                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         September 5, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 BRIANNA P. CHANDLER, as personal                                    No. 49580-5-II
 representative for estate of KAHIL M.
 MARSHALL,

                                Appellant,

        v.

 STATE OF WASHINGTON; DEPARTMENT                              UNPUBLISHED OPINION
 OF      TRANSPORTATION;           SHELTON
 SCHOOL DISTRICT #309, a municipal
 corporation; SUZAN J. MONTANO-FELTON
 and JOHN DOE MONTANO-FELTON,
 husband and wife and the marital community
 comprised thereof; NATHEN R. WRIGHT and
 JANE DOE WRIGHT, husband and wife and
 the marital community comprised thereof,

                                Respondents.

       LEE, A.C.J. — Brianna P. Chandler, as personal representative of her mother’s estate,

brought a wrongful death action after her mother was killed in a car accident involving a Shelton

School District school bus. Chandler argues that (1) the jury verdict in favor of the defendants

was not supported by substantial evidence, (2) the language of the special verdict form created a

presumption that one of the named defendants was solely responsible for the accident, (3) the jury

failed to complete the damages section of the special verdict form, (4) the trial court erred in

excluding expert testimony related to future child care support costs, and (5) the trial court abused

its discretion in denying Chandler’s motion for a new trial following the jury verdict. We affirm.
No. 49580-5-II


                                               FACTS

A.     BACKGROUND

       In the early morning hours of October 27, 2010, Nathen Wright drove his vehicle into the

back of a Shelton School District school bus driven by Suzan J. Montano-Felton. Wright’s

girlfriend, Kahil M. Marshall, was seated in the passenger seat of Wright’s vehicle during the

collision and died as a result of the crash.

       Chandler, as personal representative of Marshall’s estate, filed a wrongful death action

against Wright, the Washington State Department of Transportation,1 the School District, and

Montano-Felton. Chandler alleged that on the morning of the accident, Montano-Felton had

operated the school bus in a negligent manner and that the School District had negligently failed

to supervise Montano-Felton. Wright failed to respond to the lawsuit and, a default judgement

was entered against him.

B.     TRIAL

       1.      Testimony Regarding the Accident

       Wright testified that he and the school bus were driving in adjacent lanes moments before

the collision. Wright glanced down at the radio for three seconds, and when he looked up, the bus

was right in front of him. According to Wright, he did not have an opportunity to brake and could

not avoid the collision.

       Ed Wells, an accident reconstructionist, corroborated Wright’s version of the events.

Based on his reconstruction of the accident scene, Wells concluded that the school bus changed



1
  The Washington State Department of Transportation was later dismissed from the lawsuit by
agreed order of the parties.


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No. 49580-5-II


lanes right in front of Wright, giving him only two and a half seconds to react. According to Wells,

Wright did not have time to avoid the collision.

       Montano-Felton admitted that in the week before the accident, she had made several

personal phone calls while on duty in violation of the school district’s policies. She also admitted

that she had been reprimanded for using her Bluetooth in violation of school policy while on duty

in 2009.

       During her time working for the School District, Montano-Felton had been involved in

several accidents. In 2001, Montano-Felton hit another bus while pulling her bus into the service

bay. Law enforcement also recorded Montano-Felton speeding while driving the school bus in

2002. She also hit a vehicle in 2003, causing injuries to two students aboard her bus. In 2006, she

hit a pedestrian in a crosswalk with her school bus.

       Montano-Felton also testified that she was not using her phone when Wright’s vehicle

collided into the back of her school bus. According to Montano-Felton, she was already driving

in the left lane, waiting to make a left turn when Wright drove his vehicle into the back of her

school bus.

       Sandi Thompson, Montano-Felton’s supervisor, confirmed that Montano-Felton hit

another bus in 2001 and that the School District determined that the accident was preventable.

Thompson explained that the School District issued a written warning to Montano-Felton for

speeding in 2002. The School District also determined Montano-Felton’s 2003 accident was

preventable and required her to complete one to two hours of retraining as a result. Thompson

admitted that she witnessed Montano-Felton using her Bluetooth while on duty in 2009. But she




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No. 49580-5-II


also testified that nothing in the phone records showed that Montano-Felton was on the phone at

the time of the October 27, 2010 accident.

       Steven Cole, an eyewitness to the accident, testified that he was driving on the highway

the morning of the accident when he noticed Wright’s vehicle driving erratically behind him. Cole

saw Wright’s vehicle weave in and out of several lanes, drift back and forth in the same lane, and

swerve around traffic. At one point, Wright’s vehicle drifted into Cole’s lane, forcing Cole to

maneuver his vehicle onto the shoulder of the road in order to avoid a collision. Cole continued

to watch Wright’s vehicle after it passed him. Cole saw Wright’s vehicle approach the school bus

from behind and crash into the back of the school bus. According to Cole, the school bus did not

change lanes just prior to the accident and Wright’s brake lights were not on in the moments

leading to the crash.

       2.       Testimony Regarding Economic Damages

       Marshall was survived by five children and three grandchildren. Two of her grandchildren

lived in Washington and one grandchild lived in Arizona. At the time of the accident, none of

Marshall’s children lived with her.

       At trial, Chandler sought to introduce the expert testimony of economist William Brandt

regarding the economic damages in the case. During voir dire of Brandt outside the presence of

the jury, Brandt testified that he had analyzed the support costs Marshall would have provided for

her surviving children. Specifically, Brandt had calculated the “child care [costs] that [Marshall]

might have provided” for her grandchildren. 3 Verbatim Report of Proceedings (VRP) (July 14,

2016) at 491.




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No. 49580-5-II


       Brandt explained that he had not been provided any specific information as to the level of

child care support Marshall had provided to her grandchildren. His calculations were based on

Marshall caring for her existing grandchildren, as well as for future grandchildren that her

daughters might birth sometime in the future. He was “given some guidelines as to the calculations

that [he] should make.” 3 VRP (July 14, 2016) at 491. These guidelines were that each of

Marshall’s children would “likely have required” five hours of child care assistance per month

until their oldest child reached the age of 16. 3 VRP (July 14, 2016) at 491. He then calculated

the monetary value of those child care services over a 16 year period of time for each daughter.

When asked where he got the five hour per month figure, Brandt explained that he was given the

number and asked to provide a calculation under those assumptions.

       The defendants argued that Brandt’s testimony should be excluded because none of

Marshall’s children lived with her at the time of the accident and Brandt admitted that his

calculations were solely based on a number given to him by Chandler. Further, Brandt’s

calculations were based on an assumption that some of Marshall’s daughters would have children

in the future and that Marshall would have provided child care to her future grandchildren.

       The trial court found that Brandt’s testimony was based on speculation because it required

a finding that all of Marshall’s daughters would ultimately have children in the future and that

once they did, Marshall would have ultimately provided child support to her future grandchildren.

Thus, the trial court ruled that Brandt’s testimony regarding child care support calculations for

Marshall’s grandchildren was inadmissible.




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No. 49580-5-II


        3.     Jury Instructions and Verdict

        The jury returned a special verdict that Montano-Felton was not negligent and was not a

proximate cause of injury and damage to Marshall. The jury also returned a special verdict that

the School District was negligent, but that the School District’s negligence was not a proximate

cause of injury and damage to Marshall.2

        The special verdict form instructed the jury that “[a] default judgment has been entered

against [Wright] therefore no determination need be made” as to Wright’s negligence. Clerk’s

Papers (CP) at 24 (emphasis omitted). As to damages, the special verdict instructed the jury that

if it found that none of the defendants were the proximate cause of Marshall’s injury and damage,

then the jury need not reach the questions relating to damages. The jury did not fill out the portion

of the verdict form related to damages. Chandler did not object to the special verdict form provided

to the jury.

        C.     MOTION FOR NEW TRIAL

        Following the jury verdict, Chandler filed a motion for a new trial pursuant to CR 59 (1),

(2), (7), and (9). Chandler argued that the jury verdict was not supported by substantial evidence

because she had presented evidence that the school district had continued to allow Montano-Felton

to drive despite numerous incidents and disciplinary actions and that Montano-Felton had “cut-

off” Wright’s vehicle, which left Wright no time to react and avoid the collision. CP at 27.

        Chandler also argued that substantial justice had not been done because the jurors’

comments following the verdict “strongly indicate[d] that they did not properly understand how to



2
  The only jury instruction provided regarding the School District’s negligence went to vicarious
liability.


                                                 6
No. 49580-5-II


apply their factual conclusions to the law.” CP at 31. Specifically, when the jurors spoke with

counsel following the verdict, they expressed concern that Montano-Felton was not fit to be a

school bus driver, and one juror stated that she would not want Montano-Felton transporting her

grandchildren to school.

       The trial court denied Chandler’s motion for a new trial. Chandler appeals.


                                           ANALYSIS

A.     SUBSTANTIAL EVIDENCE TO SUPPORT JURY VERDICT

       Chandler appears to argue that the jury verdict was not supported by substantial evidence

because the evidence at trial showed that Montano-Felton routinely engaged in dangerous driving

behaviors in violation of Shelton School District policies and that the Shelton School District was

aware of the danger Montano-Felton posed. We disagree.

       1.      Standard of Review

       We review a jury verdict for substantial evidence. Gorman v. Pierce County, 176 Wn.

App. 63, 87, 307 P.3d 795 (2013), review denied 179 Wn.2d 1010 (2014). Substantial evidence is

evidence “sufficient to persuade a rational, fair-minded person that the finding is true.” Cantu v.

Dep’t of Labor & Indus., 168 Wn. App. 14, 21, 277 P.3d 685 (2012). When reviewing a jury

verdict for substantial evidence, we view the evidence in the light most favorable to the nonmoving

party. McCoy v. Kent Nursery, Inc., 163 Wn. App. 744, 769, 260 P.3d 967 (2011), review denied,

173 Wn.2d 1029 (2012). And we defer to the trier fact on issues of conflicting testimony, witness

credibility, and the persuasiveness of the evidence. Id.




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No. 49580-5-II


       2.      Negligence of Montano-Felton

       Chandler argues that the jury verdict finding Montano-Felton not negligent was not

supported by substantial evidence because the evidence at trial showed that Montano-Felton

routinely disregarded the School District’s operational policies and had been responsible for

several accidents in the years prior to the collision with Wright. Chandler also notes that Wells

testified that Montano-Felton abruptly switched into Wright’s lane of travel, leaving Wright no

time to react and avoid the collision. We find Chandler’s argument unpersuasive.

       The elements of negligence are duty, breach, proximate cause, and damages. Mathis v.

Ammons, 84 Wn. App. 411, 415-16, 928 P.2d 431 (1996), review denied, 132 Wn.2d 1008 (1997).

Duty is the duty to exercise ordinary care, while breach is a failure to exercise ordinary care. Id.

at 416. Stated another way, breach is “the failure to exercise such care as a reasonable person

would exercise under the same or similar circumstances.” Id. Breach is also referred to as

“negligence.” Id.

       While there is evidence that Montano-Felton caused a number of traffic accidents between

2001 and 2006, there was no evidence that Montano-Felton did some act that a reasonable person

would not do under the same or similar circumstances on the morning of October 27, 2010. And

even though the evidence at trial showed that Montano-Felton had previously been reprimanded

for using her cell phone and Bluetooth while on duty, there was no evidence showing that

Montano-Felton was on her phone at the time of the collision on October 27, 2010. In fact,

Montano-Felton testified that she was not using her phone when Wright’s vehicle collided into the

back of her bus. Viewing the evidence in the light most favorable to Montano-Felton, a reasonable




                                                 8
No. 49580-5-II


fact finder could conclude that Montano-Felton was not using her phone while operating her school

bus on the morning of October 27, 2010.

       As to Wells’s testimony, we defer to the trier of fact on issues of conflicting testimony,

credibility of the witnesses, and the persuasiveness of the evidence. McCoy, 163 Wn. App. at 769.

Even if convinced that a wrong verdict has been rendered, as long as there was evidence which

would have supported the verdict if believed, we will not substitute our judgment for that of the

jury. Estate of Stalkup v. Vancouver Clinic, Inc., PS, 145 Wn. App. 572, 586, 187 P.3d 291 (2008).

       And, even though Wells testified that Montano-Felton must have abruptly changed lanes

in front of Wright, Cole testified that he saw Wright driving erratically moments before the

collision. Cole also testified that he saw Wright’s vehicle approach the school bus from behind

and that the school bus did not abruptly changes lanes moments before the collision. Viewing this

evidence in the light most favorable to Montano-Felton, there was substantial evidence to support

the jury’s finding that Montano-Felton did not fail to exercise ordinary care on the morning of the

accident, and thus was not negligent.

       3.      Negligence of the School District

       Chandler also appears to argue that the jury’s verdict finding that the School District was

not the proximate cause of Marshall’s injury and damage was not supported by substantial

evidence. We disagree.

       Chandler’s argument focuses on the evidence showing that the School District knew

Montano-Felton had used her phone while on duty in the past and had been involved in several

accidents over the course of her employment with the School District. However, as discussed

above, there was no evidence showing that Montano-Felton was using her phone when Wright



                                                9
No. 49580-5-II


collided with the back of her school bus. And Cole testified that the school bus Montano-Felton

was driving did not change lanes in front of Wright’s vehicle moments before to the accident.

Instead, Cole saw Wright’s vehicle weaving in and out of traffic and collide into the back of the

school bus without braking. Therefore, the evidence at trial supported the jury’s finding that any

negligence by the School District was not the proximate cause of the accident. We hold that

Chandler’s challenge to the jury verdict on this basis fails.

B.     SPECIAL VERDICT FORM LANGUAGE

       Chandler assigns error to the special verdict form because it stated that “[a] default

judgment has been entered against [Wright] therefore no determination need be made.” CP at 25.

According to Chandler, this language prejudiced the jury against Wright and created a presumption

that Wright was wholly responsible for the accident and the resulting injuries to Marshall.

However, Chandler never objected to the special verdict form at trial, nor did she propose an

alternative special verdict form. Therefore, we do not address this assignment of error. Lahmann

v. Sisters of Saint. Francis of Philadelphia, 55 Wn. App. 716, 723, 780 P.2d 868 (1989)

(“[Appellant]’s failure to object to the form of the special verdict instruction while the trial court

still had control over the form to be presented to the jury precludes consideration of the issue on

appeal.”)




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No. 49580-5-II


C.     FAILURE TO AWARD DAMAGES

       Chandler appears to assign error to the jury’s failure to complete the portion of the special

verdict form regarding damages.3 She argues that the verdict form did not allow the jury to find

Montano-Felton and the School District jointly and severally liable for the damages caused. But

Chandler never objected to the special verdict form at trial and, therefore, cannot make such

challenge for the first time on appeal. Id.

       Chandler also argues that the jury failed in their duty because they never made a finding of

damages on the special verdict form. However, the special verdict form instructed the jury to only

make a finding of damages if it first found that one or more defendants were the proximate cause

of injury and damage to Marshall. Because the jury found that Montano-Felton and the Shelton

School District were not the proximate cause of injury and damage to Marshall, and the verdict

form instructed the jury to not make any finding as to Wright, the jury simply followed the

instructions of the verdict form by not making a finding as to damages. Thus, Chandler’s

assignment of error on this basis fails.

D.     LIMITING DAMAGES EVIDENCE CHANDLER COULD PRESENT

       Chandler argues that the trial court erred in precluding Brandt’s testimony regarding the

child care support costs Marshall may provide for her grandchildren in the future.4 We disagree.




3
 Chandler contends that the “court erred” in failing to award damages, even though the proceeding
below was a jury trial. Br. of Appellant at 28.
4
  Chandler also appears to argue that the trial court erred in excluding evidence related to
“compensation for the loss of financial provision and for the loss of love and affection” of her
children. Br. of Appellant at 33. However, the record shows that Chandler never proferred any
testimony as to these types of damages. The only testimony Chandler sought to introduce


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No. 49580-5-II


       1.      Standard of Review

       The trial court is afforded wide discretion in ruling on the admissibility of expert testimony.

Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 352, 333 P.3d 888 (2014). We will not disturb a

trial court’s ruling on admissibility of expert opinion testimony absent an abuse of such discretion.

Id. “A trial court abuses its discretion if it relies on unsupported facts, applies the wrong legal

standard, or adopts a position no reasonable person would take.” In re Det. of McGary, 175 Wn.

App. 328, 337, 306 P.3d 1005, review denied, 178 Wn.2d 1020 (2013). We will not disturb the

trial court’s ruling if the basis for admitting the expert testimony is fairly debatable. Johnston-

Forbes, 181 Wn.2d at 352.

       2.      The Trial Court did not Abuse its Discretion

       Chandler appears to argue that the trial court abused its discretion in excluding Brandt’s

testimony calculating the value of the child care support services Marshall would have rendered

to her grandchildren. However, Brandt’s calculations were based on Marshall caring for her

current grandchildren, as well as her caring for future grandchildren that her daughters might birth

sometime in the future. Chandler cites to no authority holding that a plaintiff may recover the

value of child support services that may be rendered to hypothetical grandchildren that have yet to

be born or conceived.5




regarding the extent of damages in this case was through Brandt’s testimony on the value of future
child care support.
5
  Instead, she cites to a case in which our Supreme Court addressed whether parents could recover
damages for the loss of love and companionship, as well as the destruction of the parent-child
relationship, following the death of their seven year old child. Hinzman v. Palmanteer, 81 Wn.2d
327, 501 P.2d 1228 (1972). Chandler does not explain how Hinzman applies here.


                                                 12
No. 49580-5-II


       Further, Brandt’s child support calculations related to Marshall’s present grandchildren

were based on an assumption that Marshall would have provided five hours of child care assistance

per month for 16 years of each grandchild’s life. However, nothing in the record shows that

Marshall provided child care assistance for her grandchildren.         In fact, one of Marshall’s

grandchildren lived in Arizona. An expert opinion may not be based on assumptions for which

there is no factual basis. See Riccobono v. Pierce County, 92 Wn. App. 254, 268, 966 P.2d 327

(1998). Because there was no factual basis to support Brandt’s calculation that Marshall would

have provided five hours of child care assistance to each grandchild (that she had or may have had

in the future) for 16 years of their lives, it was not manifestly unreasonable for the trial court to

exclude such testimony. We hold that Chandler’s argument on this basis fails.

E.     MOTION FOR A NEW TRIAL

       Chandler argues that the trial court abused its discretion in denying her motion for a new

trial pursuant to CR 59(a)(7) and (9). We disagree.6

       1.      Standard of Review

       We review an order denying a motion for a new trial under CR 59(a) for abuse of discretion.

Aluminum Co. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000). A trial court

abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.

Rosander v. Nightrunners Transp., Ltd., 147 Wn. App. 392, 403, 196 P.3d 711 (2008). Exercise

of the trial court’s discretion might result in a decision upon which reasonable minds may differ,



6
  Chandler also argues that the trial court erred in denying her motion to enter a judgment
notwithstanding the verdict. However, the record shows that Chandler never moved for judgment
notwithstanding the verdict, but instead solely moved for a new trial and additional time to obtain
sworn juror testimony.


                                                 13
No. 49580-5-II


but we must uphold such decision if it is within the bounds of reasonableness. In re Estate of

Stevens, 94 Wn. App. 20, 30, 971 P.2d 58 (1999).

       2.      The Trial Court did not Abuse its Discretion

       Under CR 59(a)(7), upon motion of an aggrieved party, the trial court may vacate a jury

verdict and grant a new trial where there is “no evidence or reasonable inference from the evidence

to justify the verdict or the decision, or that it is contrary to law.” Also, under CR 59(a)(9), the

trial court may vacate a verdict when “substantial justice has not been done.” Because of the other

broad grounds for relief afforded under CR 59(a), courts rarely grant reconsideration for lack of

substantial justice. Sligar v. Odell, 156 Wn. App. 720, 734, 233 P.3d 914 (2010), review denied,

170 Wn.2d 1019 (2011).

       Chandler appears to argue that there was no evidence or reasonable inference from the

evidence to justify the jury verdict because the evidence showed that all of the defendants were

negligent. However, as discussed above, substantial evidence supported the jury verdict that

Montano-Felton was not negligent and that the Shelton School District was not the proximate

cause of injury to Marshall.

       Chandler also fails to explain how the trial court’s denial of her motion amounted to denial

of substantial justice. Instead, she again argues that the “jury failed in their duty to make any

determination” as to damages. Br. of Appellant at 38. But, as explained above, the jury was

instructed to not determine damages if it found that neither Montano-Felton nor the Shelton School

District were the proximate cause of injury to Marshall.

       The trial court’s order denying Chandler’s motion for a new trial was not manifestly

unreasonable or based upon untenable grounds. Therefore, Chandler’s argument fails.



                                                14
No. 49580-5-II


                                       ATTORNEY FEES

        Chandler requests attorney fees on appeal pursuant to RAP 14.2 and RAP 18.1. Under

RAP 14.2, “A commissioner or clerk of the appellate court will award costs to the party that

substantially prevails on review.” Because Chandler does not prevail on review, she is not entitled

to costs pursuant to RAP 14.2. And even though Chandler devotes a portion of her opening brief

to request fees and expenses, as required by RAP 18.1(b), she fails to cite to any applicable law

granting her the right to recover reasonable attorney fees on review before this court, as required

by RAP 18.1(a). Therefore, we deny her request for attorney fees.

        We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     Lee, A.C.J.
 We concur:



 Bjorgen, J.




 Melnick, J.




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