       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                                              O       wo
VICTORY LONNQUIST, an individual,                                                     ~—4 f—


                                              )   No. 73569-1-1
                     Respondent,                                             en


                                              )   DIVISION ONE               en    -E---V-
              v.


                                              \                              O
PATRICK M. KIBE, and "JANE DOE"
KIBE, husband and wife, both individually                                          GO—
                                                                                  3Z'<

and on behalf of their marital community      )   UNPUBLISHED OPINION
composed thereof,
                                              )   FILED: August 15,   2016
                     Appellants.


       Becker, J. — In this personal injury action arising from a highway collision,

the jury found the defendant was not negligent but also found that his "actions"

caused the collision. The trial court concluded that these findings were

inconsistent and granted the plaintiff's motion for a new trial. We reverse and

remand for entry of a defense verdict. The plaintiff invited any error by proposing

the confusingly worded verdict form, and in any event, a driver can cause a

collision without being negligent.

       Victory Lonnquist and Patrick Kibe were both traveling on Highway 18 in

rainy weather on the night of the collision in September 2010. The speed limit

was 60 miles per hour. Lonnquist was in the left-hand eastbound lane; Kibe was

in the right-hand eastbound lane. The right front side of Lonnquist's sport utility
No. 73569-1-1/2



vehicle collided with the left front side of Kibe's sedan. An ambulance came and

took Lonnquist to an emergency room. She was released several hours later.

       Lonnquist sued Kibe for negligence. At trial, Lonnquist testified that Kibe

flew past her on the right and slammed on his brakes when he neared a disabled

vehicle that was parked on a gore point where an on-ramp joined the highway.

According to Lonnquist, Kibe was approximately six to eight car lengths ahead of

her when his car began to fishtail and spin. She testified that Kibe spun into her

lane and "everything went black."

       Kibe testified that because it was raining, he was driving approximately 45

miles per hour and with the flow of traffic in his lane. According to Kibe, his car

was not in the lane in which Lonnquist was traveling when the collision occurred.

He testified that his car swung into the lane in which Lonnquist was traveling only

after she collided with him.

       A Washington State Patrol Trooper who responded to the 911 call offered

the opinion that Kibe "caused" the accident by crossing into the lane in which

Lonnquist was traveling. An accident reconstruction expert who testified in the

plaintiff's case similarly concluded, based on observation of the point of impact

on each vehicle, that Kibe "came in front of" Lonnquist rather than Lonnquist

"turning into" Kibe. Another expert witness testified on behalf of the defense that

there was insufficient information to establish who lost control. None of the

expert witnesses could determine the speed at which either vehicle was

travelling, except to say that the deployment of Lonnquist's air bags meant that at
No. 73569-1-1/3



the point of impact, one of them must have been going at least 15 miles per hour

faster than the other.

       At closing, Lonnquist argued that the evidence showed she was overtaken

by Kibe who lost control of his vehicle, fishtailed into her lane, and caused the

crash. She asked the jury to award damages between $200,000 and $350,000.

Kibe argued that the evidence showed he was driving safely and did not cause

the accident. He suggested that ifthe jury awarded any damages at all, $30,000

was an appropriate award for an accident that caused no serious injuries.

       The jury was given a set of instructions defining negligence, ordinary care,

proximate cause, and damages according to standard pattern instructions. The

verdict form, however, was nonstandard. A proper verdict form would have asked

the jury to decide whether Kibe was negligent and, if so, whether his negligence

was the proximate cause of damage to Lonnquist. See 6 Washington Practice:

Washington Pattern Jury Instructions: Civil 45.21, at 422-24 (6th ed. 2012)

(WPI); 6 WPI 45.24, at 435-36. Instead, the verdict form elicited the jury's

response that Kibe and his "actions" caused the collision and the injuries—but

also that he was not negligent. The jury found that Lonnquist's damages totaled

$16,009.

              We, the jury, give the following answers to the questions
       submitted by the Court:

       1. Did defendant Kibe cause the collision with Plaintiff Lonnquist's
           vehicle?
                                      Yes _X_             No
       2. Was defendant Kibe negligent?
                                          Yes             No   X
No. 73569-1-1/4



         3. Did the actions of Defendant Kibe proximately cause Plaintiff
            Lonnquist's injuries?
                                          Yes J<_        No

         Ifyou answered "no" to Questions 1, 2, and 3, do not answer
         Question No. 4. Rather sign and return this form.

         Ifyou answered "yes" to Questions 1, 2, and 3, please answer
         Question 4.

         4. What are plaintiff Victory Lonnquist's damages for the following?

                Lost Past Medical Expenses        $      8765
                Future Medical Expenses           $      4030
                Physical Injuries to Date         $         0
                Physical Future Injuries          $         0
                Past Emotional Distress            $     3214
                Future Emotional Distress          $         0

         Kibe moved for entry of judgment for the defense. He took the position

that the jury's answers amounted to a defense verdict because of the finding of

no negligence. Lonnquist moved for a new trial. She took the position that the

verdict form was "inherently inconsistent and cannot reasonably be interpreted

one way or the other." The trial court ordered a new trial. Kibe appeals from that

order.

         An order granting or denying a new trial is not to be reversed except for an

abuse of discretion. This principle is subject to the limitation that, to the extent

such an order is predicated upon rulings as to the law, such as those involving

the correctness of an instruction, no element of discretion is involved. A much

stronger showing of an abuse of discretion will ordinarily be required to set aside

an order granting a new trial than one denying a new trial. Lvster v. Metzqer, 68

Wn.2d 216, 220, 412 P.2d 340 (1966).
No. 73569-1-1/5



       Initially, Lonnquist claims Kibe's appeal is barred by the doctrine of invited

error. She argues that because Kibe did not object to the confusing special

verdict form, he invited any error flowing from its use.

       The invited error doctrine prohibits a party from setting up an error at trial

and then complaining of it through a motion for new trial or on appeal. Sdorra v.

Dickinson, 80 Wn. App. 695, 702-03, 910 P.2d 1328 (1996); Nania v. Pac. Nw.

Bell Tel. Co., 60 Wn. App. 706, 709, 806 P.2d 787 (1991).

       In Nania, a jury determined a telephone company was negligent and that

the company's negligence proximately caused the plaintiff's injuries. The

company moved for a new trial, arguing that special verdict responses regarding

the comparative fault of the plaintiff and a codefendant could not be reconciled

with other answers on the form. The trial court denied the motion for a new trial

and entered judgment for the plaintiff on the basis that the company had invited

error by its approval of the verdict form. Nania, 60 Wn. App. at 709-10. This

court affirmed.

       Kibe did not propose the special verdict form, and he has not assigned

error to it; rather, he has assigned error to the order granting a new trial.

Because Kibe objected to the order granting a new trial, it cannot be said that he

invited the error he now complains of.

       The court granted a new trial on the basis of Lonnquist's argument that the

jury's answers were inconsistent. But it was Lonnquist who proposed the

nonstandard verdict form—causation first, negligence second—that practically

guaranteed confusion. The form became further muddled by the directions that
No. 73569-1-1/6



assumed the jury had to give the same answer—yes or no—to questions 1, 2,

and 3. Thus, it is Lonnquist who set up the error in the trial court and then

complained of it through her motion for a new trial. With a standard verdict form,

the first question would have elicited the jury's finding of no negligence, the jury

would not have proceeded to answer questions about causation or damages,

and this dispute would not have arisen. The trial court abused its discretion by

failing to recognize that Lonnquist invited error.

       The trial court also erred in its determination that "the jury's answers to the

questions on the special verdict form are irreconcilable with the special verdict

form itself and the court's instructions to the jury." When reviewing a verdict that

appears to be inconsistent, a court must grant a new trial if contradictory answers

to interrogatories make the jury's resolution of the ultimate issue impossible to

determine. But when engaging in this type of analysis, a court must reconcile the

jury's answers if possible and cannot substitute its own judgment for the

judgment of the jury. Estate of Stalkup v. Vancouver Clinic. Inc., P.S., 145 Wn.

App. 572, 586, 187 P.3d 291 (2008).

       The trial court acknowledged that it is not logically inconsistent to find

proximate cause but no negligence. The court reasoned, however, that the

factual issue for the jury was "who ran into who." The court recalled the

testimony by the expert defense witness who answered "yes" when asked: "If Mr.

Kibe . . . lost control, he was the primary cause of the crash, correct?" Based on

this testimony, the court concluded that the jury could not have found Kibe
No. 73569-1-1/7



caused the collision without also finding that Kibe was negligent, thus the finding

of no negligence was inconsistent with the findings of causation.

       The problem with the trial court's analysis is that the jury did not find that

Kibe's negligence caused Lonnquist's damages. The jury found only that Kibe

caused the collision and that his "actions" proximately caused Lonnquist's

injuries. These two findings are not inconsistent with the finding that Kibe was

not negligent. "The essential elements of actionable negligence are: (1) the

existence of a duty owed to the complaining party; (2) a breach thereof; (3) a

resulting injury; and (4) a proximate cause between the claimed breach and

resulting injury." Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984)

(emphasis added). A finding of causation is significant only if it connects the

injury to a defendant's negligence. Here, the jury found that Kibe was not

negligent.

       The finding that Kibe's actions proximately caused Lonnquist's injury does

not demonstrate irreconcilable inconsistency. The jury could have found that

Kibe lost control of his vehicle and skidded into Lonnquist's lane of travel without

necessarily finding that he was driving carelessly. The skidding or loss of control

of an automobile, without more, is not definitive evidence of negligence. Rickert

v. Geppert. 64 Wn.2d 350, 355, 391 P.2d 964 (1964). Given Kibe's testimony

that he was driving under the speed limit, the jury may have reasonably believed

Kibe lost control of his vehicle due to weather conditions while still exercising

ordinary care "to avoid placing himself or others in danger" and "to avoid a
No. 73569-1-1/8



collision."1

        In summary, the plaintiff is not entitled to a new trial because she invited

the error that her motion for a new trial complained of. The plaintiff is not entitled

to a new trial for the further reason that the answers given by the jury are not

logically inconsistent, nor are they inconsistent with the evidence. The trial court

abused its discretion by giving the plaintiff the opportunity for a new trial.

        The order granting Lonnquist's motion for a new trial is reversed. On

remand, the trial court shall enter judgment for the defendant in conformity with

the jury's finding of no negligence.

        Reversed.




                                                                                 0
                                                                          ^-

WE CONCUR:




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                                                            foifyf-




       1"It is the duty of every person using a public street or highway to exercise
ordinary care to avoid placing himself or others in danger and to exercise
ordinary care to avoid a collision." Clerk's Papers at 165 (jury instruction).

                                           8
