Cases The Bianchi Law Firm Has Handled

MacKenzie v. State, State v. Meagher, City v. Shane, 114 Wash.App. 687, 60 P.3d 607 (December 23,2002)

Defendant was charged with driving under the influence of intoxicating liquor and any drug (DUI) following lowering of breath alcohol concentration limit and adoption of associated regulations. The trial held that evidence of the breath test results was inadmissible, and State file writ of review. The Superior Court reversed, and defendant appealed. Defendant's appeal was consolidated by the Court of Appeals with an appeal by another defendant convicted of DUI, and an appeal by city in an administrative license revocation proceeding. The Court of Appeals held that: (1) changes made to breath test machines did not constitute either a "software update" or a "recalibration" such that quality assurance procedure was required; (2) regulation adopted by State Toxicologist regarding admissibility of breath test results to correct oversight when adopting new breath test regulations was properly enacted as an emergency regulation; (3) emergency regulation was retroactive; and (4) motorist who had her license suspended in administrative proceeding did not have standing to challenge regulation.

Superior Court decisions holding tests admissible affirmed, Superior Court decision holding regulation improperly retroactive reversed.

City of Seattle v. Keene, 108 Wn. App. 630, 31P.3d 1234 (Wn.App. Div. 1, October 1, 2001)

City brought petition for writ of certiorari after Seattle Municipal Court judge in driving under the influence (DUI) case found blood-alcohol test software maker in contempt and granted defendant's motion to suppress test results. The Superior Court, King County, denied the petition. City appealed. The Court of Appeals held that (1) certiorari is available to correct errors of law, and (2) remand was necessary to determine whether an adequate remedy other than certiorari was available to the City. Reversed and remanded.

City of Everett Police Dept. v. Real Property Known as 4827 - 268th St. NW, Stanwood, Snohomish Co., 86 Wn.App. 69, 935 P.2d 650 (Wn.App. Div. 1, April 28, 1997)

Police department filed forfeiture action pursuant to marijuana grow operation forfeiture statute. The Superior Court, Snohomish County, dismissed action as no grow operation existed at the time of the warrant was executed. City appealed, claiming that the grow operation had existed shortly before execution of search warrant and only ceased because law enforcement activity made the operator suspicious. The Court of Appeals held that (1) "law enforcement intervention" exception to forfeiture statute's "present" requirement was narrow; (2) exception did not apply as grow operation was never discovered and police did not shut down operation; and (3) public utility district employee's activities coupled with police officers' "knock and talk" did not constitute law enforcement intervention to fall within exception. Affirmed.

Tellevik v. Real Property Known as 31641 West Rutherford Street Located in City of Carnation, Washington, 125 Wn.2d 364, 884 P.2d 1319 (Wash., December 8, 1994)

In an action seeking forfeiture of residential property for violation of drug laws, the Superior Court, King County, dismissed the complaint, and the State appealed. The Supreme Court, 838 P.2d 111, 845 P.2d 1325, reversed and remanded for full adversarial hearing. When the hearing was not held within 90 days of mandate, the Superior Court granted claimants' motion to dismiss, and the State appealed. The Supreme Court held that: (1) seizure provisions of state civil forfeiture statute afforded claimants adequate due process protection, but (2) State's failure to afford claimants adversarial hearing within 90 days of Supreme Court's mandate warranted dismissal. Affirmed.

Tellevik v. Real Property Known as 31641 West Rutherford Street, Located in City of Carnation, Washington, and All Appurtenances and Improvements Thereon, 120 Wn.2d 68, 838 P.2d 111, (Wash., October 15, 1992)

Government brought forfeiture proceeding against real property. The Superior Court, King County, found the forfeiture statute authorizing seizure of real property unconstitutional on its face and as applied to seizure of private residence and residential rental property. Appeals were taken. The Supreme Court held that: (1) real property subject to seizure under forfeiture statute does not lose status even if illegal activity stops before seizure, (2) forfeiture statute was not unconstitutional on its face or as applied under the due process clause; and (3) government was entitled to complete its discovery in connection with innocent owner defense. Reversed and remanded.

Ford v. Red Lion Inns, 67 Wn. App 766, 840 P.2d 198 (Wn. App, Div. 1, August 10, 1992)

Employee of company which had contracted with hotel for rooms and parking area fell in hotel's parking lot, and the employee brought negligence action against hotel. The Superior court granted summary judgment in favor of the hotel, and the employee appealed. The Court of Appeals held that although the hotel had a duty of reasonable care regarding icy conditions, the hotel's actions did not pose unreasonable risk to the employee who was an invitee upon the premises. Affirmed.

State v. Neher, 112 Wn.2d 347, 771 P.2d 330(Wash., April 13, 1989)

Defendant was convicted of vehicular assault by the Superior Court, King County, by jury verdict. Defendant appealed. The Court of Appeals, 52, Wn.App. 298, 759 P.2d 475, affirmed. The Supreme Court held that the vehicular assault statute does not require that the defendant's actions be the sole proximate cause of injury, but only that defendant's actions be one cause of injury. Affirmed.

Wolf. State Department of Motor Vehicles, 27 Wn.App. 214, 616 P.2d 688 (Wn.App. Div.1, September 2, 1980)

Motorist appealed from a judgment of the King County Court, which upheld a determination by the Department of Motor Vehicles that his driver's license be revoked for six months. The Court of Appeals held that: (1) trial court's finding that motorist had failed to cooperate in the administration of a breathalyzer test was supported by substantial evidence in the form of testimony by the administering officer and would not be disturbed on appeal; (2) burden did not shift to the Department to show that the breathalyzermachine was functioning properly; (3) motorist was not entitled to an opportunity to take a second test; and (4) because the license revocation proceeding was civil, as opposed to criminal, in nature, no error could be predicated on theory that a motorist's right to counsel was violated while he was in custody and before administration of breathalyzer test. Judgment affirmed.

Boyle v. Emerson, 17 Wn.App. 101, 561 P.2d 1110 (Wn.App. Div. 1, March 14, 1977)

Plaintiff, employed by a private escort service as a full-time motorcycle escort driver, sued for injuries suffered as a result of a collision between the motorcycle and funeral procession being escorted. The King County Superior Court found the plaintiff contributorily negligent and reduced his verdict accordingly. Plaintiff appealed. The Court of Appeals held that the escort service employee retained the status of a favored driver due to state-authorized flashing red lights but was not, by reason of his connection with the funeral procession, authorized to use a siren, and was thus in a less advantageous position than one operating under statutes pertaining to those operators of authorized emergency vehicles who are authorized to use sirens. No favored driver is authorized to take chances or to exercise his right-of-way when a reasonably prudent person would not. In view of the evidence that defendant, in the procession, looked in his mirror without seeing plaintiff coming and that plaintiff "wasn't paying any attention to the cars" he was passing, contributory negligence was a jury question. Judgment affirmed.

McLeod v. State Department of Motor Vehicles, 16 Wn.App. 400, 556 P.2d 563 (Wn.App. Div.1, November 22, 1976)

Department of Motor Vehicles appealed from order of the Superior Court, King County, which ordered reinstatement of motorist's driving privileges. The Court of Appeals held that the report signed by a police officer in the presence of a notary was sufficient to confer jurisdiction upon the department for the purpose of revoking a driver's license, even though the officer did not raise his right hand or affirm the truthfulness of the report. Reversed.

Metcalf v. State Department of Motor Vehicles, 11 Wn.App. 819, 525 P.2d 819 (Wn.App. Div.1, August 26, 1974)

Department of Motor Vehicles hearing officer upheld action of the Department in revoking, upon police officer's unsworn report, driver's license of motorist who refused to submit to a chemical test of his breath after being arrested for driving while intoxicated. On appeal, the Superior Court, King County, held a trial de novo and granted the Department of Motor Vehicles appealed. The Court of Appeals held that the Department had no jurisdiction to revoke the motorist's driver's license on the basis of an unsworn report. Affirmed.

Balmer v. Dilley, 81 Wn.2d 367, 502 P.2d 456(Wash., November 2, 1972)

Actions under wrongful death and survival statutes were brought as a result of death of passengers in a one-car accident. The Superior court, Grant County, rendered judgment on verdict for defendant, and plaintiffs appealed. The Supreme Court held that the trial court erred in giving instruction on contributory negligence of the passengers, though it had snowed earlier in the day and passengers were aware of desirability of having snow tries for trip and, with driver, had abandoned effort to install snow tires when rims on which they were mounted would not fit car, where, inter alia, record did not show beyond speculation that the fatal accident was proximately caused by the worn rear tires and no rule of the road was shown to have been violated by operation of a car with worn tires under the circumstances. Reversed; new trial granted.

Fugere v. Pierce, 5 Wn.App. 592, 490 P.2d 132 (Wn.App. Div.2, October 13, 1971)

Action for personal injuries sustained in a three-vehicle collision. The Superior Court, Pierce County, entered judgment on verdict in favor of plaintiff in an amount substantially less than her special damages, and she appealed. The Court of Appeals held that evidence that plaintiff motorist's lacerated liver was caused by being thrown into steering wheel by almost simultaneous collisions with third party's oncoming vehicle and defendant's following vehicle was insufficient to justify submission to jury of issue of apportionment of damages, notwithstanding medical testimony that it was more likely that head-on collision would throw a person forward into steering wheel than a rear-end collision, in light of further evidence that plaintiff's collision with oncoming vehicle, which was rather superficially damaged in right rear fender and wheel, was not head-on collision and that defendant's following vehicle struck plaintiff's automobile in left front door area. Reversed and new trial granted.

Goldfarb v. Wright, 1 Wn.App. 759, 463 P.2d 669 (Wn.App. Div. 1, January 12, 1970)

Action for personal injuries sustained when plaintiff's automobile, while waiting at intersection for traffic signal to change, was struck from the rear by defendant's vehicle. The Superior Court, King County, following jury's verdict for defendant, granted plaintiff's motion for new trial as to damages only, and defendant appealed. The Court of Appeals held that the defendant's unsupported testimony that brakes had functioned properly prior to accident and then had suddenly failed for reason unknown to her would not permit jury to determine whether she complied with standards set out in the statute requiring brake equipment or whether, in the exercise of reasonable care, she should have known of defective condition of brakes, in absence of any physical evidence of defect in brake r braking mechanism. Affirmed.

McCain v. Peterson, 76 Wn.2d 288, 456 P.2d 359 (Wash., June 19, 1969)

Automobile collision case. The King County Superior Court granted a new trial, after the jury had returned a verdict for plaintiffs and plaintiffs appealed. The Supreme Court, held that as the record was devoid of substantial evidence that conditions beyond defendant motorist's control forced her to violate statutory prohibition against changed lanes unsafely, court properly refused defendant's requested instruction that, although violation of a statute generally constitutes negligence as a matter of law, the violation does not render one liable if due to causes beyond the violator's control and which the violator could not ordinarily have guarded against. Reversed and remanded with instructions to enter judgment on the verdict for plaintiffs.

Jung v. York, 75 Wn.2d 195, 449 P.2d 409 (Wash., January 10, 1969)

Action brought by a pedestrian and her husband against a motorist and his wife for injuries the pedestrian sustained when she was struck by automobile in an intersection. The Superior Court of King County entered judgment for plaintiffs, and defendants appealed. The Supreme Court held, inter alia, that as there was no evidence of circumstances which have alerted the pedestrian, to whom right-of-way was yielded in crosswalk by motorist in first lane of traffic, to the fact that defendant's approaching vehicle was going to fail to yield right-of-way in time to avoid an accident would be yielded, and that the pedestrian had no duty to stop and look before proceeding into second lane of traffic. Affirmed.

Petersavage v. Bock, 72 Wn.2d 1, 431 P.2d 603 (Wash., August 31, 1967)

Action brought by plaintiff who collided with the rear of a vehicle operated by defendant who made a left turn from a parking lot across three westbound traffic lanes and into eastbound lane in which plaintiff was driving. The Supreme Court, King County, entered judgment for the left-turning motorist and the plaintiff appealed. The Supreme Court held that the left-turning motorist who failed to see what was there to be seen on a straight level, arterial street, or if he saw it, failed as a matter of law to provide a fair margin of safety in entering and crossing three westbound lanes into eastbound lane was negligent and his actions were the proximate cause of the accident. The Court also held that where the record failed to show evidence of the plaintiff's unlawful speed or failure to maintain a proper lookout or react reasonably to sudden emergency, it was improper to submit such issues to the jury. Reversed and so ordered.

Patricelli v. Conquest, 65 Wn.2d 329, 396 P.2d 975 (Wash., December 3, 1964)

Action by guests in an automobile against the driver of another automobile for damages sustained when the two automobiles collided at an intersection. The Supreme Court, King County, rendered judgment for defendant and plaintiffs appealed. The Supreme Court held that where two county roads ran in a northerly direction forming an elongated "Y" with a median area in between and a stop sign situated approximately 180 feet south of the stop sign which had been posted at most effective place to warn motorists of the intersection, and since he failed to stop at the stop sign but traveled about 52 feet north of the stop sign before colliding with another automobile, he was negligent as a matter of law. Reversed and new trial granted, limited to question of damages.

Worthington v. Caldwell, 65 Wn.2d 269, 396 P.2d 797(Wash., November 19, 1964)

Action for injuries sustained in an automobile intersection accident. The Superior Court, King County, awarded additur1 to a verdict for the plaintiff, and the defendants declined the additur and appealed from an order granting plaintiff a new trial. The Supreme Court held that testimony by a physician that plaintiff had been awarded $4,000 damages for injuries sustained in prior automobile accident was irrelevant, and error in presenting this evidence may well have affected a jury's judgment as to extent of plaintiff's injuries, and where court gave numerous instructions as to liability may have affected the jury in deciding separate issues of damages and granting of new trial was not error. Affirmed.

Estes v. Bevan, 64 Wn.2d 869, 395 P.2d 44 (Wash., August 27, 1964)

Action for injuries suffered in an automobile collision. From a judgment of the Superior Court, King County, the defendant appealed requesting a new trial on the issue of damages only. The Supreme Court, held that evidence supported $10,000 general damages award where the trial court in resolving conflict in medical expert's testimony as to painful and permanent injuries received found that the plaintiff sustained painful injury to the left shoulder amounting to approximately 15% permanent partial disability thereof. Judgment affirmed.

Althoff v. System Garages, Inc., 59 Wn. 2d 860, 371 P.2d 48 (Wash., May 3, 1962)

Action against parking garage proprietor on account of theft of plaintiff's automobile from the garage. The Superior Court, King County rendered judgment for plaintiff and defendant appealed. The Supreme Court held that negligence, with respect to theft of the plaintiff's automobile from the defendant's parking garage, could be predicated on the defendant's failure to keep whole premises under surveillance. Judgment affirmed.

State v. Murphy, 56 Wn.2d 761, 355 P.2d 323, 83 A.L.R.2d 1061 (Wash., September 22, 1960)

Defendant was convicted of murder in the first degree. The King County Superior Court rendered judgment, and defendant appealed. The Supreme Court held that where the defendant was given tranquilizer pills by a medical trustee in jail, and it reasonably appeared that his attitude, appearance, and demeanor may have been influenced by drugs, and that he took them without awareness of their probable effect, the defendant was entitled to a new trial on theory that except for defendant's casual, cool, and somewhat lackadaisical attitude, appearance and demeanor induced by the drugs, the jury might not have imposed the death penalty. New trial granted.

State v. Collins, 55 Wn.2d 469, 348 P.2d 214 (Wash., January 14, 1960)

Defendant, who had killed pedestrian on crosswalk by means of a motor vehicle, was charged with negligent homicide. By leave of court, State was later allowed to amend information to charge violation of general manslaughter statute. Defendant demurred and moved to dismiss on ground that the negligent homicide statute was a preemptive statute and that all homicides by means of a motor vehicle must be charged thereunder. The State declined to amend charge again by alleging negligent homicide by means of motor vehicle. The King County Superior Court dismissed the information and State appealed. The Supreme Court held that under the equal protection clause of the Fourteenth Amendment, the defendant was required to be charged under the negligent homicide statute, which had been first passed by 1937 legislature and is special statute under which homicide by means of a motor vehicle can be charged, and the defendant could not be charged under the manslaughter statute, which is general statute and had been first passed in 1854. Affirmed.

(1) The power of a trial court to assess damages or increase amount of an inadequate award made by jury verdict, as condition of denial of motion for new trial, with consent of defendant whether or not plaintiff consents to such action.