends used inapplicable law stated that

the County has no duty to inspect its roadways. Fuda acknowledges that that

sentence was grounded in The-Anh Nquyen v. City of Seattle, 179 Wn. App. 155,

171, 317 P.3d 518 (2014). But, like in Nguyen, Fuda "cites no common law,

statutory, or regulatory authority requiring a municipality to inspect its street




                                             16
No. 74033-4-1/17


infrastructure as a component of its duty to provide streets that are reasonable

safe for ordinary travel." Id. The trial court acted within its discretion in determining

that the jury should be instructed not to impose a duty to inspect.

       D. Jury Instruction 17

       Jury instruction 17 stated in relevant part that the jury may not use testimony

regarding the presence or absence of guardrails. Fuda argues that this was error,

because the trial court erred in holding that discretionary immunity applied to the

decision not to install a guardrail, and because the trial court misinterpreted prior

orders. These arguments fail for the same reasons that Fuda's discretionary

immunity arguments fail.

IV.    Sanctions

       The trial court sanctioned Fuda for multiple actions. Those actions primarily

related to (1) violation of orders in limine and (2) late disclosure of expert witness

testimony. This court reviews a trial court's imposition of sanctions for abuse of

discretion. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d

299, 338, 858 P.2d 1054 (1993). A trial court abuses its discretion when its order

is manifestly unreasonable or based on untenable grounds. Id. at 339.

       A. Sanctions for violation of orders in limine

       Order in limine 4g excluded any references to how the deaths have affected

family or friends. Fuda's attorney Ann Deutscher was sanctioned for repeatedly

violating this order. The trial court's order imposing sanctions listed roughly eight

instances where witnesses discussed personal grief, often elicited by counsel's




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No. 74033-4-1/18


questioning. After the court had already "addressed at length the multiple

violations of 'these simple orders,' "the court found that counsel continued to invite

violation of order in limine 4g. The court therefore imposed sanctions of $1000

against Fuda's attorney Deutscher.

       Fuda asks this court to reverse the imposition of these sanctions, because

inexperienced witnesses "often give unanticipated answers." But, the trial court's

findings suggest that the trial court had a sufficient factual basis to conclude that

this went beyond mere witness inexperience. Fuda violated order 4g multiple

times. Then, the court cautioned the parties. Then 4g was again violated. After

the trial court's warning, Deutscher even stated to witness Colette Peterson,

Hunter Beaupre's stepmother, in front of the jury, "You have been through a lot."

The trial court's lengthy and detailed explanation for its ruling, with multiple

references to portions of the record, satisfy us that the decision was not manifestly

unreasonable, or based on untenable grounds.

       The trial court also sanctioned Fuda's attorney James Dore, Jr., for violation

of the order in limine that excluded the guardrails issue. Before Dore examined

witness Marlene Ford, the court and the parties discussed at length the extent to

which the orders in limine limited Ford's ability to discuss the condition of the road.

But, a short time later, while questioning Ford, Dore read verbatim from a

deposition transcript that explicitly mentioned guardrails. The County immediately

objected and asked for "a very steep monetary sanction." The court imposed

$2000 in sanctions against Dore. Its findings stated that Dore "extensively argued




                                             18
No. 74033-4-1/19


with the Court about its clear ruling" before Dore mentioned guardrails, and that

mentioning guardrails after arguing with the court was an "intentional violation" of

the court's orders. .

       Fuda argues that the transcript shows that Dore's uttering of the word

guardrail was inadvertent.       The trial court's order noted counsel's prior

argumentative tone about its "clear ruling," yet counsel nevertheless violated those

rulings. There was a lengthy exchange between the court and counsel prior to the

violation about the permissible scope of testimony as it related to guardrails. The

abuse of discretion standard recognizes that deference is owed to the judicial actor

who is better positioned than another to decide the issue in question. Fisons, 122

Wn.2d at 339. In the context of this lengthy trial, the trial court was best positioned

to evaluate whether the sanctions were warranted. It did not abuse its discretion

in sanctioning Dore.

       Fuda also contends that the amount of the monetary sanctions of $2000

against Dore, and $1000 against Deutscher, were excessive. RCW 7.21.050(2)

gives statutory authority to courts to impose sanctions up to $500 for each separate

instance of contempt. A court may impose sanctions beyond statutory authority,

and instead under its inherent contempt power, only if it finds that the statutory

basis would be inadequate. State v. Boatman, 104 Wn.2d 44, 48, 700 P.2d 1152

(1985). Fuda contends that the trial court erred in concluding that the statutory

authority was insufficient. He contends that the trial court's explanation was merely

conclusory.




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       But, the trial court's 19 page order imposing sanctions of over $500

referenced four separate categories of sanctionable conduct, by multiple

attorneys. The trial court warned counsel before subsequent violations of orders

in limine. Counsel disclosed experts late, violated multiple motions in limine, and,

with references to the transcript, the trial court even observed that counsel

"extensively argued with the Court" about clear rulings. The trial court viewed

these violations as intentional. The finding that statutory contempt authority would

be insufficient was not merely conclusory. The trial court did not err in assessing

sanctions beyond statutory limits.10

       B. Sanctions for late disclosure of experts

       The trial court also imposed sanctions on Fuda for late disclosure of experts.

Two days before trial, Fuda disclosed that his experts would be expressing

opinions on "barriers," rather than "guardrails." According to the trial court, "In all

material respects the disclosures were identical to the reports previously prepared

by the experts regarding the need for and effect of guardrails." And, the trial court

concluded that "[o]ffering new opinions that simply substitute the word 'barrier' for

the word 'guardrail' just days before trial was a blatant effort to circumvent the

Court's July 26, 2014 Order granting summary judgment and its order granting

King County's Motions in Limine Nos. 6 and 7." The trial court therefore excluded

these new expert opinions.



      1° To exercise its inherent contempt authority beyond statutory authority, the
court must also comply with due process. See Boatman, 104 Wn.2d at 48. But,
Fuda does not argue that the trial court's actions violated due process.


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       Fuda argues that the trial court erred, because at other points pretrial he

and his experts gave notice that barriers other than guardrails might be referenced.

He notes that his complaint referenced "barriers," not just guardrails. And, his

experts referenced other barriers in their depositions. But, given the centrality of

the barrier/guardrail argument to his case, it is implausible to believe the ruling on

discretionary immunity would not encompass the duty of the County as to any and

all barriers. And, the disclosure occurred after the discovery cutoff. Even, if there

was a meaningful distinction between guardrails and barriers, the County did not

have the benefit of deposing Fuda's experts on that distinction. And, the County

would be disadvantaged in preparing its own experts on barriers. The trial court

did not err in sanctioning Fuda for late disclosure of experts.

       Fuda also argues that the trial court's decision on the level of sanction—

excluding the expert opinions—was excessive. He argues that continuing trial, for

example, would have been a more appropriate lesser sanction than exclusion of

the expert opinions.

       A trial court may exclude expert testimony as a sanction upon a showing

that (1) the discovery violation was willful or deliberate, (2) the violation

substantially prejudiced the opponent's ability to prepare for trial, and (3) the court

explicitly considered less severe sanctions. Teter v. Deck, 174 Wn.2d 207, 216-

17, 274 P.3d 336 (2012). The record supports the trial court's conclusion that the

late disclosure was willful, because the plaintiffs violated the trial court's guardrail

orders in other instances, as well. The County was prejudiced, because the




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disclosure was made two days prior to trial, but the case had been in litigation for

over four years leading up to trial. And, the court explicitly identified that less

severe sanctions, such as monetary sanctions, would not be sufficient, because

the County would be forced to respond to brand new expert testimony a mere two

days before trial. Even if monetary sanctions were imposed, the County would still

suffer a heavy burden of preparing to address these new opinions. The trial court

did not abuse its discretion in excluding the expert opinions regarding barriers."

      We affirm.




WE CONCUR:




       11 Fuda  also argues cumulative error warrants reversal. But, because we
find no error, we find no cumulative error.


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