                                                                                     FILED
                                                                            COURT OF APPEALS
                                                                                DIVISION 11

                                                                            21115 APR - 7    I*.M 9 23

                                                                            STATE OF WASHINGTON

                                                                             BY
                                                                                    1     DUTY




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II


 CYNTHIA BUTLER,                                                          No. 45697 -4 -II


                                  Appellant,                     UNPUBLISHED OPINION


         v.




 RANDALL FROST,


                                  Respondent.


       BJORGEN, A. C. J. —   Cynthia Butler appeals from an adverse jury verdict in the

negligence action she   brought   against   Randall Frost arising from   a car accident   in 2011. Butler


contends that the trial court ( 1) erred or abused its discretion by giving an instruction that

misstated the law, misled the jury, and was not supported by substantial evidence, and ( 2)

improperly denied her motion for a new trial after the jury' s verdict due to the aforementioned

instructional error and because the jury' s verdict was contrary to the evidence.

        We hold that ( 1) the instruction Butler objects to did not misstate the law or mislead the

jury, (2) the trial court' s decision to give the instruction was supported by substantial evidence,

and ( 3) the trial court did not abuse its discretion or err in denying her motion for a new trial,

because the instruction at issue was proper and substantial evidence supported the jury' s verdict.

We   affirm.
No. 45697 -4 -II



                                                   FACTS


       Butler' s and Frost' s vehicles collided on a dark and rainy night in November 2011.

Butler later sued Frost, alleging that his negligence had caused the accident.

       At trial, Butler testified that she was driving in the middle southbound lane of Interstate

205 when she saw Frost' s car ahead in the right lane. Because Frost was driving erratically,

Butler decided to pass him before moving into the right lane to exit the freeway. After passing

Frost and determining that it was safe to change lanes, Butler did so. After merging, Butler

removed her foot from the gas pedal to slow down for brake lights she saw in front of her. Frost

then rear -ended her car.


        Frost' s account differed significantly. He testified that, by habit, he was not an

aggressive driver and did not tailgate. Frost stated that, in accordance with these habits, he was


driving safely and without distraction the night of the accident, at a speed neither fast nor slow.

According   to Frost, Butler   passed   him   and merged   in   an unsafe manner, " cut[   ting] [ him] off,"


and leaving little room between their two vehicles. II Verbatim Report of Proceedings ( VRP) at

207. Frost braked to increase the distance between the cars, but Butler' s vehicle " approach[ ed]

 his vehicle] fast" in spite of his efforts. II VRP at 211 - 12. Frost opined, without objection, that


Butler' s slowing must have resulted from her also braking and that " there was nothing [ he] could

have done to   avoid [ the accident] ... [    because] there was not enough distance or time" to do so

given Butler' s unsafe merge. II VRP at 222.




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No. 45697 -4 -II



         Frost proposed a jury instruction based on the duties of a driver found in RCW

46.61. 305( 1) and ( 3). 1 The instruction, given by the trial court as number 17, read in relevant

part:




                    A statute provides that no person shall move right upon a roadway unless
          and until such movement can              be   made with reasonable             safety.     That statute also

         provides that no person shall suddenly decrease the speed of a vehicle without first
         giving an appropriate signal to the driver of any vehicle immediately to the rear
          when there is opportunity to give such signal.

Clerk' s Papers ( CP) at 207.


          The jury found that Frost had not acted negligently. Given that finding, the trial court' s

instructions, and the structure of the special verdict form, the jury made no findings regarding

causation, damages, or comparative negligence on Butler' s part.

                                                                                                                   2
          After the   verdict,   Butler   moved     for   a new      trial   under   CR 59( a)( 7)   and (   8),       claiming that

no evidence justified the verdict and that the trial court erred by giving instruction 17. The trial



1
    RCW 46. 61. 305( 1)      provides   that "[   n] o person shall turn a vehicle or move right or left upon a
roadway unless and until such movement can be made with reasonable safety nor without giving
an appropriate signal in the manner hereinafter provided."


RCW 46. 61. 305( 3)        provides n] o person shall stop or suddenly decrease the speed of a
                                       that "[

vehicle without first giving an appropriate signal in the manner provided herein to the driver of
any vehicle immediately to the rear when there is opportunity to give such signal."

2 CR 59( a) provides that
                   o] n the motion of the party aggrieved, a verdict may be vacated and a new
          trial granted to all or any of the parties, and on all issues, or on some of the issues
          when such issues are clearly and fairly separable and distinct, or any other decision
          or order may be vacated and reconsideration granted. Such motion may be granted
          for any one of the following causes materially affecting the substantial rights of
          such parties;



                     7) That there is no evidence or reasonable inference from the evidence to
          justify   the   verdict or   the decision,    or   that it is contrary to law; [ or]

                      8) Error in law occurring at the trial and objected to at the time by the party
          making the application.


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No. 45697 -4 -II



court denied the motion after determining that sufficient evidence supported the verdict and that

its instruction was correct.3 Butler then filed this appeal.

                                              ANALYSIS


                                       I. INSTRUCTIONAL ERROR


       Butler contends that jury instruction 17 either misstated the law or was misleading

because it failed to define   an appropriate signal within   the meaning      of   RCW 46. 61. 305. She also


contends that the trial court erred or abused its discretion by giving the instruction because the

evidence at trial did not support the decision to do so. We disagree with both contentions.


A.      Standard of Review


        We review the trial court' s jury instructions de novo for errors of law. Anfinson v. FedEx

Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P. 3d 289 ( 2012). "'               Jury instructions are

sufficient when they allow counsel to argue their theory of the case, are not misleading, and

when read as a whole     properly inform the trier   of fact of   the   applicable   law. "' Anfinson, 174


Wn.2d at 860 ( quoting Bodin v. City ofStanwood, 130 Wn.2d 726, 732, 927 P. 2d 240 ( 1996)).

Insufficient instructions are legally erroneous. Anfinson, 174 Wn.2d at 860.

        If the instructions are legally sufficient, we review the trial court' s instructional choices,

such as the number of instructions, their wording, or the decision to give or not to give a specific

instruction for an abuse of discretion. Hough v. Stockbridge, 152 Wn. App. 328, 342, 216 P. 3d

1077 ( 2009).   The trial court abuses its discretion by choosing to give an instruction that is not

supported by substantial evidence. Fergen v. Sestero, 174 Wn. App. 393, 397, 298 P. 3d 782




3 The trial court also denied the CR 59( a)( 8) motion, in part, because it reasoned that any error
would have been harmless as the error could only have affected the jury' s determination of
Butler' s comparative negligence, an issue the jury did not reach given its finding that Frost had
not acted negligently.

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No. 45697 -4 -II



2013) (   citing State v. Hughes, 106 Wn.2d 176, 191, 721 P. 2d 902 ( 1986) and Albin v. Nat' l

Bank of Commerce of Seattle, 60 Wn.2d 745, 754, 375 P. 2d 487 ( 1962)), aff'd,                                 P. 3d ,


2015 WL 1086516 ( Wash. March 12, 2015).                         Substantial evidence supports a trial court' s choice


to   give an   instruction       where " a ` sufficient quantum [ of evidence] [ exists] [           in the record] to


persuade a      fair -minded       person of    the truth   of   the declared   premise.'"     Fergen, 174 Wn. App. at

397 ( quoting Holland            v.
                                      Boeing   Co., 90 Wn.2d 384, 390 -91, 583 P. 2d 621 ( 1978)) (            second




alteration     in   original).    When reviewing whether substantial evidence supports the choice to give

an instruction, we view the evidence and all inferences reasonably drawn therefrom in favor of

the nonmoving party. Stevens v. State, 4 Wn. App. 814, 816, 484 P. 2d 467 ( 1971).

B.        Misstatement of The Law /Misleading The Jury

          Butler first contends that instruction 17 either contained a clear misstatement of the law


or was misleading to the jury because it failed to instruct the jury that an " appropriate signal"

was one made          using hand       signals or   brake lights. Br.    of   Appellant   at   18.   She contends that the


failure to so define an appropriate signal invited the jury to speculate as to whether or not she

complied with RCW 46. 61. 305. We disagree with both variants of Butler' s argument.


          Instruction 17 did not misstate the law. An instruction misstates the law when it contains


an affirmative statement contrary to controlling authority. E.g., Anfinson, 174 Wn.2d at 871 -72;

Blaney    v.   Intl Ass 'n of Machinists &           Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 210-

11, 87 P. 3d 757 ( 2004). RCW 46. 61. 305( 3) requires drivers, where possible, to make an


appropriate signal to the immediately following driver before any sudden decrease in speed.

Instruction 17 repeated the relevant language from RCW 46. 61. 305( 3) verbatim: it informed the


jury that Butler, as the leading driver, owed a duty to make an appropriate signal, if she could,

before suddenly decreasing her speed. There was no misstatement of the law.


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No. 45697 -4 -II



        Nor was instruction 17 misleading. The failure to define a term can render an instruction

ambiguous, and     therefore misleading. Anfinson, 174 Wn.2d         at   874 -75. An instruction, however,


is not misleading where it leaves a term undefined if the jury would properly understand the term

in the context of the instruction. See Anfinson, 174 Wn.2d at 874 -75. Accordingly, even the

failure to define a term with a statutory definition is not misleading where that statutory

definition merely codifies the common meaning of a term. See State v. Scott, 110 Wn.2d 682,

691 -92, 757 P. 2d 492 ( 1988). Although RCW 46. 61. 310 defines an appropriate signal


statutorily, that definition simply codifies the term' s plain meaning in the context of driving.

There are, after all, only so many ways that a driver can signal to a following driver of an

imminent   and sudden   slowing,   and   the statutory definition   captures   them:   hand or arm signals


and signal lamps. See RCW 46. 61. 310. The jurors would have understood what an appropriate


signal was. The instruction was not misleading.

C.      Substantial Evidence


        In the light most favorable to Frost, his and Butler' s testimony at trial provided

substantial evidence to support giving instruction 17. Butler testified that she passed Frost on the

left before merging in front of him. Frost testified that, just after Butler' s merge, he began to

slow   down   out of concern about   the   small   distance between the two    cars.   He also testified that,


despite his efforts, his and Butler' s vehicles collided. Frost further testified that he saw bright,

red lights just before the collision, and offered the lay opinion that Butler must have braked to

cause the slowing necessary for the collision to have happened. From this record, a reasonable

inference is that Butler was travelling faster than Frost when she passed him and merged in front

of him. Another reasonable inference is that she suddenly slowed, or else the two vehicles could

not have quickly closed the distance between them given Frost' s braking. Given those


                                                        6
No. 45697 -4 -II



reasonable inferences, substantial evidence supported the trial court' s decision to give instruction


17.


       Butler contends that substantial evidence did not support giving the instruction because

both she and her expert testified that she had not braked and Frost' s " conclusory statements"

otherwise cannot overcome their testimony. Br. of Appellant at 20, 32 ( citing Bohnsack v.

Kirkham, 72 Wn.2d 183, 190, 432 P. 2d 554 ( 1967) and Strong v. Terrell, 147 Wn. App. 376,

384, 195 P. 3d 977 ( 2008)).      Frost' s opinion that Butler must have braked, however, was only

part of his testimony. He also testified about his perception of events that night, stating that

Butler merged and then slowed so suddenly that his braking was insufficient to avoid an

accident. His testimony was not of the type that triggers the rule found in cases like Bohnsack,

and it was for the jury to determine what actually happened.4
                                          II. MOTION FOR A NEW TRIAL


        Butler also contends that the trial court erred by denying her motion for a new trial

pursuant   to CR 59( a)( 7)   and ( 8).   Again, we disagree.


A.      CR 59( a)( 7)


        CR 59( a)( 7) permits the trial court to order a new trial after a jury has returned its verdict

where " there is no evidence or reasonable inference from the evidence to justify the verdict."

We review the trial court' s grant or denial of a motion for a new trial under CR 59( a)( 7) for an

abuse of   discretion. Palmer      v.   Jensen, 132 Wn.2d 193, 197 -98, 937 P. 2d 597 ( 1997). To


determine whether the trial court has abused its discretion, we review the trial record. Palmer,

132 Wn.2d at 197. If sufficient evidence supports the verdict, the trial court abuses its discretion




4Because we hold the jury instruction to be proper, we do not reach Frost' s argument that Butler
waived her challenge to it.

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No. 45697 -4 -II



by   ordering     a new   trial. Palmer, 132 Wn.2d           at    198.    If not, the trial court abuses its discretion by

denying the motion for a new trial. Palmer, 132 Wn.2d at 198. Evidence is sufficient to support

the verdict where it is substantial. Haft v. N. Pac. Ry. Co., 64 Wn.2d 957, 960, 395 P. 2d 482

 1964).    Again, substantial evidence is the " quantum of evidence sufficient to persuade a rational


fair -minded      person   the    premise   is true."   Clayton v. Wilson, 168 Wn.2d 57, 62 -63, 227 P. 3d 278


 2010). Again, we must view the evidence and all reasonable inferences that the evidence allows


in favor of Frost, the nonmoving party. Haft, 64 Wn.2d at 960.

          A     negligence claim requires proof of           four       elements: (   1) the   existence of a   legal   duty, ( 2)

breach    of that   duty, ( 3) injury resulting from the breach, and ( 4) proximate causation. Ranger

Ins. Co.   v.   Pierce    County,    164 Wn. 2d 545, 552, 192 P. 3d 886 ( 2008).                 The special verdict form


given to the jury noted these elements and required separate findings on each. The jury found

that Frost had not acted negligently, meaning had not breached a duty of care, and consequently

made no findings on the other elements of Butler' s negligence claim.


           The record contains substantial evidence supporting that verdict. Frost testified that,

before the       accident,   he   was   driving   neither   fast   nor slow,   but " safe[ ly]" and without distraction.


II VRP     at   206, 220 -21.      The jury also heard him explain that he did not " tend to tailgate" and was

not an aggressive driver. II VRP at 219. Frost stated that Butler " cut [him] off" when she

merged right,       II VRP    at   207, then   slowed so     that her car "     approach[ ed] [    him] fast," II VRP at


212, despite his attempts to slow down. Frost testified that, because of Butler' s unsafe merge


and sudden slowing, the accident was unavoidable. Taking the evidence in the light most

favorable to Frost, a jury could conclude that Frost had acted with ordinary care, but that the

accident had nonetheless happened. Cf.James v. Niebuhr, 63 Wn.2d 800, 802, 389 P. 2d 287




                                                                    8
No. 45697 -4 -II



 1964).       Given this evidence, the trial court did not abuse its discretion by denying Butler' s

motion for a new trial under CR 59( a)( 7).


          Butler contends that the verdict is contrary to the evidence she offered, including Frost' s

own deposition testimony and interrogatory answers, both of which she offered as substantive

evidence. Even if we agreed that Frost' s out -of c
                                                  - ourt statements conflicted with his trial


testimony, and we do not,5 the jury resolved that conflict in favor of the version Frost offered at

trial, and we defer to the jury' s resolution of conflicting testimony. McCoy v. Kent Nursery, Inc.,

163 Wn. App. 744, 769, 260 P. 3d 967 (2011).

B.         CR 59( a)( 8)


           CR 59( a)( 8)   also allows    the trial   court   to   grant a new    trial   for   an "[   e] rror in law occurring

at   the trial,"   which prejudiced the moving party. We review the trial court' s denial of a motion

for   a new    trial   under   CR 59( a)( 8) de   novo.   M.R. B.      v.   Puyallup   Sch. Dist.,      169 Wn. App. 837,

848, 282 P. 3d 1124 ( 2012);


           Butler bases her claim of error related to the denial of the motion for a new trial on her


argument that the trial court erred by giving instruction number 17. But, as we have discussed

above, the trial court did not err by giving the instruction. Because the instruction was not

erroneous, the trial court did not err by denying Butler' s motion for a new trial under CR

59( a)( 8).




5 Butler extensively briefs what she considers the contradictions between the out -of c- ourt
statements and Frost' s trial testimony. Reviewing the record, the out -of -court statements are
consistent with Frost' s description of events, namely that Butler merged in front of him too
closely for him to avoid an accident when she slowed down.
                                                                   9
No. 45697 -4 -II



                                          CONCLUSION



        We find no error in the wording of instruction 17 and no abuse of discretion in the trial

court' s decision to give it, considering the evidence in the record. We also find substantial

evidence supported the jury' s verdict. For these reasons, 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.




 We concur:




 VG IRSWICK, 7.




 SUTTON, J.




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