                                                                     F I LED
                                                       1:,01,JE),T OF 11..i)",e,L5 DIV 1
                                                                  E OF WAWU I Ch

                                                        10113 NOV -5 AM 10: 514

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

EAN OZ SAGER,                     )
                                  )              DIVISION ONE
                   Appellant,     )
                                  )              No. 76879-4-1
               v.                 )
                                  )              UNPUBLISHED OPINION
SARA MENA,                        )
                                  )
                   Defendant,     )
                                  )
KISIRA N. HILL, and EDDIE B. HILL )
and JOANN HILL, Husband and Wife, )
                                  )
                   Respondents.   )              FILED: November 5, 2018
                                         )

       DWYER, J. — Following two separate automobile collisions, Ean Oz Sager
brought suit against two of the other drivers, Sara Mena and Kisira Hill, and was

awarded damages by a jury. Sager asserts that the trial court erred by excluding

photographic evidence of damage sustained to Hill's car. Sager contends that

the exclusion of the photographic evidence was an abuse of the trial court's

discretion and allowed Hill to mislead the jury, resulting in an unfair assignment

of damages as between the defendants. Finding no abuse of the trial court's

discretion, we affirm.

                                         1

       Sager was injured in two automobile collisions in the span of two days.

On September 27, 2012, Sager's vehicle was hit from behind by a vehicle driven

by defendant Kisira Hill while Sager's vehicle was stopped at a pedestrian
No. 76879-4/2


crossing (Collision #1).1 On September 29, Sager was involved in a more

serious collision (Collision #2). In the second incident, his vehicle was struck

from the side by a vehicle driven by defendant Sara Mena, pushing his vehicle

into oncoming traffic where it was hit head-on by another vehicle coming from the

opposite direction. In 2015, he sued Hill and Mena.

        The defendants in each collision admitted their negligence and that Sager

had been injured in the collisions. The jury's task was to decide the nature and

extent of Sager's injuries, whether he failed to mitigate his damages, if damages

could be apportioned between the two collisions, and, if so, to actually apportion

responsibility for damages between the defendants.

        In preparation for the argument of pretrial motions, Sager had numerous

exhibits marked for identification, including plaintiff's proposed Exhibits 6-20,

which were photographs of the damage sustained to the various vehicles

involved in the collisions. Plaintiffs proposed Exhibits 12-15 were photographs

of Hill's vehicle that showed damage to Hill's vehicle's hood, grille, and a

headlight.

        During argument on the motions in limine, both defendants objected to the

introduction of the photographs. The trial court acknowledged the relevance of

the photographs, but ruled against admitting any of them, reasoning that no party

planned to offer biomechanical expert witness testimony that would explain to the

jury how the damage to the vehicles showed the force of the impact of the



         I Sager sued Kisira Hill as well as the owners of the vehicle Kisira was driving, Eddie B.
Hill and Joann Hill. For convenience, unless the context indicates otherwise, "Hill" refers to Kisira
Hill.

                                                    - 2-
No. 76879-4/3


various collisions on Sager. The court explained that admitting the photographs

into evidence could lead the jury to engage in speculation about the

biomechanics of the collisions. Thus, the court ruled, the photographs' potential

to mislead the jury and prejudice the defendants rendered them more prejudicial

than probative under ER 403.

       The parties then agreed not to elicit testimony about damage to the

vehicles. However, the trial court did allow Sager to utilize diagrams of each

collision, created by the investigating officers, to help demonstrate how each

collision occurred.

       At trial, Hill was allowed to testify out of order and in the middle of Sager's

direct examination testimony. When asked to describe the collision in which she

had been involved, Hill stated, "I was distracted and when I looked up, the traffic

had stopped in front of me. I stepped on my brakes. Unable to stop in time, I

made contact with Mr. Sager's vehicle." In response to a question about whether

she spoke with Sager, Hill replied, "I did. After making contact with his car, we

pulled to the side." This choice of words did not promote an objection from

Sager, and Sager did not attempt to introduce the photographs at this time.

Sager did not opt to cross-examine Hill as to her choice of words.

       After counsel finished with Hill's direct and cross-examinations, but before

Hill was excused from the stand, three jurors submitted written questions

regarding the speed of her vehicle at the time of impact. In the resulting sidebar

conference concerning whether to ask Hill the jurors' questions regarding her

vehicle's speed, Sager's attorney argued that Hill's testimony had made an issue


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No. 76879-4/4


of the force of impact on the parties' vehicles, and that her answers to the jurors'

questions would open the door to the use of the vehicle damage photographs.

All defendants objected to asking Hill the questions posed by the jurors. The trial

court ruled that the likely prejudice from asking the questions outweighed their

probative value and declined to pose the jurors' questions to Hill. Given that the

questions were not asked, the trial court did not reach the issue of admitting the

photographs at this time.

       After Hill was excused, Sager's counsel continued with Sager's direct

examination. In this examination, counsel directly addressed Hill's testimony and

Sager provided a contrasting description of Collision #1. Sager testified that, as

a result of the impact, his "head hit the back of the headrest" and he "hit his chin."

When asked expressly how he would describe the impact in comparison to Hill's

"made contact" testimony, Sager testified, "it was pretty significant contact, but

not—not as bad as the second one."

       At the conclusion of Sager's testimony, a juror proposed a question

concerning the damage caused to Sager's vehicle in Collision #2. During the

resulting sidebar conference, Sager's attorney acknowledged the trial court's

initial bases for excluding the photographs—that, because there was no denial

that both collisions caused injuries, damages from each collision could be

determined by medical evidence. However, counsel argued that, given Hill's

"made contact" testimony and defense counsels' cross-examination of Sager,

both of which tended to minimize the impact of the first collision, Sager should be

allowed to introduce the photographs of the damage to Hill's vehicle and answer


                                             4
No. 76879-4/5


the juror's question about the damage sustained by his own vehicle in both

collisions.

       The trial court initially ruled that Sager could answer the juror's question

about damage to Sager's vehicle and testify as to the condition of his vehicle

after each collision, reasoning that the door had been opened, but did not allow

the admission of any of the photographs. To this Mena's counsel objected,

arguing that the question called for information relating to property damage that

was not at issue and that the door to questions about the damage sustained by

the various vehicles had not been opened—as Sager was essentially arguing

that testimony on the first collision had opened the door to a question about

vehicle damage in the second collision. Mena's attorney also argued that the

information sought by the juror's question would confuse the jury as to whether it

was to consider insurance or property damage.

       The trial court then revisited its ruling, declining to allow Sager to answer

the juror's question regarding damage to Sager's vehicle, while maintaining its

decision not to allow the admission of the photographs. In addition to the

reasons given in the pretrial hearing for excluding the photographs, the judge

now agreed with Mena's attorney that the possibility of juror confusion over

whether insurance or property damage was at issue also rendered the proffered

evidence more prejudicial than probative.

       In Hill's closing argument, Hill's counsel emphasized the comparative

mildness of Collision #1 as opposed to Collision #2.




                                             5
No. 76879-4/6


         Ultimately, the jury found that Sager had proved total damages of

$59,001.00. The jury then allocated $1,400.00 of damages to Hill from Collision

#1 and $57,601.00 of damages to Mena from Collision #2. The jury also found

that Sager failed to mitigate his damages in the amount of $6,250.00. Judgment

was entered on the verdict. The defendants were not assigned joint and several

liability.

        Sager timely appealed.2 After filing his notice of appeal, Sager settled his

case against defendant Mena. She is not a party to this appeal.

                                                  II



         This appeal concerns the decision of the trial court to exclude photographs

of damage to Hill's vehicle. Sager asserts that the exclusion of the photographic

evidence of the damage to Hill's vehicle resulted in the jury assigning to Hill too

few of the proved damages. Specifically, Sager argues that, in the absence of

photographic evidence of damage to Hill's vehicle, he was unable to demonstrate

the force of the collision to the jury. Thus, he asserts, Hill was allowed to

misrepresent the nature of Collision #1.3

         Sager first assigns error to the trial court's pretrial decision to exclude the

photographs of Hill's vehicle. Next, he contends that the trial court erred by


         2 Sager's argument on   appeal is concentrated on the disparity between the amount of
damages assigned to Hill, as opposed to those assigned to Mena. Prejudice was manifested,
Sager argues,"[b]ecause of the disproportionate verdict." Reply Br. of Appellant at 3. Sager
does not assign error to the trial court's instructions, nor does Sager invest any argument or
citations to the record that would support the view that the "total damages" amount found by the
jury was inadequate to fully compensate Sager. In the end, however, given that we find no error,
this matters not.
         3 Sager does not assign error to the trial court's decision not to ask the jurors' questions
regarding the speed of Hill's vehicle at the time of the collision.
                                                       6
No. 76879-4/7


continuing to exclude the photographs after Hill's testimony, notwithstanding the

minimizing language Hill used to describe the impact and the questions posed by

jurors that indicated a concern with the force of impact of the vehicles involved in

Collision #1. Finally, he avers that the trial court erred by declining to admit

these photographs at the conclusion of Sager's testimony for the purpose of

impeachment by contradiction, especially in light of an additional juror question

regarding vehicle damage. We hold that the trial court did not err in any of these

instances.

       To be admissible, evidence must be relevant. ER 402. Evidence is

relevant when it has any tendency to make the existence of any consequential

fact more probable or less probable than it would be without the evidence. ER

401. Facts that tend to establish a party's theory or disprove or rebut an

opponent's theory or evidence are relevant. Fenimore v. Donald M. Drake

Constr. Co., 87 Wn.2d 85, 89, 549 P.2d 483(1976). However, even when

relevant, evidence may nevertheless be excluded if its probative value is

substantially outweighed by the likelihood that it will mislead the jury or promote a

confusion of the issues. ER 403.

       The trial court has wide discretion in determining whether evidence will

mislead the jury. State v. Luvene, 127 Wn.2d 690, 707, 903 P.2d 960(1995).

Evidence that could lead the jury to engage in improper speculation is properly

characterized as evidence that may mislead the jury for purposes of applying ER

403. The decision to admit or exclude evidence is within the sound discretion of




                                              7
No. 76879-4/8


the trial court; we will not reverse such a decision absent a manifest abuse of that

discretion. State v. Iverson, 126 Wn. App. 329, 336, 108 P.3d 799(2005).

       A trial court abuses its discretion when 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)(citing In re

Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629(1993); In re Marriage of

Wicklund, 84 Wn. App. 763, 770 n.1, 932 P.2d 652(1996)). A court's decision is

manifestly unreasonable if it adopts a view that no reasonable person would

take, given the facts and applicable legal standard; it is based on untenable

grounds or reasons if the court applies the wrong standard or relies on

unsupported facts. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 669, 230 P.3d

583(2010).

       Sager rightfully cites to cases indicating that photographs of damage to

vehicles may be admitted to show the forces of impact on a person involved in a

collision, even when liability is not at issue and biomechanical expert testimony is

not available. See, e.g., Murray v. Mossman, 52 Wn.2d 885, 888, 329 P.2d 1089

(1958); Kramer v. Portland-Seattle Auto Freight, Inc., 43 Wn.2d 386, 389, 261

P.2d 692(1953); Taylor v. Spokane, Portland & Seattle Rv. Co., 72 Wash. 378,

379-80, 130 P. 506 (1913). Indeed, the trial court herein never disputed the

relevance of the photographs; rather, it exercised its discretion to determine that

the photographs' probative value was outweighed by the danger of prejudice.




                                             8
No. 76879-4/9




         The trial court first subjected the photographs in question to ER 403's

balancing test while resolving the pretrial motions. The court did not question the

relevance of the photographs but, rather, determined that, under ER 403, their

probative value was outweighed by the potential for prejudicial juror confusion or

speculation. The court reasoned that, in the absence of biomechanical expert

testimony, admission of the photographs could invite speculation from the jury as

to how damage to the vehicles shown in the photographs were manifested in the

injuries sustained to Sager's person.

         Sager argues that courts, as a general rule, allow photographic evidence

of vehicle damage because such photographs are relevant to determining

personal injury to a plaintiff inside a vehicle, even in the absence of expert

testimony. While many trial judges might have adopted Sager's view on the

matter, that is not dispositive. A trial court's evidentiary ruling constitutes an

abuse of discretion only when the ruling is one that no reasonable judge would

make. Sales, 168 Wn.2d at 669. We cannot say that no reasonable judge would

rule as the trial judge herein ruled. Nor can we say that all reasonable judges

would have ruled in accordance with Sager's desired ruling. Thus, no abuse of

discretion has been demonstrated. Sales, 168 Wn.2d at 669. There was no

error.



         Sager next claims that the trial court erred by not admitting the

photographs of damage to Hill's vehicle mid-trial, after Hill's testimony and the


                                               9
No. 76879-4/10


various juror questions. Sager argues that Hill's testimony, which minimized the

force of impact with which her car collided with Sager's, opened the door to

questions of vehicle speed and to the admission of photographic evidence of this

force.

         Once again, the trial court was required, pursuant to ER 403, to make a

determination as to whether admitting the photographs would invite unfair

prejudice. Moreover, the judge was plainly aware that Hill's testimony preceded

the conclusion of Sager's direct examination, allowing Sager the opportunity to

rebut Hill's statements through his own testimony. Indeed, Sager's attorney

questioned him regarding Hill's characterization of the collision, which afforded

Sager the opportunity to offer a contrasting description of the forces at work in

the collision.

         Sager argues that the photographs of Hill's vehicle would have conveyed

the force of the impact in a way that Sager was not able to do in words. This

speaks to the relevance of the photographs. But, again, the trial court never

ruled that the photographs were irrelevant. Instead, at this point of the trial also,

the trial judge relied on ER 403 in maintaining their exclusion. The judge

explained the court's reasons on the record. This was an exercise of the court's

discretion. To constitute an abuse of this discretion, the trial court's decision

would have had to adopt a view that no reasonable person would take. Salas,

168 Wn.2d at 669. We cannot say that the trial court's decision, pursuant to the

applicable facts and the ER 403 standard, meets this threshold. Thus, no abuse

of discretion is shown. There was no error.


                                           -10-
No. 76879-4/11




       Finally, Sager assigns error to the trial court's continued exclusion of the

photographs after they were offered to impeach Hill by contradiction.

Impeachment by contradiction is not to be confused with impeachment of a

witness by a prior inconsistent statement under ER 613. Rather, it is recognized

by our courts as a means to introduce rebuttal evidence contradicting a witness's

substantive testimony on a fact issue. Jacqueline's Wash., Inc. v. Mercantile

Stores Co., 80 Wn.2d 784, 788-89, 498 P.2d 870(1972). This evidence must be

independently competent and admissible for a purpose other than attacking the

witness's credibility. Jacqueline's Wash., 80 Wn.2d at 789. Admissibility of the

evidence is, however, still contingent on a trial court's evaluation of its probative

and prejudicial characteristics under ER 403. This evaluation, in turn, will not be

overturned on appeal absent a manifest abuse of discretion.

       Sager requested to introduce the photographs of Hill's vehicle after his

testimony in a sidebar conference concerning whether to allow Sager to answer

a juror's question concerning damage to Sager's vehicle after Collision #2. The

court stated that, in addition to the concerns with the photographs that it identified

at the pretrial conference, admitting them could invite jury speculation as to

whether property damage or insurance claims were at issue. The concern that

allowing both photographs of and descriptions of vehicle damage would lead to

juror confusion as to whether the jury was to consider property damages was, as

with the potential for speculation in the absence of biomechanical expert

testimony, a tenable reason for continuing to exclude the proffered evidence.
No. 76879-4/12


The court's reasoning was not based on an incorrect legal standard. Littlefield,

133 Wn.2d at 47.

       Sager had moved to admit the photographs of Hill's vehicle in response to

a juror question about the condition of Sager's vehicle after the second collision.

These photographs, in turn, showed only indirectly the forces that would have

acted on the plaintiff in the first collision. The relationship between the specific

juror question and the proffered photographs was attenuated at best. It was not

unreasonable for the trial judge to express concern about "open[ing] that

Pandora's box" of collateral issues, including insurance and property damage, by

admitting evidence of vehicle damage. Again, we cannot say that no reasonable

judge would arrive at this conclusion. Salas, 168 Wn.2d at 669. Thus, no abuse

of discretion is shown. There was no error.

       Affirmed.



We concur:




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