§51.7 Significant Authorities

• Jurisdiction: Washington

§51.7SIGNIFICANT AUTHORITIES

This section examines significant Washington case authority on jury instructions and jury deliberation.

(1)Sufficiency of instructions

The appellate courts have developed a three-part test to determine whether a trial court has correctly instructed the jury. As set out in Douglas v. Freeman, 117 Wn.2d 242, 256-57, 814 P.2d 1160 (1991), the court should address (1) whether the instructions permit the party to argue that party's theory of the case; (2) whether the instructions are misleading; and (3) whether the instructions, when read as a whole, properly inform the trier of fact of the applicable law. Although Douglas states that "no more is required," 117 Wn.2d at 257, a fourth requirement does in fact exist. The court will not give a jury instruction if there is no evidence to support it. Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996); see Hizey v. Carpenter, 119 Wn.2d 251, 270, 830 P.2d 646 (1992).

(2)Sufficiency of evidence

An issue that courts have yet to clearly analyze is the standard by which the evidence is to be judged. Logically, the removal of an issue from jury consideration by the refusal to instruct on that issue requires application of standards similar to directed verdicts. Courts now apply a substantial evidence test to this inquiry. In Stiley, the court cited Savage v. State, 127 Wn.2d 434, 448, 899 P.2d 1270 (1995), for the proposition that a "trial court is required to instruct the jury on a theory only where there is substantial evidence to support it." 130 Wn.2d at 498. The Savage court had cited Cooper's Mobile Homes, Inc. v. Simmons, 94 Wn.2d 321, 327, 617P.2d415 (1980). Tracking the cases even further back leads to the probable origin of the statement in a headnote in the case of Owens v. City of Seattle, 49 Wn.2d 187, 299P.2d560 (1956). The original standard was that the court must instruct if there is "any evidence to support the theory." Id. at 193 (emphasis added). In Owen, the official court headnote number seven refers to the fact that there was "substantial" evidence to support giving the jury instruction. The standard the court used, on the other hand, was an "any evidence" test:

Appellant was entitled to have its theory of the case presented to the jury by proper instructions, if there is any evidence to support the theory. Proposed instruction No. 7 is a correct statement of the law pertinent to appellant's theory of the case, which theory is supported by substantial evidence. The failure to give this instruction was therefore prejudicial error.

Id. (internal citation omitted); see also Lunz v. Neuman, 48 Wn.2d 26, 30, 290 P.2d 697 (1955); Allen v. Hart, 32 Wn.2d 173, 176, 201 P.2d 145 (1948).

The substantial evidence test continues to be applied in most cases. E.g., State v. Knutz,161Wn.App.395,403,253P.3d437(2011)(employing the substantial evidence test); Tuttle v. Allstate Ins. Co., 134 Wn.App. 120, 131, 138 P.3d 1107 (2006) (same). But see Kappelman v. Lutz, 141 Wn.App. 580, 588-89, 170P.3d1189 (2007), aff'd, 167 Wn.2d 1, 217P.3d286 (2009) (not employing substantial evidence test).

Practice Tip: As a practical matter, the "substantial evidence" test maybe so ingrained as the applicable standard that the trial judge will require that your case reach that threshold before granting a requested instruction. In close cases, however, it may be worth the time and effort to try to persuade the trial court that an instruction should be given if any evidence exists.

(3)Allows party to argue theory of case

Jury instructions must allow the parties to argue their theories of the case, must not mislead the jury and, when taken as a whole, must properly inform the jury of the law to be applied. Joyce v. Dep't of Corr, 155 Wn.2d 306, 324-25, 119P.3d825 (2005); State v. Barnes, 153 Wn.2d 378, 382, 103P.3d1219 (2005); Blaney v. Int'l Ass'n of Machinists & Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 210, 87P.3d757 (2004); Adcox v. Children's Ortho. Hosp. & Med. Ctr, 123 Wn.2d 15, 36, 864P.2d921 (1993). This standard allows significant flexibility. Generally, appellate courts will affirm a trial court's decision regarding jury instructions. As to issues regarding the number and specific wording of instructions, the reviewing court applies an abuse of discretion standard. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92 n.23, 896P.2d682 (1995).

In Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 661, 935P.2d555 (1997), the Supreme Court affirmed a decision in which the trial judge had given a general instruction regarding punitive damages but apparently declined to give the more specific statement of factors to consider supported by federal authority. The court concluded the general statement "adequately allowed each party to argue its theory of the case." Id. at 662.

A similar result was reached inBoeing Co. v. Harker-Lott, 93 Wn.App. 181, 187, 968 P.2d 14 (1998), review denied, 137 Wn.2d 1034 (1999), in which Division I of the Court of Appeals concluded that the party did not need a specific instruction telling the jury to give the testimony of attending physicians greater weight than other expert testimony. The court concluded that the general instruction on credibility was sufficient for the party to argue that theory.

In J...