Seattle Attorneys Blog

Washington Schools Not Held to Heightened Duty of Care

November 16, 2018 | by Blair & Kim, PLLC

When parents send their children to school, they expect the school to supervise and care for the children. They do not anticipate a child being seriously injured at school. Parents may think the school has a heightened duty of care toward the students in its care, but that may not be the case, as recently found by the Washington Supreme Court.

According to the Court’s opinion, the plaintiff was injured in her high school woodshop class while using a radial table saw. She had been using a push stick to guide a board through the saw, but the board got stuck and she tried to dislodge it with her hand. Her thumb was severely cut, ultimately resulting in a partial amputation.

The teacher was supervising students outside the room and could not see the table saw when the plaintiff was injured. The teacher testified how he trained the students to use the table saw. He showed the students how to cut, and required them to make cuts under his supervision until they did it correctly. The students were required to take a written test. They were also required to make about 40 to 80 cuts under the teacher’s supervision. The plaintiff had made at least 60 cuts under the teacher’s supervision before being allowed to use the saw independently.

Tax Issues and Washington Child Support

November 8, 2018 | by Blair & Kim, PLLC

Tax issues can be a significant hindrance in Washington divorce cases. Couples may fight over who claims the tax exemption for the children, who declares the children as dependents, and the effect of any tax credits related to the children. In a recent case, a husband challenged the child support order due to several tax issues. He also challenged the asset distribution.

According to the court’s opinion, the couple had four children together. They separated in March 2015 and the wife obtained a domestic violence protection order. The husband moved out of the home. The husband stopped paying the mortgage in August and the home went into foreclosure. The wife learned that the husband arranged a short sale. After the wife and children moved out, the husband took the house off the market and moved back in.

The trial court awarded the house to both spouses “as tenants in common for sale” and ordered them to list the house for sale within 90 days. The trial court set the child support payment at $723.46. The trial court found the husband did not have sufficient means to pay spousal support and meet his own needs. The court also ordered the husband to pay half the wife’s attorney fees. The husband appealed.

Sealed Juvenile Records and Firearm Rights in Washington

November 8, 2018 | by Blair & Kim, PLLC

Criminal records, especially felony convictions, can have an ongoing impact on a person’s life. Convictions can affect a person’s rights, including the right to possess firearms. Washington criminal defense attorneys know that getting a juvenile record sealed can restore certain rights.

In a recent case, a Washington appeals court found that sealed juvenile adjudications do not preclude a person from possessing a firearm. The petitioner in this case had been found guilty of two class A felonies as a juvenile. Many years later, the court sealed those records. The petitioner was subsequently denied a concealed pistol license (CPL) on the basis of those felony adjudications. He petitioned for a writ of mandamus to compel the sheriff to issue the CPL, but the superior court denied the petition. He appealed.

The court found that the petitioner met the requirements of RCW 13.50.260 and ordered that the official juvenile court record, social file, and related agency records be sealed. The court also entered a subsequent order stating that the petitioner qualified for restoration of his firearm rights.

Washington Premises Liability Case Allowed to Proceed Despite Plaintiff’s Lack of Memory

October 30, 2018 | by Blair & Kim, PLLC

Sometimes an accident victim does not know the exact cause of the accident. They may not have seen what happened, or in some cases, the injuries may cause a loss of memory. A lack of memory can make a case very difficult, but Washington personal injury attorneys know that the difficulty may be overcome if there is other evidence showing the defendant’s liability.

A lack of memory was at issue in a recent case. The plaintiff suffered a head injury after falling while leaving a store. She filed suit against the tenant and the landlord of the store for failing to maintain safe premises. The trial court granted summary judgment in favor of the defendants, and the plaintiff appealed.

The plaintiff could not remember what caused her to lose her footing. The appeals court viewed the evidence in favor of the plaintiff. According to the record, there were three concrete steps, measuring 76 inches across the top step. There was a 37-inch wide plywood ramp over the stairs for wheelchair use. The ramp had a raised edge on either side, about an inch wide and two inches high. There were no handrails.

The Fifth Amendment, Washington Domestic Violence, and Protection Orders

October 30, 2018 | by Blair & Kim, PLLC

In many Washington domestic violence cases, a person faces criminal charges as well as a petition for a civil protection order. When there are “parallel” civil and criminal proceedings, there would be a risk that the criminal defendant may be compelled to incriminate himself or herself in the civil proceedings if not for the protections of the Fifth Amendment. In addition to protecting the defendant during the criminal trial, the Fifth Amendment also allows a person to refuse to answer official questions in other proceedings if the answer might tend to incriminate the person in future criminal proceedings. Washington courts do not automatically delay the civil case until the criminal case is over. Instead, they apply a balancing test based on several factors identified in King v. Olympic Pipeline Company, LLC to determine if the civil case should be stayed.

King was a wrongful death case following a pipeline rupture that resulted in a fire that killed three people. A criminal investigation focused partly on some of the defendants. Those defendants sought a limited partial stay of discovery in the civil case to preserve their Fifth Amendment right and the right to fully defend themselves in the civil case. The trial court denied their motion and the appeals court reviewed.

The Washington Appeals Court adopted factors considered by federal courts in parallel proceedings, noting that it was not necessarily an exhaustive list. The court must balance the factors in light of the circumstances and competing interests of the case.

Washington Landowner Not Liable for Hazards on Others’ Property

October 15, 2018 | by Blair & Kim, PLLC

Photo Credit: dvande / Shutterstock.com

Property owners may be liable for injuries that result from a dangerous condition on their property. The duty a property owner owes to a person on his or her property regarding a dangerous condition of the property often turns on the status of the injured person. A landowner has different obligations to business invitees, licensees, and trespassers. A Washington appeals court recently considered whether a landowner can be liable in a Washington premises liability case if the dangerous condition is actually on someone else’s property.

According to the appeals court’s opinion, an eight-year-old girl drowned while camping as part of a youth group. The landowner allowed the group to camp on the property for free for several years. The property was near a lake, and four counselors took 15 children swimming at a cove on the lake. To get to the cove, the group walked from the campsite across property owned by the federal government. The appeals court described the victim as a “non-swimmer.” According to the opinion, the counselors lost track of her while caring for another child. A search and rescue team found her body the next day.

The victim’s estate sued the landowners, alleging they had a duty to warn the child about the dangerous conditions in the cove. The trial court granted summary judgment in favor of the defendants, finding they did not have a duty to warn about conditions on property they did not own. The estate appealed.

Washington Court Upholds Marijuana Manufacture Conviction

October 8, 2018 | by Blair & Kim, PLLC

Photo Credit: HubbardSteve / Shutterstock.com

Washington criminal defense attorneys understand that people sometimes face drug charges because they were in a vehicle or a home where drugs were present. This can be particularly true of the owner or resident of the property where the drugs were found. Although a landlord generally cannot be held liable for a tenant’s criminal actions just because he or she failed to evict the tenant, a Washington appeals court recently upheld a conviction of a woman whose boyfriend allegedly had a marijuana grow operation in her home.

According to the appeals court’s opinion, the defendant lived in a home owned by her stepmother with no formal lease agreement. She shared the home with her children, her boyfriend, and her boyfriend’s brother. The police executed a search warrant and found 27 marijuana plants in the back yard, marijuana in the kitchen, and drying marijuana and glass pipes in the basement. The defendant was charged with manufacturing marijuana. She testified that the marijuana was her boyfriend’s and denied any involvement with the marijuana grow. She testified she had asked him to stop, but he did not do so. She admitted it was her choice to allow her boyfriend to remain at the residence.

Washington Child Support and Abdication of Visitation

October 8, 2018 | by Blair & Kim, PLLC

Photo Credit: Andrey_Popov / Shutterstock.com

When a parent does not exercise his or her visitation time, the child is obviously affected, but so is the other parent. In addition to any scheduling issues that may result, there are also financial effects on the other parent. A parent who completely stops visitation may reduce his or her own child-related expenses while increasing those of the other parent. A Washington appeals court recently held that, in a Washington family law case, a court may deviate from the standard calculation to put a greater child support obligation on a parent who abdicates visitation.

Facts and History of the Case

In this case, the parties had been divorced since 2004. Under a modified parenting plan, the father had residential time with the two children on Wednesday evenings, every other weekend, and half of holidays, school vacations, and other special occasions. The mother sought an increase in child support above the standard calculation in 2013. She argued she had an increased financial burden because the father had abdicated his residential time with the children. The trial court found the father had voluntarily stopped having contact with the children in late 2010. The trial court found it was not authorized to deviate from the standard calculation due to the father’s lack of residential time because the combined monthly income of the parties was less than $12,000. On appeal, the appeals court found the trial court did have the authority to deviate from the standard calculation where a parent lessens his or her financial responsibility by abdicating visitation. The appeals court sent the case back to the trial court to make appropriate findings and determine the appropriate deviation.

Failure to Mitigate Damages in Washington Personal Injury Case

October 1, 2018 | by Blair & Kim, PLLC

Photo Credit: DedMityay / Shutterstock.com

A defendant in a Washington personal injury case may try to limit damages by alleging the plaintiff failed to mitigate damages. A defendant seeking a failure to mitigate jury instruction must show that the plaintiff acted unreasonably in deciding on treatment when there were alternative options. The defendant must show through expert testimony that the alternative treatment would more likely than not improve the plaintiff’s condition. A defendant recently challenged a court’s decision not to instruct the jury on failure to mitigate in an automobile collision case.

According to the appeal court’s opinion, the defendant rear-ended the plaintiff’s vehicle. The plaintiff went to a chiropractor who found she had a ligament injury as a result of the accident. The chiropractor also found the injury was permanent.

The plaintiff filed suit and the defendant admitted liability, leaving only damages at issue for trial. According to the opinion, the plaintiff worked as a licensed practical nurse. She testified she had talked with her colleagues about her treatment options. She did not want to take medications that would interfere with her work, or to have surgery or injections. She testified the chiropractic treatments helped manage her pain. She also testified that immobilization was no longer recommended and that no one she talked to recommended it to her.

Washington No-Contact Order Precludes a Defense of Property Defense

October 1, 2018 | by Blair & Kim, PLLC

Photo Credit: Lukatme / Shutterstock.com

Violation of a Washington no-contact order is generally a gross misdemeanor. In some circumstances, however, it can be elevated to a class C felony if the violation includes an assault. Defense of property can be an affirmative defense to assault. The Washington Supreme Court has recently reviewed a case in which the defendant sought a jury instruction on defense of property as an affirmative defense to felony violation of a no-contact order.

According to the Court’s opinion, the defendant checked his car after thinking he saw someone near it. His phone and other items were missing. The defendant saw his former girlfriend walking down the street. There was a no-contact order prohibiting the defendant from coming near or having any contact with her at the time. He followed her and tried to take her purse to retrieve his phone. A witness testified to seeing a man hit a woman, then lift her off the ground and slam her back down. According to the appeal court’s opinion, the defendant denied hitting her.

The defendant was charged with felony violation of a no-contact order predicated on assault. He requested a jury instruction on defense of property. The judge, however, found he “was acting offensively, not defensively…” and was not entitled to the instruction. The jury convicted the defendant, and he appealed, arguing he had been improperly denied the jury instruction. The appeals court affirmed, finding the defendant was not entitled to the defense because he used force to try to recover the property, not prevent its theft.