       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KIMBERLY J. GERLACH,               )
                                   )               No. 77179-5-1
                   Respondent,     )
                                   )              DIVISION ONE
            v.                     )
                                   )
THE COVE APARTMENTS, LLC, a        )
Washington corporation; and WEIDNER)
PROPERTY MANAGEMENT, LLC, a )
Washington corporation,            )
                                   )
                   Appellants,     )              PUBLISHED OPINION
                                   )
            and                    )              FILED: March 18, 2019
                                   )
WEIDNER APARTMENT HOMES, a         )
Washington business entity, dba    )
The Cove Apartments, and WEIDNER )
ASSET MANAGEMENT LLC, a            )
Washington corporation,            )
                                   )
                   Defendants.     )
                                   )

       SMITH, J. — Kimberly Gerlach sued The Cove Apartments LLC and

Weidner Property Management LLC (collectively Cove) after she fell from a

second story apartment balcony with a rotted railing and suffered life threatening

injuries. Gerlach was extremely intoxicated at the time of the fall. At trial, Cove

sought to limit its liability by proving that Gerlach's intoxication was the proximate

cause of her damages and that she was more than 50 percent at fault, in

accordance with the affirmative defense of voluntary intoxication under
No. 77179-5-1/2

RCW 5.40.060(1). Because the trial court abused its discretion by excluding

evidence of Gerlach's blood alcohol level at the time of the accident and that

exclusion prejudiced Cove's ability to prove Gerlach's intoxication proximately

caused her injuries, we reverse and remand for a new trial.

                                      FACTS

        On October 26, 2012, Gerlach and her boyfriend Nathan Miller, along with

Colin and Brodie Lidde11,1 went to a birthday party and then to a bar within

walking distance of Miller's apartment. Miller lived in a second story unit at The

Cove Apartments in Federal Way, which were owned by The Cove Apartments

LLC and managed by Weider Property Management LLC. After the bar closed in

the early hours of October 27, Miller and Colin stopped by a convenience store to

buy beer, while Gerlach and Brodie returned to Miller's apartment. Brodie

stopped to smoke a cigarette before going inside. While he was smoking, he

heard a snap and turned in time to see Gerlach in midair, just before she landed

head-first on a concrete step on the ground floor. A rotted railing from Miller's

balcony also fell near Gerlach. Gerlach suffered a life threatening head injury as

a result of the fall.

        Gerlach sued Cove, alleging breach of contract, violations of the

Residential Landlord-Tenant Act of 1973(RLTA), chapter 59.18 RCW, and

negligence. The breach of contract claim was dismissed on summary judgment

because Gerlach was not a tenant and had no contractual relationship with Cove.




       1 Because Colin and Brodie Liddell have the same last name, this opinion
refers to each by his first name.
                                         2
No. 77179-5-1/3

       Although no one witnessed how Gerlach fell and Gerlach does not

remember the events of that night, her theory at trial was that the severely rotted

railing on Miller's balcony gave way while she was leaning on it, causing her to

fall to the ground. Relying on testimony from a biomechanical expert, Cove

proffered an alternative theory: that Gerlach did not have a key to the front door,

tried to enter the apartment via the balcony, and fell while trying to climb over the

balcony railing from the outside. This theory supported Cove's affirmative

defense under RCW 5.40.060(1) that Gerlach was intoxicated at the time of the

accident, her intoxication was a proximate cause of her injuries, and she was

more than 50 percent at fault. To this end, Cove attempted to introduce evidence

that Gerlach's blood alcohol concentration (BAC) at the time of the accident was

.238 and expert testimony on how a BAC of that level would affect a person's

judgment, psychomotor functions, and cognitive abilities. The trial court excluded

this evidence and testimony because it found they were more prejudicial than

probative. Instead, the trial court instructed the jury that Gerlach "was under the

influence of intoxicating liquor at the time of the accident."

       The jury found that Cove was negligent and that its negligence

proximately caused Gerlach's injuries. It also found that Gerlach was

contributorily negligent and seven percent at fault. The jury verdict was

$3,799,793.78, and the net award to Gerlach was $3,533,808.23.

       Cove appeals.




                                          3
No. 77179-5-1/4

                                      ANALYSIS

                    Exclusion of Gerlach's Blood Alcohol Level

       Cove argues that the trial court abused its discretion by excluding

evidence of Gerlach's blood alcohol level and that the exclusion was prejudicial.

We agree.

       We reverse a trial court's evidentiary rulings only upon a showing of abuse

of discretion. Subia v. Riveland, 104 Wn. App. 105, 113-14, 15 P.3d 658 (2001).

"A trial court abuses its discretion if its decision is manifestly unreasonable or

based on untenable grounds or untenable reasons." In re Marriage of Littlefield,

133 Wn.2d 39, 46-47, 940 P.2d 1362(1997). But an error does not require

reversal unless it is prejudicial, and "[e]rror will not be considered prejudicial

unless it affects, or presumptively affects, the outcome of the trial." Brown v.

Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571

(1983).

       "All relevant evidence is admissible unless its admissibility is otherwise

limited." Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 669, 230 P.3d 583(2010);

ER 402. "Evidence is relevant if it has 'any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence." Salas, 168 Wn.2d at

669 (quoting ER 401). ER 403 allows a trial court to exclude relevant evidence if

"its probative value is substantially outweighed by the danger of unfair prejudice

. . . ." "When evidence is likely to stimulate an emotional response rather than a

rational decision, a danger of unfair prejudice exists." Salas, 168 Wn.2d at 671.



                                          4
No. 77179-5-1/5

Where evidence is undeniably probative of a central issue in the case, the ability

of the danger of unfair prejudice to substantially outweigh the probative value of

the evidence is "'quite slim." Sisley v. Seattle Sch. Dist. No. 1, 171 Wn. App.

227, 232, 286 P.3d 974 (2012)(internal quotation marks omitted)(quoting

Carson v. Fine, 123 Wn.2d 206, 224, 867 P.2d 610 (1994)).

       Here, Cove asserted a voluntary intoxication defense against Gerlach.

This defense, codified as RCW 5.40.060(1), provides a complete defense to

Gerlach's action for personal injury if she was intoxicated, her intoxication was a

proximate cause of her injury, and she was more than 50 percent at fault.

RCW 5.40.060(1) states:

      [lit is a complete defense to an action for damages for personal
      injury or wrongful death that the person injured or killed was under
      the influence of intoxicating liquor or any drug at the time of the
      occurrence causing the injury or death and that such condition was
      a proximate cause of the injury or death and the trier of fact finds
      such person to have been more than fifty percent at fault.

       Before trial, Gerlach moved in limine to exclude evidence of a blood test

taken by the hospital less than an hour after the accident. The test showed that

her serum alcohol measurement was 252 mg/dL, which roughly translates to a

BAC of .238. After several hearings, the trial court granted Gerlach's motion

because Gerlach offered to stipulate to the jury that she was intoxicated at the

time of the accident. The court determined that if Gerlach admitted she was

intoxicated, evidence of her blood alcohol level was not necessary to establish a

defense under RCW 5.40.060(1). The fiat court explained that, under Peralta v.

State, 187 Wn.2d 888, 389 P.3d 596 (2017), an admission of intoxication was

sufficient to establish intoxication under RCW 5.40.060(1) and the admission of

                                         5
No. 77179-5-1/6

Gerlach's blood alcohol level would have been more prejudicial than probative

under ER 403. Because the trial court misapplied Peralta and ER 403, its

exclusion of the blood alcohol evidence was an abuse of discretion.

       ER 403 does not support the exclusion of the blood alcohol evidence.

Although evidence of Gerlach's blood alcohol level was irrelevant to establish

intoxication once she admitted that she was intoxicated, that evidence was still

relevant to prove the extent to which her intoxication proximately caused her

injuries. To that end, Cove was prepared to offer expert testimony that a

person's physical and cognitive limitations at a BAC of .238 make it less likely

that she could safely stand on a balcony or climb over a railing. Although

Gerlach's high blood alcohol level could stimulate an emotional response in a

jury, it is not so prejudicial that its probative value is outweighed. Because

Gerlach's percentage of fault was reserved for the jury, the jury should have

been able to consider Gerlach's level of intoxication and how it may have

affected her physical and cognitive abilities. Geschwind v. Flanagan, 121 Wn.2d

833, 837-38, 854 P.2d 1061 (1993)(the determination of the percentage of total

fault attributable to each party is specifically reserved for the trier of fact).

       Furthermore, the trial court's error in excluding the blood alcohol evidence

affected the outcome of the trial. Because of the error, Cove did not have the

opportunity to present evidence on a key factual issue: whether Gerlach was

predominantly liable for her injuries due to her level of intoxication. See

Geschwind, 121 Wn.2d at 839 ("[W]hen a person has voluntarily engaged in

behavior which increases the risk of injury, he or she may be held to be



                                            6
No. 77179-5-1/7

predominantly liable for the injuries occurring as a result thereof."). Therefore,

the error was not harmless.

       Additionally, the trial court's reliance on Peralta was misplaced. In

Peralta, a Washington State Patrol car hit Deborah Peralta after she walked

directly into the street and in front of the car. Peralta, 187 Wn.2d at 892. Peralta

sued the State for damages, and the State raised the voluntary intoxication

defense in its answer. Peralta, 187 Wn.2d at 892. During discovery, the State

sent Peralta a request to admit or deny that at the time of the collision, she "'was

under the influence of intoxicating liquors." Peralta, 187 Wn.2d at 893. Peralta

admitted without qualification that she was. Peralta, 187 Wn.2d at 893. Based

on this admission, the trial court concluded as a matter of law that the first

element of RCW 5.40.060(1) was met and it excluded Peralta's evidence that

she did not appear intoxicated before the accident. Peralta, 187 Wn.2d at 893-

94. The Supreme Court held that Peralta's admission was clearly an admission

of intoxication under RCW 5.40.060(1). Peralta, 187 Wn.2d at 899. It also held

that if she did not intend to admit "intoxication" as that term is statutorily defined

(i.e., having a BAC greater than .08 or being unable to drive a motor vehicle),

Peralta was required to clarify her admission to reflect that distinction. Peralta,

187 Wn.2d at 904-05. Because it was not relevant to the issues on appeal, the

court did not address whether Peralta's level of intoxication contributed to the

jury's finding that her intoxication was a proximate cause of her injuries or its

finding that she was more than 50 percent at fault. But the Supreme Court did

note that there was ample evidence to support the State's voluntary intoxication



                                           7
No. 77179-5-1/8

defense, meaning there was evidence, other than Peralta's admission, of her

intoxication presented at trial. Peralta, 187 Wn.2d at 900 n.6. Here, by contrast,

the exclusion of Gerlach's blood alcohol evidence resulted in a complete

absence of evidence as to the extent of her intoxication. For this reason, Peralta

does not support the trial court's decision to exclude Gerlach's blood alcohol

level.

         Gerlach argues that even if the trial court erred in excluding the blood

alcohol evidence, the error did not prejudice Cove because Cove "extensively

examined Gerlach's companions concerning the extent and degree of their

alcohol consumption before returning to the Cove." The record does not support

this contention. None of Gerlach's companions testified as to how many drinks

Gerlach consumed that night or that she was extremely intoxicated. For

example, Brodie testified that Gerlach was drinking that night but that he could

not remember what she had to drink. Colin testified that they all "had a drink" at

the birthday party and shared a pitcher of beer at the bar and that based on his

own observations, he had no reason to believe Gerlach was impaired that night.

Finally, Miller testified that he couldn't remember Gerlach drinking but "would

guess that she was." The lack of evidence of Gerlach's degree of intoxication

prejudiced Cove's ability to prove its affirmative defense.

         Alternatively, Gerlach argues that evidence of her blood alcohol level was

properly excluded because there was no evidence that the required standards

were met. This argument is not persuasive.




                                           8
No. 77179-5-1/9

       RCW 5.40.060(1) provides that for purposes of the voluntary intoxication

defense,

       [t]he standard for determining whether a person was under the
       influence of intoxicating liquor or drugs shall be the same standard
       established for criminal convictions under RCW 46.61.502, and
       evidence that a person was under the influence of intoxicating
       liquor or drugs under the standard established by RCW 46.61.502
       shall be conclusive proof that such person was under the influence
       of intoxicating liquor or drugs.

RCW 46.61.502 states:

      (1) A person is guilty of driving while under the influence of
      intoxicating liquor, marijuana, or any drug if the person drives a
      vehicle within this state:
             (a) And the person has, within two hours after driving, an
      alcohol concentration of 0.08 or higher as shown by analysis of the
      person's breath or blood made under RCW 46.61.506; or

              (c) While the person is under the influence of or affected by
       intoxicating liquor, marijuana, or any drug; or
              (d) While the person is under the combined influence of or
       affected by intoxicating liquor, marijuana, and any drug.

Notably, only subsection (1)(a) of RCW 46.61.502, which sets forth the standard

for "per se" intoxication, refers to specific testing standards that must be met for a

person's measured level of intoxication to be used against him or her at trial.

These testing standards, which are set forth in RCW 46.61.506, need not be met

to show that someone is intoxicated under a non-per-se method such as that

described in subsection (1)(c) of RCW 46.61.502. State v. Donahue, 105 Wn.

App. 67, 76-77, 18 P.3d 608(2001)(holding that evidence of intoxication from an

Oregon hospital blood alcohol test that did not comply with RCW 46.61.506

standards was admissible to prove a non-per-se offense under RCW 46.61.502).




                                          9
No. 77179-5-1/10

       At trial, Cove specifically argued that Gerlach's blood alcohol evidence

could be proved using the non-per-se method under RCW 46.61.502(1)(c).

Because the blood alcohol evidence in this case could be evidence of intoxication

under that non-per-se method, the test used need not comply with the

requirements of RCW 46.61.506 to be admissible. This was not a proper basis

for excluding the evidence.

       Because the trial court abused its discretion in excluding the evidence of

Gerlach's blood alcohol level at the time of the accident and the exclusion

prejudiced Cove's ability to prove its affirmative defense of voluntary intoxication,

reversal is required. We address the following issues, also raised on appeal,

because they are likely to arise again on remand.

                                 Expert Testimony

       Cove argues that the trial court abused its discretion by limiting the

testimony of Cove's experts, Dr. Frank Vincenzi, Dr. Michael Carhart, and Dr.

Thomas Wickizer. We agree that the trial court erred in limiting Dr. Vincenzi's

testimony but disagree as to the testimony of Dr. Carhart and Dr. Wickizer.

       "Generally, expert testimony is admissible if(1) the expert is qualified,(2)

the expert relies on generally accepted theories in the scientific community, and

(3) the testimony would be helpful to the trier of fact." Johnston-Forbes v.

Matsunaga, 181 Wn.2d 346, 352, 333 P.3d 388 (2014). "When applying this test,

trial courts are afforded wide discretion, and trial court expert opinion decisions

will not be disturbed on appeal absent an abuse of such discretion." Johnston-

Forbes, 181 Wn.2d at 355.


                                         10
No. 77179-5-1/11

       If a witness does not have the specialized training or experience

necessary to draw the inference offered, the opinion lacks a proper foundation

and is inadmissible under ER 702. Simmons v. City of Othello, 199 Wn. App.

384, 392-93, 399 P.3d 546 (2017). Accordingly, even if an expert witness is

qualified, testimony from that witness is not admissible if the issue lies outside

the witness's area of expertise. Simmons, 199 Wn. App. at 392. "Where there

is no basis for the expert opinion other than theoretical speculation, the expert

testimony should be excluded." Simmons, 199 Wn. App. at 393(quoting Queen

City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wn.2d 50, 103, 891 P.2d

718 (1995)).

                                    Dr. Vincenzi

       On appeal, the parties do not dispute that Dr. Vincenzi was a qualified

expert as to the effects of alcohol upon the human body. Dr. Vincenzi completed

an analysis that included a conversion of Gerlach's serum alcohol measurement

of 252 mg/dL at the hospital to the more commonly used BAC number of .238 at

the time of the accident. He also testified in an offer of proof as to the effect of

the consumption of alcohol on a person based on his or her blood alcohol level.

He opined that a person with a BAC of .200 or higher would experience severe

psychomotor impairment.

       The trial court excluded Dr. Vincenzi's testimony at the same time that it

erroneously excluded the evidence of Gerlach's blood alcohol level. Dr.

Vincenzi's testimony would have been helpful to the jury in understanding the

effects of intoxication on a person with a high blood alcohol level. To the extent



                                          11
No. 77179-5-1/12

that the trial court excluded Dr. Vincenzi's testimony based on its erroneous

ruling on Gerlach's blood alcohol level, that exclusion was in error.

       Gerlach argues that Dr. Vincenzi's testimony was speculative and without

foundation because it was based on the hospital blood test that did not comply

with the testing standards of RCW 46.61.506. As explained in the previous

section, those testing standards do not bar admission. Therefore, this argument

is not persuasive.

       Gerlach also argues that Dr. Vincenzi's testimony was properly excluded

based on Purchase v. Meyer, 108 Wn.2d 220, 737 P.2d 661 (1987), because

evidence of how alcohol affected a person's behavior cannot be based on a

blood alcohol test alone. But Purchase was a dramshop liability case and is

distinguishable. To find an establishment liable for over-serving alcohol under a

dramshop theory, a plaintiff must prove that a server furnished intoxicating

beverages to an obviously intoxicated person. Purchase, 108 Wn.2d at 225. In

Purchase, the relevant issue was whether or not it was obvious to a server that

the person being served was intoxicated. Purchase, 108 Wn.2d at 227. The

court held that evidence of a person's blood alcohol level alone could not support

a finding that a person was "obviously intoxicated" because people can exhibit

the effects of intoxication differently. Purchase, 108 Wn.2d at 225-27.

      This is not a dramshop liability case, and here, there is no requirement

that Cove prove Gerlach's intoxication was obvious to others. Rather, the issue

in this case is the extent to which Gerlach's extreme intoxication contributed to

her injuries. Therefore, Purchase does not control.


                                        12
No. 77179-5-1/13

       Finally, Gerlach argues that Dr. Vincenzi's testimony was properly

excluded because testimony explaining that alcohol impairs a person's judgment

is a matter of common knowledge understood by the average juror and,

therefore, not helpful. But, Dr. Vincenzi's testimony was not limited to this basic

fact. He explained that a person with a blood alcohol level of .200 or above will

have a decrease in inhibitions, psychomotor impairment, and cognitive

impairment. He also opined that "[p]sychomotor impairment really starts at levels

of .05 (unintelligible), about .05 to .06 or thereabouts and gets worse and worse,

more and more impairment, and severe impairment in essentially everyone at

levels of[.1200 or above." Dr. Vincenzi's opinion on how a person's physical and

cognitive abilities are affected by his or her BAC would have been helpful to the

jury and should have been admitted.

                                    Dr. Carhart

      The trial court did not err in limiting Dr. Carhart's testimony. Dr. Carhart is

an expert "in the biomechanics of human injury and accident reconstruction,

specializing in the areas of musculoskeletal dynamics, occupant dynamics,

human injury tolerance, vehicular rollover, and occupant-to-glazing interaction."

Dr. Carhart was prepared to testify that Gerlach's intoxication would have caused

her to have "diminished stability, psychomotor functioning, reaction time

performance, and ability to manage complex motor tasks, such as trying to

maneuver over a railing." He based this opinion on two studies that he cited as

authoritative sources. But Dr. Carhart is not an expert in how alcohol affects the




                                        13
No. 77179-5-1/14

human body, and his testimony on this issue would have been speculative.

Therefore, the trial court properly excluded Dr. Carhart's testimony on this issue.

                                    Dr. Wickizer

      The trial court also did not abuse its discretion by excluding Dr. Wickizer's

expert testimony on the reasonable value of Gerlach's medical expenses.

      A plaintiff"may recover only the reasonable value of medical services

received, not the total of all bills paid." Patterson v. Horton, 84 Wn. App. 531,

543, 929 P.2d 1125 (1997). "Thus, the plaintiff must prove that medical costs

were reasonable and, in doing so, cannot rely solely on medical records and

bills." Patterson, 84 Wn. App. at 543. "In other words, medical records and bills

are relevant to prove past medical expenses only if supported by additional

evidence that the treatment and the bills were both necessary and reasonable."

Patterson, 84 Wn. App. at 543.

       Here, Cove intended to call Dr. Wickizer, a health economist, as an expert

witness to testify about the medical billing process and provide a comparative

analysis of the cost of medical services. Specifically, Dr. Wickizer authored an

analysis on the reasonableness of Gerlach's medical expenses, in which he

explained that billing for the same procedures can vary greatly from hospital to

hospital and the billed amount is not necessarily reasonable. In the analysis, he

recalculated the "reasonable value" of all of Gerlach's medical expenses by

applying a cost-to-charge ratio from the hospital's Federal Cost Report to each

hospital inpatient charge. The Federal Cost Reports are compiled by the federal

government and include cost and revenue information for all patients receiving


                                        14
 No. 77179-5-1/15

 care at that hospital. Additionally, Dr. Wickizer estimated the reasonable value of

 Gerlach's physician charges by applying the physician's agreed Medicare

 reimbursement rate to each physician charge. Cove intended this testimony to

• assist the jury in evaluating the reasonableness of Gerlach's medical bills.

        The trial court properly excluded Dr. Wickizer's testimony. Evidence of

 what Gerlach's physicians accept from Medicaid and how the inpatient charges

 are affected by Dr. Wickizer's cost-to-charge ratio is not proof that Gerlach's

 medical expenses were unreasonable. In Hayes v. Wieber Enterprises, Inc., 105

 Wn. App. 611, 616, 20 P.3d 496 (2001), the Court of Appeals held that the trial

 court did not abuse its discretion in refusing to admit evidence of the amount a

 plaintiff's doctor actually accepted as payment from the insurance company to

 refute the reasonableness of the billed medical expenses. It reasoned that "[t]he

 fact that the doctor accepted the first party insurance carrier's limit for his

 services does not tend to prove his charge for these services was unreasonable."

 Haves, 105 Wn. App. at 616.

        The same is true here. Evidence that, on average, a procedure costs less

 than the amount charged or that Gerlach's physicians accept a lesser payment

 for services from Medicare is not helpful to the jury in determining whether her

 medical expenses were reasonable. Furthermore, Gerlach met her burden to

 prove the reasonableness of her medical expenses under Patterson because she

 presented expert testimony other than the medical records and bills themselves.

 Dr. Lowell Finkleman testified that the medical treatment Gerlach received and

 the resulting charges were reasonable and customary for this community and



                                           15
No. 77179-5-1/16

consistent with charges he had seen over the years. Therefore, the trial court did

not abuse its discretion by refusing to allow Dr. Wickizer to testify.

       Cove argues that Hayes is distinguishable because Dr. Wickizer was not

testifying on what was charged versus what was paid. We disagree. Although it

is not clear from Dr. Wickizer's analysis whether the revenue figure used in the

cost-to-charge ratios reflects the amounts billed or the amounts ultimately

received for inpatient services, Dr. Wickizer's analysis of Gerlach's physician

charges was based on the physicians' agreed Medicare reimbursement rate.

Therefore, the court did not abuse its discretion in refusing to allow Dr. Wickizer

to testify as to his analysis.

                         Instruction on Voluntary Intoxication
       Cove argues that the trial court erred by failing to give Cove's proposed

jury instruction on its voluntary intoxication defense, which closely followed the

pattern instruction. We disagree.

       Jury instructions are sufficient when they allow a party to argue their

theory of the case, are not misleading and, when read as a whole, properly

inform the jury of the applicable law. Bodin v. City of Stanwood, 130 Wn.2d 726,

732, 927 P.2d 240 (1996). As long as these conditions are met, the trial court

may refuse to give augmenting instructions or instructions that are cumulative,

collateral, or repetitive. Bodin, 130 Wn.2d at 732; Havens v. C&D Plastics, Inc.,

124 Wn.2d 158, 165-66, 876 P.2d 435 (1994). "The pattern [jury] instructions

are not authoritative primary sources of the law' and are not binding on trial

courts." Univ. of Wash. v. Gov't Emps. Ins. Co., 200 Wn. App. 455, 475, 404



                                          16
No. 77179-5-1/17

P.3d 559(2017)(alteration in original)(quoting 6 WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 0.10, at 3(6th ed. 2012)).

       Whether a jury instruction reflects an accurate statement of law is

reviewed de novo. Joyce v. Dep't of Corrs., 155 Wn.2d 306, 323, 119 P.3d 825

(2005). But "'[t]he number and specific language of the instructions are matters

left to the trial court's discretion." Leeper v. Dep't of Labor & Indus., 123 Wn.2d

803, 809, 872 P.2d 507(1994)(quoting Douglas v. Freeman, 117 Wn.2d 242,

256, 814 P.2d 1160 (1991)).

       The pattern instruction for the voluntary intoxication defense under RCW

5.40.060(1) states:

              It is a defense to an action for damages for [personal
      injuries][wrongful death] that the [person injured][person killed]
      was then under the influence of [alcohol][or][any drug], that this
      condition was a proximate cause of the [injury][death], and that the
      [person injured][person killed] was more than fifty percent at fault.

6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 16.03,

at 213(6th ed. 2012)(WPI). This instruction is an accurate statement of the law.

       Here, the trial court instructed the jury that

             [a] person who becomes voluntarily intoxicated is held to the
      same standard of care as one who is not so affected. The
      intoxication of the plaintiff at the time of the occurrence may be
      considered by the jury, together with all the other facts and
      circumstances, in determining whether that person was negligent.

The court also instructed on contributory negligence:

             If you find contributory negligence, you must determine the
      degree of negligence, expressed as a percentage, attributable to
      the person claiming injury or damage. The court will furnish you a
      special verdict form for this purpose. Your answers to the
      questions in the special verdict form will furnish the basis by which
      the court will apportion damages, if any.


                                          17
No. 77179-5-1/18

Cove did not object to either of these instructions. But Cove did object to the trial

court's failure to give its proposed instruction on the voluntary intoxication

defense, which closely followed WPI 16.03.

       Although the instructions given by the trial court were not an inaccurate

statement of the law, they were not particularly clear. To establish its voluntary

intoxication defense, Cove was required to prove that (1) Gerlach was under the

influence of intoxicating liquor,(2) her condition was a proximate cause of her

injury, and (3)she was more than 50 percent at fault. RCW 5.40.060(1).

Instructions 20 and 21, as given, allowed Cove to argue its voluntary intoxication

defense. The jury was already instructed that Gerlach was "under the influence

of intoxicating liquor at the time of the accident," satisfying the first requirement.

Instruction 20 instructed the jury to consider whether Gerlach was negligent as a

result of that intoxication, satisfying the second requirement of the defense. And,

instruction 21 instructed the jury to determine the percentage of fault attributable

to Gerlach, satisfying the third requirement. Given these instructions, Cove was

able to argue that Gerlach's intoxication was a proximate cause of her accident

and that she was more than 50 percent at fault. .But, WPI 16.03 contains a more

succinct statement of the elements of the voluntary intoxication defense, and

while the trial court did not abuse its discretion by giving instructions 20 and 21,

WPI 16.03 is a more appropriate instruction and should be used on remand.

                      Cove's Duty to Gerlach under the RLTA
       Cove argues that because Gerlach was not Cove's tenant, the trial court

erred in instructing the jury that Cove owed a duty to Gerlach based on the

RLTA. We agree.

                                          18
No. 77179-5-1/19

       In a negligence case, the plaintiff must prove duty, breach, causation, and

damages. Nivens v. 7-11 Hoagv's Corner, 133 Wn.2d 192, 198, 943 P.2d 286

(1997). Whether an actionable duty was owed to a plaintiff is a threshold

determination and a question of law that this court reviews de novo. Munich v.

Skagit Emergency Commc'n Ctr., 175 Wn.2d 871, 877, 288 P.3d 328 (2012).

       Under the RLTA, landlords have an implied warranty of habitability to

tenants. See RCW 59.18.060; Foisy v. Wyman,83 Wn.2d 22, 28, 515 P.2d 160

(1973). This duty to keep the premises in habitable condition provides tenants

with a negligence cause of action against landlords who fail to do so. See Lian v.

Stalick, 106 Wn. App. 811, 818, 25 P.3d 467(2001). But Restatement(Second)

of Property § 17.6 (1977) states:

              A landlord is subject to liability for physical harm caused to
      the tenant and others upon the leased property with the consent of
      the tenant or his subtenant by a dangerous condition existing
      before or arising after the tenant has taken possession, if he has
      failed to exercise reasonable care to repair the condition and the
      existence of the condition is in violation of:
             (1) an implied warranty of habitability; or
             (2) a duty created by statute or administrative regulation.

(Emphasis added.) Arguably, the language of section 17.6 permits a tenant's

guest to recover from a landlord directly for breach of an implied warranty of

habitability, a statute, or a regulation. But, we recently held that Washington has

only adopted section 17.6 in cases where a landlord's negligence is alleged by a

tenant and that the section has not been adopted in the context of claims by

nontenants. Phillips v. Greco,      Wn. App. 2d   ,433 P.3d 509, 511 (2019).

Therefore, Gerlach cannot base any duty owed by Cove upon section 17.6.




                                        19
No. 77179-5-1/20

       Here, Gerlach sued Cove for negligence, claiming it breached its implied

and statutory warranty of habitability to Gerlach by failing to repair the rotted

railing. Cove moved for partial summary judgment, arguing that Gerlach's

negligence claim could not proceed because Gerlach was not a tenant and the

implied and statutory warranty of habitability only applies to tenants under the

RLTA. The trial court denied Cove's motion for summary judgment and

instructed the jury on a landlord's duties under the RLTA. Because no

Washington law has extended section 17.6 to apply to nontenants, the trial court

erred by denying Cove's motion for summary judgment on this cause of action

and instructing the jury that Cove could be liable to Gerlach for a violation of the

RLTA. We hold that this cause of action cannot go forward on remand.

       We reverse the jury verdict in favor of Gerlach and remand for retrial of

Gerlach's negligence action against Cove.




WE CONCUR:



..-AtifIALL/Ji        •




                                         20
