                                                                                                                          FRIO
                                                                                                              L U•U f OF APPEALS
                                                                                                                      DIVISION 11
                                                                                                             201L1/
                                                                                                                  4JUN    17   AIh1 8: 34
    IN THE COURT OF APPEALS OF THE STATE OF WASI,,
                                                                                                                                      ON

                                                      DIVISION II

RAYNA MATTSON,                                                                           No. 43735 -0 -II


                                       Appellant,                                UNPUBLISHED OPINION


       v.



AMERICAN PETROLEUM
ENVIRONMENTAL SERVICES, INC_;
BERND STADTHERR and JANE DOE
STADTHERR,


                                       Respondents.


       BJORGEN, A.C. J. —            Rayna Mattson sued American Petroleum Environmental Services


APES) and Bernd Stadtherr, an APES employee, claiming that they negligently caused her car

accident    by   spilling   oil    on an   interstate .freeway.        Ultimately, a jury found no negligence by

Stadtherr or APES. Mattson appeals, arguing ( 1) that the trial court erred in denying her motions

for judgment      as    a matter     of   law   or    a new   trial   on   liability   because there        was " undisputed"




evidence as to APES' s negligence, and ( 2) that other irregularities require a new trial, including

a) the trial court' s refusal to apply res judicata or various forms of estoppel to prevent APES

from   litigating      causation     during     the trial   on    APES'     s    and   Stadtherr'   s   liability, ( b)   multiple




instructional    errors, ( c)     misconduct     by   APES'   s counsel, ( d)     juror misconduct, and ( e) cumulative


error. We disagree and affirm.


                                                            FACTS


        APES collects and reprocesses waste oil for reuse. Its operators, like Stadtherr, drive

tanker trucks to       sites where used oil      is located,     collect   the   oil, and   then   return   it to APES'   s
No. 43735 -0 -II



facility for recycling.

        In July 2003, APES assigned Stadtherr to return a shipment of waste oil from Canada.

Before setting out, Stadtherr followed his normal pre -trip routine and performed a federally

mandated pre -trip inspection to ensure that everything on the truck was in proper working

condition. As part of his inspection, Stadtherr verified that properly functioning bungee cords

secured the vacuum hoses used to collect the oil in their housings.


        After finishing his inspection, Stadtherr left APES' s facility near the Port of Tacoma and

proceeded north on   Interstate . ( I -).
                                5     5      Before Stadtherr reached Federal Way, he noticed that one

of the vacuum hoses had come loose and was dragging behind the truck. The hose had not

dragged for very long; truck drivers must check -heir rear view mirrors every 15 to 20 seconds
                                                t

and Stadtherr had not seen the hose in his last check in the mirror. Stadtherr pulled over to the

side of the road and discovered that contact with the road and the truck' s tires had split the hose

open.




        Mattson was also driving northbound on T -5 just after Stadtherr. A slick substance on the

freeway caused Mattson' s tires to lose their grip, and she lost control of her car. She spun

around several times, careened off the interstate, and rolled down the embankment at the side of


the road, flipping several times before stopping.

        A Washington State. Patrol trooper responded to the scene of Mattson' s accident and

noticed a significant amount of liquid on the roadway. The trooper summoned the Department

of Transportation to clean up the slick, which was made of a " slippery kind of substance" and

extended "[ m] ore   than   a   football field"   on•I   5. Clerk' s Papers ( CP) at 1572, 1578. The trooper
                                                         -


 also summoned another state patrol unit to contact Stadtherr, who had stopped his truck on the


                                                             2
No. 43735 -0 -II



side of the road a short distance away, on the assumption that Stadtherr' s truck had a connection

to the accident. The troopers later cited Stadtherr for causing the accident.

        Mattson sued APES and Stadtherr and his marital community, alleging that they had

negligently allowed oil to spill onto the freeway, causing the accident and her resulting injuries.

        The parties exchanged cross motions for summary judgment before trial. Mattson first

sought judgment that APES and Stadtherr had negligently caused her accident. Mattson' s

second motion sought judgment that her accident had proximately caused her injuries and that

her claims of damages from those injuries were reasonable. APES sought summary judgment on

the ground that it had not breached its duty of care. For purposes of deciding these various

motions, APES asked the court to consider as true Mattson' s argument that APES had spilled the

oil that caused her accident.


        The trial court granted Mattson' s motions for summary judgment. The court found APES

and Stadtherr jointly and severally liable for the automobile accident based on common law

negligence and for all Mattson' s injuries proximately causedbythe accident. The trial court also

found that the collision caused Mattson' s injuries, that she bore no comparative fault for the

accident, and that her damages claims were reasonable. The trial court ordered a trial " solely on

the issue of the nature and extent of the damages proximately caused to the Plaintiff as a result of

the Defendants' negligence" and instructed the jury that, regardless of their verdict on other

damages, the court had determined she had suffered $109, 645. 40 in medical costs, lost wages,

and other expenses. CP at 570, 574. After the, trial on damages, the jury returned a verdict for

Mattson in excess of $500,000. 00.




                                                  3
No. 43735 -0 -II


        APES appealed. It assigned error to the trial court' s order " granting Respondent Rayna

Mattson' s   motion     for   partial   summary judgment         on   liability."   CP at 671. APES contended that


 material issues of fact remain regarding APES 's negligence and the proximate cause of this

accident" and that the trial court erred by determining that APES was negligent under traditional

or res ipsa loquitor theories of negligence. CP at 671.

        On   appeal, we agreed with           APES   and reversed        summary judgment             on   liability, " because

    genuine issues of material fact remained as to whether [ APES and Stadtherr] breached a duty

of care and,   if so,   whether    that breach proximately           caused   the   accident."       CP at 589..


Consequently, we remanded for trial on the issue of APES' s and Stadtherr' s liability.

        On   remand,     the    parties   tried the issue   of   liability   before   a   jury.' The jury found that

APES and Stadtherr had not acted negligently and therefore returned no verdict with regard to

causation. Mattson sought post- verdict relief, including judgment as a matter of law under CR

50 and the grant of a new trial under CR 59, but the trial court denied these motions. Mattson

now appeals.



                                                      ANALYSIS


  I. MOTION FOR JUDGMENT AS A MATTER OF LAW AND ALTERNATIVE MOTION FORNEW TRIAL

        At the close of evidence and after the verdict, Mattson moved for judgment as a matter of


law and, alternatively, for a new trial, based on the " unrebutted and undisputed evidence [ of

APES'   s and   Stadtherr' s     negligence] ...    presented at [ the]        time   of   trial."   Br. of Appellant at 48;




  Due to the number and variety of issues raised in this appeal, we set the relevant facts out
 below while analyzing Mattson' s claims of error.
                                                                 4
No. 43735 -0 -II


                                                                                       2
CP    at   2595 -2606, 2716 -62. The trial        court     denied these    motions.       Despite Mattson' s


characterization, the record contains conflicting evidence that created material issues of fact..

Consequently, the trial court did not err when it sent the negligence question to the jury and

denied Mattson' s post -
                       verdict motions for relief.

A.          Standard of Review and Principles of Negligence

            We review de novo a trial court' s denial of a motion for judgment as a matter of law

under      CR 50. Davis       v.   Microsoft   Corp., 149      Wn.2d 521, 530 -31, 70 P. 3d 126 ( 2003).        Judgment


as a matter of       law is   appropriate   if,after   "'   viewing the evidence most favorable to the

nonmoving party, the court can say, as a matter of law, there is no substantial evidence or

reasonable      inference to       sustain a verdict   for the nonmoving party. "' Davis, 149 Wn.2d at 531


 quoting      Sing v. John L. Scott, Inc.,       134 Wn.2d 24, 29, 948 P. 2d 816 ( 1997)).            Mattson must


accept as true all evidence APES offered and any inferences reasonably drawn from that

evidence for purposes of searching for this substantial supporting evidence. Goodman v.

Goodman, 128 Wn.2d 366, 371., 907                 P. 2d 290 ( 1995). Substantial evidence in support of the

jury' s    verdict   is " evidence    ` sufficient ....   to   persuade a   fair -
                                                                                 minded, rational   person '    that APES


and Stadtherr did not breach their duty of care. Davis, 149 Wn.2d at 531 ( quoting Heiman v.

Sacred Heart         Hosp.,   62 Wn.2d 136, 147, 381 P. 2d 605 ( 1963)) ( alteration in original).




2
    On appeal, Mattson assigns error to the denial of her motion for judgment as a matter of law,
but does not specifically assign error to the denial of her motion for a new trial. Nevertheless,
her briefing adequately presents each ofthese related challenges and the record is sufficient to
review each. Accordingly, we review both challenges consistently with State v. Gower, 172 Wn.
App.       31, 45, 288 P. 3d 665 ( 2012), overruled on other grounds, 179 Wn.2d 851, 321 P. 3d 1178 \
    2014) ( this   court may consider issues raised without formal assignments of error if sufficiently
briefed and the record allows review).




                                                                   5
No. 43735 -0 -II



          We review a trial court' s decision to deny a motion for a new trial under CR 59( a) for an

abuse of   discretion. Brundridge          v.   Fluor Fed. Servs., Inc., 164 Wn.2d 432, 454, 191 P. 3d 879


 2008).    A trial court abuses its discretion if it denies a motion for a new trial where the record

does not contain substantial evidence to support the verdict. Palmer v. Jensen, 132 Wn.2d 193,

197 -98, 937 P. 2d 597 ( 1997). We again consider the facts and inferences in the light most


favorable to the nonmoving party when reviewing the record for substantial evidence to support

a trial court' s decision on a CR 59 motion for a new trial. Hizey v. Carpenter, 119 Wn.2d 251.,

271 -72, 830 P.2d 646 ( 1992).


          A person acts negligently by failing "to exercise such care as a reasonable person would

exercise under     the   same or   similar      circumstances."   Mathis v. Ammon, 84 Wn. App. 411, 416,

928 P. 2d 431 ( 1997).      To prove negligence, a plaintiff must show the existence of a legal duty to

exercise ordinary care, breach of that duty, and that the breach proximately caused damages to

the plaintiff. Mathis, 84 Wn. App. at 415 -16. A duty of care may exist by virtue of the common

law or a statute. Mathis, 84 Wn. App. at 416 -17.

          Alternatively, in "' peculiar         and exceptional cases'"   a plaintiff may prove negligence by

res ipsa loquitor, which allows the jury to infer negligence without the plaintiff proving specific

acts of negligence.       Curtis   v.   Lein, 169 Wn.2d 884, 889, 239 P. 3d 1078 ( 2010) ( quoting    Tinder v.

Nordstrom, Inc., 84 Wn.        App.      787, 792, 929 P. 2d 1209 ( 1997). To invoke the doctrine of res


ipsa loquitor, the plaintiff must show " he or she suffered injury, the cause of which cannot be

fully explained, and the injury is of a type that would not ordinarily result if the defendant were

not negligent."     Pacheco    v.   Ames, 149 Wn.2d 431, 436, 69 P. 3d 324 ( 2003).        To satisfy these

 requirements, the plaintiff must show that



                                                             6
No. 43735 -0 -II



          1)   the accident or occurrence that caused the plaintiff' s injury would not
                                  absence of negligence, ( 2) the instrumentality or agency
         ordinarily happen in the
         that caused the plaintiff' s injury was in the exclusive control of the defendant, and
         3) the plaintiff did not contribute to the accident or occurrence.


Lein, 169 Wn.2d at 891.


B.       Evidence of Negligence


         We begin by acknowledging that Mattson presented significant evidence of negligent

conduct by APES and Stadtherr. Mattson' s expert, Christopher Ferrone, testified that APES and

Stadtherr breached statutory duties requiring them to prevent their cargo or load from " leaking,

spilling, blowing or falling from" the tanker truck. Verbatim Report of Proceedings ( VRP)(Mar.
28, 2012) at 505. Ferrone further stated that the measures APES and Stadtherr took to secure the

hose on their truck failed to satisfy their common law duty to exercise ordinary care. Ferrone

opined   that " ultimately ...      the oil [causing the accident] is related to this truck as a result of the

hose   becoming detached       or   partially detached ...         and being run over by its own wheels, and as a

consequence: putting    that     oil onto   the   pavement."       VRP ( Mar. 28, 2012)   at   511. Ferrone stated


also that he saw no evidence that suggested that anything other than APES' s leaking hose had

caused the collision.


         In addition, APES' s own personnel and its expert testified in a manner that would have

allowed the jury to find a breach of the duty to exercise ordinary care. Both Michael Mazza,
APES' s owner, and Stadtherr testified that the rough nature of I - at the time caused the tanker
                                                                  5

trucks to bounce violently. Stadtherr testified that this violent bouncing could cause objects

 secured to the truck to come loose. APES' s own expert testified that it was foreseeable that a

bungee cord could break while driving a tanker truck on I -5' s rough surface. Stadtherr also

 testified that he saw oil on the tanker truck while inspecting the split hose. Further, Mattson

                                                               7
No. 43735 -0 -II



impeached both Stadtherr and Mazza with deposition testimony indicating that they had accepted

responsibility for Mattson' s accident.

       However, APES and Stadtherr also introduced evidence that they had complied with their

common law standard of care. Mazza testified that APES required its drivers to inspect the

bungee cords to ensure their proper function, and Stadtherr testified that he had done so on the


day of the incident. Mazza and Stadtherr both testified that other companies in the oil transport

industry   commonly   used   bungee   cords   for   similar purposes.   Stadtherr testified that when bungee


cords looked worn during his inspection, he would replace them before they broke, allowing the

jury to infer he would have done so if the cord at issue had appeared frayed or unsuitable. Both

Stadtherr and Mazza testified that they had never seen a bungee cord break while in motion.

Both testified that other than the day in question they had only seen bungee cords break while

being stretched to strap down the hoses.

        Further, APES and Stadtherr introduced evidence indicating that they had not created the

oil slick on the freeway. Although Mattson hotly disputed the testimony, Mazza denied that the

tanker truck carried oil; instead, he contended it carried only residual wastewater and could not

have spilled oil. Mazza went to where troopers had stopped Stadtherr the day of the accident and

testified that he saw no oil behind the truck. A witness testified that the slick smelled of diesel,

and APES introduced evidence that such material could not have come from its truck. Finally,

observers described a slick extending over 200 feet in length. APES introduced evidence that it

could not have dropped the volume of material comprising the slick with its broken hose, which

was vacuum sealed at both ends and contained only a minimum of residual material.




                                                         8
No. 43735 -0 -II



        APES also introduced evidence that it had complied with its statutory duties of care.

Lewis testified that any residual oil spilled by the tearing of the vacuum hose would not fall
within the ambit of the regulations Mattson cited as a basis for duties of care. Lewis also

testified that Stadtherr' s pre -trip inspection, which confirmed that the bungee cords appeared in

satisfactory condition, meant that APES had not violated any federal regulations. Finally, Lewis

opined that Stadtherr' s pre -trip inspection and his and Mazza' s actions after the hose came loose

also meant that Stadtherr and APES complied with applicable state law.

        With regard to Mattson' s common law negligence and res ipsa loquitor claims, APES and
                                                                                                  3
Stadtherr introduced    substantial evidence    that   they had   exercised    ordinary   care.       While


Mattson' s brief admirably summarizes the evidence supporting a conclusion that Stadtherr and

APES acted unreasonably, our role is not to reweigh the evidence. Instead we look to the

                            APES,           Mattson                     true   for her   challenges.     Stadtherr
evidence presented
                       by           which              must accept as




testified that he performed the required pre -trip inspection and, in so doing, made sure the

bungee cords were in satisfactory condition. Stadtherr testified that when bungee cords looked

worn during his inspection, he would replace them before they broke. Both Stadtherr and Mazza

testified that they had only seen a bungee cord break while being stretched to strap down the

hoses, and never seen a cord break while the truck was moving. Both also testified that the use

of bungee cords was common in their industry. Although the court did not instruct the jury that

industry practice could show ordinary care, the jury could have inferred that Stadtherr and APES

acted reasonably from this testimony.



3 Res ipsa loquitor allows the inference of negligence, meaning the failure to exercise ordinary
 care. To the extent that APES 's evidence shows it exercised ordinary care, it allowed the jury to
 decline to infer   negligence.
No. 43735 -0 -II


         All this evidence allowed the jury to find APES and Stadtherr had acted reasonably

                          of the   bungee           See Brotherton        Day &   Night Fuel Co., 192 Wash.
despite the    breaking                     cord.                    v.




362, 375 -78, 73 P. 2d 788 ( 1937) ( no       negligence when accident caused by mechanical failure);

Adams    v.   W. Host, Inc., 55 Wn. App. 601, 606, 779 P. 2d 281 ( 1989) ( "[         m] aterials can wear out



or   break   without negligence     being involved "). This evidence, along with the evidence indicating

that APES had not dropped the oil that caused Mattson' s crash, would also defeat Mattson' s

claim that she is entitled to judgment as a matter of law under res ipsa loquitur.

         With regard to Mattson' s claim that APES and Stadtherr acted negligently by violating

federal regulations, APES introduced substantial evidence that it complied with its statutory

duties. Lewis testified any oil spilling from the torn hose would not violate any of the statutes

Mattson cited. Further, Lewis testified that APES and Stadtherr had satisfied all their statutory

duties with the pre -trip inspection and their post- accident conduct. While Mattson' s expert

testified differently, we defer to the jury' s resolution of competing testimony. State v.

Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).            The testimony elicited by APES allowed

the jury to return a verdict that APES and Stadtherr had not committed negligence through the

breach of a statute.


         Finally, APES and Stadtherr introduced evidence indicating that they had not created the

oil slick on the freeway because of the volume and nature ofthe substance on the freeway. First,

 observers described a slick extending over 200 feet in length and APES introduced evidence that

 it could not have dropped that much material because the broken hose contained only a minimum

 of residual material. Further, although Mattson hotly disputed the testimony, Mazza denied that

 the tanker truck carried oil; instead, he contended it carried only residual wastewater and could


                                                          10
No. 43735 -0 -II



not have spilled oil. Finally, Mazza went to where troopers had stopped Stadtherr the day of the

accident and testified that he saw no oil behind the truck. This evidence precluded judgment as a


matter of law on any of Mattson' s theories of negligence: if the oil was not APES' s, APES was

not negligent.




         Substantial evidence supports the jury' s verdict. Therefore, the court did not err in

denying Mattson' s motions under CR 50 and CR 59.

                                      II. EQUITABLE DOCTRINES


         Mattson next contends that the trial court erred in refusing to preclude or estop APES

from arguing that the substance it spilled onto the highway did not proximately cause her

accident. We disagree.


         During the summary judgment proceedings before the first trial, APES asked the court to

assume, for purposes of the motions before it, that APES had dropped the oil that had caused

Mattson' s accident on the freeway. After the trial court granted summary judgment on liability

to Mattson, APES appealed. It assigned error to the trial court' s resolving breach and causation

as a matter of law. In an unpublished opinion we reversed the order of summary judgment on

these bases.


          Before the second trial, Mattson brought a motion in limine to exclude argument about

whether oil spilled   by APES   caused   Mattson' s accident 4   The trial court denied Mattson' s


4
    Mattson' s briefing claims that the trial court denied her "the opportunity to have her motion
heard" because the trial court told her initially to bring the motion as one in limine and then later
told her she needed to bring it as a motion for summary judgment. Br. of Appellant at 57. This
mischaracterizes the record. The trial court denied Mattson the chance to raise the issue as a
summary judgment motion because she failed to make the motion in a timely manner, but
nevertheless devoted significant time to hearing her motion in limine and denied the motion on
the merits.

                                                    11
No. 43735 -0 -II



motion, adopting APES' s argument, which it paraphrased when first discussing the issue:

                      In the prior summary judgment motion the issue came up, and the
         plaintiffs said       for the     purposes of —excuse me —              defendant said for the purposes
         of this summary judgment motion only we' re going to stipulate that there was oil
         on the road from the truck.
                      But of course, we' re not in that summary judgment now is their
         contention; and therefore, the burden of proof is on the plaintiffs to prove that the
         oil — there was oil on the road, that this oil is the causation for the ultimate
              if
           damages done to the plaintiff.


VRP (Mar. 21, 2012) at 7, 17 -19; VRP (Mar. 22, 2012) at 129 -30. As noted, APES introduced

evidence at trial indicating that it had not dropped the oil that caused Mattson' s accident.

           We review de novo the applicability of collateral estoppel or res judicata. Christensen v.

Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P. 3d 957 ( 2004); Atl. Cas. Ins. Co. v.

Or. Mut. Ins. Co., 137 Wn.             App.    296, 302, 153 P. 3d 211 ( 2007). We review a trial court' s


refusal to apply the doctrines of equitable or judicial estoppel for an abuse of discretion. Afinson
v.   FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P. 3d 289 ( 2012); Ford v.


Bellingham -Whatcom County Dist. Bd. ofHealth, 16 Wn. App. 709., 715, 558 P.2d 821 ( 1977).

A.         Res Judicata


           The doctrine of res judicata governs " the various ways in which a judgment in one action

will   have   a   binding    effect   in   another."    Hilltop Terrace Homeowner' s Ass 'n v. Island County,

126 Wn.2d 22, 30, 891 P. 2d 29 ( 1995) (                 citation omitted).         Res judicata bars relitigation of claims


already decided, meaning litigated to a judgment on the merits. Hilltop Terrace, 126 Wn.2d at
31;    DeYoung v.       Cenex Ltd., 100 Wn.            App.   885, 891 - 92, 1 P. 3d 587 ( 2000). We determine


whether a court has already decided a claim by examining whether the current and past actions

 share an "`      identity   of (1)   subject matter; ( 2) cause of action; (          3) persons and parties; and ( 4) the


 quality   of   the   persons   for   or against whom         the   claim   is   made. "'   Schroeder v. Excelsior Mgmt.


                                                                    12
No. 43735 -0 -I1



Grp., LLC,      177 Wn.2d 94, 108, 297 P. 3d 677 ( 2013) (     quoting Mellor v. Chamberlin, 100 Wn.2d

643, 645 -46, 673 P. 2d 610 ( 1983)).

          Res judicata applies to entire claims or affirmative defenses rather than to determinations

about    issues. Luisi Truck Lines, Inc. v. Wash. Utils. &      Transp. Comm' n, 72 Wn.2d 887, 894, 435

P. 2d 654 ( 1967) ( "[     t]he doctrine of res judicata is intended to prevent relitigation of an entire

cause of action and collateral estoppel is intended to prevent retrial of one or more of the crucial

issues   or   determinative facts determined in previous litigation."). Mattson' s claim concerns


causation, an element of a cause of action for negligence. We therefore analyze Mattson' s
                                                                                              5
argument under       the doctrine    of collateral estoppel rather   than   res   judicata.


B.        Collateral Estoppel


          Collateral estoppel bars relitigation of issues finally determined in one action in later

proceedings. Christensen, 152 Wn.2d at 306. To successfully assert collateral estoppel to bar an

opponent from relitigating an issue, a party must show

            1) the issue decided in the earlier proceeding was identical to the issue presented
          in the later proceeding, ( 2) the earlier proceeding ended in a judgment on the
          merits, ( 3) the party against whom collateral estoppel is asserted was a party to, or


          in privity with a party to, the earlier proceeding, and ( 4) application of collateral
           estoppel does not work an injustice on the party against whom it is applied.

Christensen, 152 Wn.2d at 307.


           However,    a   judgment loses its   preclusive effect   if it "is   vacated or reversed."      14A KARL


B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE § 35: 23,                          at   519, § 35: 34, at 557 ( 2d ed.


2009).     We reversed the summary judgment on which Mattson bases her claims of preclusion in


 5 Even if we did consider Mattson' s res judicata claim, we would have to reject it for the same
reason we reject her collateral estoppel claim. As discussed below, our vacation of the summary
judgment order nullified any preclusive effect it had and res judicata did not apply.
                                                         13
No. 43735 -0 -II



an unpublished decision and remanded for trial on the issue of liability. Liability encompasses

breach of a duty, but -for causation, and legal causation. See Mohr v. Grantham, 172 Wn.2d 844,
850, 262 P. 3d 490 ( 2011) (     citing Harbeson v. Parke- Davis, Inc., 98 Wn.2d 460, 475 -76, 656

P. 2d 483 ( 1983)).    Therefore, collateral estoppel does not bar APES from contesting the

causation issue.


C.      Judicial Estoppel


        Judicial   estoppel prevents "`        a party from asserting one position in a court proceeding and

later seeking   an advantage      by taking     a    clearly inconsistent   position. '   Afinson, 174 Wn.2d at 861


 quoting Arkison      v.   Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P. 3d 13 ( 2007)). Before


applying the doctrine to estop a party from asserting a position at trial, a trial court must consider

         1)   whether       the party'   s   later   position   is "   clearly inconsistent with its earlier
        position," (   2) whether acceptance of the later inconsistent position " would create
        the   perception      that   either    the first   or   the    second   court   was   misled,"   and (   3)
        whether the assertion of the inconsistent position would create an unfair
        advantage for the asserting party or an unfair detriment to the opposing party.

Afinson, 174 Wn.2d at 861 ( quoting Arkison, 160 Wn.2d at 538 -39).

        Mattson also fails to satisfy any of the elements of a judicial estoppel claim. As the trial

court recognized, APES specifically limited the concession at issue. It asked the court to assume

the oil causing the spill came from its hose only for purposes of deciding the two motions for

summary judgment. Arguing causation on remand is not inconsistent with that limited

concession. Additionally, we cannot say that any of the courts involved, the first trial court, our

court, or the trial court on remand, were misled. No reasonable person reading the concession

would believe it went beyond its limited scope, especially since APES denied causation in its

 answer. Finally, Mattson should have understood that APES would contest causation on remand,


                                                                14
No. 43735 -0 -II


given its statements and the instructions in our mandate. APES obtained no unfair advantage,

and the trial court did not abuse its discretion in declining to estop APES from arguing causation.

D.          Equitable Estoppel


            Mattson also invokes the doctrine of equitable estoppel. This doctrine applies where ( 1)

a           makes " an admission, statement, or act       inconsistent   with a claim   later   asserted," (   2)
    party


                               relies on   that   admission, statement, or act, and ( 3)   "   injury to the relying
another     party reasonably


party" results " if the court permits the first party to contradict or repudiate the admission,

statement or act."     Schroeder, 177 Wn.2d at 108 -09.


            Mattson fails to satisfy any of the elements of equitable estoppel. After denying it had

caused Mattson' s accident in its complaint, APES asked the trial court to accept as true

Mattson' s claim that the ruptured hose spilled the oil that caused her accident for purposes of the

motions for summary judgment. As the trial court recognized, APES' s concession, by its

explicit terms, did not exist outside of the trial court' s consideration of the summary judgment

motions. APES, therefore, did not take an inconsistent position when it contested causation on

remand. Further, Mattson could not have reasonably relied on APES 's representation given that

the terms of that representation warned her that APES could contest causation in other contexts.

Finally, APES is not repudiating its earlier representation. Again, APES asked the trial court to

accept Mattson' s claim as true for a limited set of circumstances no longer applicable at the end

of the summary judgment proceedings. The trial court did not abuse its discretion in declining to

equitably estop APES from arguing causation.




                                                           15
No. 43735 -0 -II


                                            III. JURY INSTRUCTIONS


         Mattson next contends that the trial court erred in its instructions to the jury. She raises

six arguments    in this   regard: (   1) the court' s jury instruction 16 misstated the law concerning

negligence   through    violation of a statute, (   2) jury instruction 16 conflicted with the instruction on

res ipsa loquitur, (3) the trial court erred in declining to instruct the jury on APES' s nondelegable

duties under federal law, (4) the court erred in refusing to instruct the jury that it should consider

only the fault   of   APES   and   Stadtherr   when   deliberating, ( 5) the trial court erred in failing to give

a spoliation instruction, and (6) the trial court erred in refusing to instruct the jury that it had

determined APES had committed negligence as a matter of law under the doctrine of res ipsa

loquitur. We find no error.


          We apply two different standards of review to challenges to jury instructions. We review

a trial court' s decision on the specific wording ofjury instructions or a trial court' s refusal to

give an   instruction for    an abuse of   discretion. Hue      v.   Farmboy Spray Co., 127 Wn.2d 67, 92

n.23,   896 P. 2d 682 ( 1995);     Goodman v. Boeing Co., 75 Wn. App. 60, 68, 877 P.2d 703 ( 1994).

We review instructions de novo for errors of law. Afinson, 174 Wn.2d at 860. Instructions are

insufficient, and therefore legally erroneous, ifthey prevent the parties from arguing their

theories of the case, mislead the jury, or, when taken as a whole, fail to properly inform the jury

of the applicable law. Afinson, 174 Wn.2d at 860.

A.        Jury Instruction 16: Violation of Statute

          Mattson maintains that the trial court erred in giving its instruction 16 instead of her

proposed instruction 22 regarding the violation of a statute or regulation. Mattson alleges that




                                                           16
No. 43735 -0 -II



the instruction given contained a " poison pill" that the evidence at trial did not support, rendering

it legally erroneous. Br. of Appellant at 67. We disagree.

           Plaintiffs    proposed   instruction 22   provided    that "[   t]he violation, if any, of a statute,

ordinance, administrative code, or Federal Regulation is not necessarily negligence, but may be

considered     by   you as evidence     in   determining   negligence."      CP at 1204. This instruction


consisted of the standard language from the civil pattern jury instructions. See 6 WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 60. 03, at 499 ( 6th ed. 2012).

           Based on APES' s proposed jury instructions, the trial court instead gave instruction 16,

which contained all of the language in plaintiff' s proposed instruction 22, but included the

optional language from the pattern instruction. The instruction read:

                    The    violation,   if any,of a statute or regulation is not necessarily
           negligence, but may be considered by you as evidence in determining negligence.
                   Such a violation may be excused if it is due to some cause beyond the
           violator' s control, and that ordinary care could not have guarded against.

CP   at   2645;   see   6 WASHINGTON PRACTICE,        supra, §   60. 03, at 499..


           Both Mattson' s proposed instruction and the. instruction given by the trial court

concerned the former doctrine of negligence per se. Prior to 1986, a plaintiff could show


negligence by demonstrating a statutory violation, since the common law considered statutory

breaches conclusive evidence of negligence. See Mathis, 84 Wn. App. at 416 -17. In 1986 the

legislature, with exceptions not relevant here, abolished the doctrine of negligence per se and


provided that a statutory breach served as evidence of negligence, rather than conclusive proof of

it. LAWS     OF   1986,   ch.   305, § 910, codified as RCW 5. 40. 050.


           We described the " practical effect of RCW 5. 40. 050" as




                                                            17
No. 43735 -0 -II


            eliminat[   ing]   what        might    be    called   the `   strict   liability'    character of statutory
            violations under         the   old negligence per se           doctrine, but ...        allow[ing] a jury to
            weigh the violation, along with other relevant factors, in reaching its ultimate
            determination of liability.

Doss   v.   ITT Rayonier, Inc., 60 Wn.              App.    125, 129 -30, 803 P. 2d 4 ( 1991).            While weighing these

factors, " the     trier of fact may find a statutory violation is not negligence where the violation is

due to some cause beyond the violator' s control, and ordinary care could not have guarded

against     the   violation."       Hansen    v.   Friend, 118 Wn.2d 476, 483, 824 P. 2d 483 ( 1992).                  Stated


otherwise, the jury must determine whether the defendant, despite the statutory violation,

exercised ordinary care. Mathis, 84 Wn. App. at 419. The optional language in the pattern

instruction       reflects   this   question.      See 6 WASHINGTON PRACTICE, supra,                  §   60. 03, at 499.


            Mattson argues that the trial court erred because APES could not meet the requirement

that the " violation be due to ` some               cause   beyond the       violator' s control. '       Br. of Appellant at 67.


She argues, in effect, that only emergency situations render the full text of the pattern instruction

appropriate, citing commentary in the pattern instructions and Hood v. Williamson, 7 Wn. App.

355., 362, 499 P. 2d 68 ( 1972) ( "[ t]he                most common instance where a violation of a statute has

been held to be due to a cause beyond the violator' s control, which reasonable prudence could


not   have    guarded against,        is   where    the   violation   is   excused    by   an    emergency. "). While Mattson


is correct that an emergency is the most common reason for fording a statutory violation beyond

the. violator' s control, the fact that it is the most common demonstrates that an emergency is not

the exclusive reason for finding a violation beyond the violator' s control.

            APES and Stadtherr introduced evidence that supported an argument that the failure of

the bungee cord was beyond their control. This evidence included Lewis' s testimony about

 APES' s and Stadtherr' s compliance with federal and state regulations, Stadtherr' s testimony that

                                                                      18
No. 43735 -0 -II



he inspected the bungee cord and that it appeared in good working condition, his testimony that

he would replace bungee cords that did not appear to be in good working condition, and the

testimony from both Stadtherr and Mazza that they had never seen a bungee cord break while in

motion. From this the jury could infer that Stadtherr exercised ordinary care and that the

breaking ofthe bungee cord was a simple mechanical failure that could occur "without any fault
on   the part   of   the   person   in   charge of the vehicle."   Brotherton, 192 Wash.   at   375. With this


evidence, the trial court was required to give the optional language in the instruction regarding a

violation beyond the control of APES and Stadtherr so they could argue their theory of the case.

Afinson, 174 Wn.2d at 860.


         We find no error in the trial court' s decision to use the full pattern instruction.

B.       Conflict between Instruction 16 and Res Ipsa Loquitur Instruction 12

         Mattson also contends that instruction 16 contradicted instruction 12, the res ipsa loquitur

instruction, and negated the jury' s ability to apply res ipsa loquitur to her claim. We disagree.

         As set out above, instruction 16 provided:


                      The    violation,      if any, of a statute or regulation is not necessarily
         negligence, but may be considered by you as evidence in determining negligence.
                 Such a violation may be excused if it is due to some cause beyond the
         violator' s control, and that ordinary care could not have guarded against.

CP at 2645. Instruction 12 provided:


          If you find that:
                       1) the collision in this case is of a kind that ordinarily does not happen in
                      the absence of someone' s negligence; and

                       2) the collision was caused by an agency or instrumentality within the
                      exclusive control of the defendant( s);
          then,.in the absence of satisfactory explanation, you may infer, but you are not
          required to infer, that the defendant( s) were negligent.


 CP at 2614.


                                                              19
No. 43735 -0 -II



           Mattson alleges that the language added to instruction 16 at APES' s request negated the


jury' s ability to find negligence under res ipsa loquitur. She cites two cases in support of her

contention that the court erred by giving irreconcilable instructions, Galvan v. Prosser Packers,

Inc., 83 Wn.2d 690, 521 P. 2d 929 ( 1974) and Hall v. Corporation of Catholic Archbishop of

Seattle, 80 Wn. 2d 797, 498 P. 2d 844 ( 1972). Neither supports her claim.


           In Galvan, a negligence and products liability case, the court gave an instruction on the

manufacturer' s liability, which depended partly on the defective product proximately causing the

plaintiff' s   injury.   83 Wn.2d   at   691 -93.   The only definition of proximate cause came in the

court' s general    instructions   on negligence.      Galvan, 83 Wn.2d            at   693. The Galvan court held the


trial court erred because foreseeability meant different things in negligence and strict liability

claims and the general negligence instruction defined " foreseeability in the context of strict

liability   in too broad   a sense"      Galvan, 83 Wn.2d          at   693.   Because the jury would have used the

broad general negligence definition of foreseeability to evaluate the products liability claim, the

Galvan court held that the trial court gave inconsistent and prejudicial instructions.

           In Hall, a negligence and negligence per se suit, the trial court instructed the jury that the

breach of a statute was negligence, and instructed it that negligence per se " ha[ d] the same effect

as   any   other act of negligence."       80 Wn.2d    at   803.    A related instruction informed the jury that

the Seattle building code imposed certain statutory duties on landowners. Hall, 80 Wn.2d at 798.

However, a fourth instruction, given in the context of general negligence, informed the jury that

a property


            owner is under no duty to reconstruct or alter the premises so as to obviate known
            and obvious dangers, nor is he liable for injury to an invitee resulting from a
            danger which was obvious or should have been observed in the exercise of
            reasonable care.



                                                              20
No. 43735 -0 -II




Hall, 80 Wn.2d       at   803.   The court held that the trial court' s instruction that the jury should treat

general and statutory negligence the same meant that the fourth instruction essentially told the

jury to find no liability under the then existing law of negligence per se despite the breach of a

statutory    duty.   Hall, 80 Wn.2d      at   803.   The court reversed based on the contradictory

instructions. Hall, 80 Wn.2d at 803 -04.


        Unlike the instructions in Galvan and Hall, instructions 12 and 16 here do not create an


error when read together. Instruction 16 allowed, but did not require, the jury to excuse any

statutory violation. It described the circumstances under which the jury could conclude that,

despite a statutory violation, APES and Stadtherr had not acted negligently. Similarly, as

discussed above, res ipsa loquitur allows, but does not require, an inference of negligence.

Instruction 12 properly described the circumstances where the jury could conclude that

Mattson' s accident spoke for itself in terms of showing APES 's and Stadtherr' s negligence. The

jury could freely conclude that APES and Stadtherr were negligent under one theory and not the

other, negligent under both, or not negligent under either. There is no conflict between the

instructions.


C.      Proposed Instruction 14: Nondelegable Duty


        Mattson next contends that the trial court erred by refusing to give her proposed

instruction 14. That instruction would have informed the jury that federal regulations imposed a

nondelegable       duty requiring     APES to. prevent its " load   or cargo"   from " drop[ ping],   spill[   ing],   or




leak[ ing]   ...   on   the roadway."    CP at 1196.


        Mattson offers no reason why the trial court abused its discretion in failing to give this

instruction other than stating that testimony supported it. While witnesses did testify about the

                                                            21
No. 43735 -0 -II



nondelegable nature of the duty, APES did not contest the issue and giving the instruction would

therefore have constituted error. State v. Fernandez, 29 Wn. App. 278, 281, 628 P. 2d 827 ( 1981)

trial   court errs   by   giving   an   instruction   on an undisputed     issue). Further, we consider the


sufficiency ofjury instructions as a whole. Instructions 13 through 19 spoke of the duties owed

in driving or securing loads on a vehicle. Instruction 4 informed the jury that the law of agency

imputed any breach of these duties by Stadtherr to APES. The jury instructions as a whole

allowed Mattson to argue her theory of nondelegability, and the trial court did not abuse its

discretion in declining to give proposed instruction 14.

D.        Instruction 5:     Fault of Other Entities


          Mattson next alleges that the trial court erred in giving its instruction 5 in the place of her

proposed instruction 3A. These instructions concerned the fault of entities other than the

defendants. Mattson contends that the trial court' s instruction allowed APES to impermissibly

argue that some other entity caused Mattson' s collision. We find no abuse of discretion in giving

instruction 5 and declining to give Mattson' s proposed instruction.

          As discussed, Mattson argued that the trial court should prevent APES and Stadtherr from

contesting that oil it spilled had caused her accident on remand. The trial court, however,

refused to preclude or estop APES and Stadtherr from doing so. Mattson then moved to restrict

APES' s ability to argue causation in other ways. She moved in limine for an order stating that

     i]t is ORDERED, ADJUDGED, AND DECREED that the Plaintiffs motion to preclude any

argument, reference, or insinuation regarding any comparative fault of the Plaintiff or any other

third party   apart   from the     named     Defendant'   s shall   be   and   is   hereby   GRANTED."   CP at 1460.




                                                             22
No. 43735 -0 -II



          When the parties met with the trial court to discuss the motions in limine, APES and

Stadtherr objected to Mattson' s motion for fear that it would foreclose their ability to argue they

were not at fault, resulting in the following exchange:

              Mattson'    s counsel]:    Your honor, there' s no evidence that there are any other
          unnamed parties.                   even believe they pled that.
                                      I don' t                             I have to look up their
          answer. That' s never been an issue.
          And that' s the whole point is that, oh, well, there' s this other random person that
          could be responsible for this collision. You don' t get to bring that up the day
          before trial. That' s —
              APES'   s          It' s not the day before trial. If we didn' t leave a 200 -foot
                          counsel]:

          diesel black oil slick on the roadway, somebody did.
              Mattson'         It' s either that they' re negligent or they' re not. That' s what
                          s counsel]:

          it comes down to. They don' t get to point to an absent person.
                 And again, we' re getting back into the speculation [ about other causal
          actors],    and this is the whole reason [ for the motion in limine.]
              APES'   s counsel]:     It' s not pointing to an absent person to say that we didn' t
           do it, and if it' s there somebody else did it. I mean, that' s not pointing to the fault
           of an unnamed party.
            Mattson' s counsel]:          Not only that, Your Honor. The rule actually-requires you
          name     a specific unnamed        party. They haven' t done that. There isn' t anybody
           else.   This is — and        I move to dismiss any claim that they' re going to attempt to
           make right now.

              The Court]:      Well, that' s not their point. At least that' s not what I heard arguing.
           We' re back to where you were before.
              APES'   s counsel]:         Exactly. Ijust don' t want to be foreclosed by this from you
           exercising your discretion as the evidence comes in.
              The Court]:      Right.


VRP      at    119 -21.     The trial court modified Mattson' s proposed order so that it proscribed


    argument, reference, or insinuation regarding any comparative fault of the Plaintiff or any other
                                                                                                           6
named     third party      apart   from the   named   Defendants."   CP   at   1460 ( emphasis   added).




6
     Mattson' s brief repeatedly quotes the language of the trial court' s order, but modifies it so that
it   reads "[ un] named"      instead    of "named."    Br. of Appellant at 78, 93 n.20; CP at 1460. The trial
court used " named" in the order quite deliberately and there is no reading of the record that
renders Mattson' s alteration faithful to what happened at trial.

                                                            23
No. 43735 -0 -II



             Based on her proposed order on the motion in limine, Mattson' s proposed instruction 3A

read:




                      You are instructed that the Court has determined that Plaintiff is not in any
             way at fault for this collision, nor are there any unnamed parties that are in any
             way responsible for this collision, and therefore, you are not to consider the fault
             of anyone other than the named Defendants in determining your verdict in this
             case.



CP   at   1440.      Given its ruling in limine, the trial court instead gave its instruction 5, which

provided       only that "[ y] ou   are instructed that the Court has determined that Plaintiff is not in any

way     at   fault for this   collision."   CP at 2634.


             Mattson claims that the failure to give proposed instruction 3A constituted error because

it left her unable to argue that no other entity could have caused her accident, meaning the jury

instructions prevented her from arguing her theory of the case. Mattson analogizes her case to

Izett   v.   Walker, 67 Wn.2d 903, 410 P. 2d 802 ( 1966).       This analogy, however, is not sound.

             In Izett the plaintiff made an emergency stop; the defendant failed to do so and rear -

ended the plaintiff. 67 Wn.2d at 904 -06. The trial court found the defendant negligent as a

matter of law and, based on this finding, refused to instruct the jury, in accordance with the

plaintiff's request, that the defendant was negligent because the law required following drivers to

maintain sufficient distance in case of an emergency stop. Izett, 67 Wn.2d at 906 -07. The jury

returned a verdict for the defendant, apparently based on the plaintiff' s contributory negligence

in making the emergency stop or because the jury found the plaintiffs emergency stop had

proximately caused the accident. Izett, 67 Wn.2d at 904, 908. The plaintiff appealed, claiming

that the instructions did not allow him to make his case that the defendant was negligent and that

 he had no comparable fault despite his emergency stop. The Izett court agreed and held that the


                                                           24
No. 43735 -0 -II



failure to give the instruction on the defendant' s negligence required reversal of the verdict

because " without this instruction [ on the defendant' s statutory duty to follow at a safe distance]

the jury could not properly evaluate any claims of contributory negligence and proximate cause

on   the   part of [the plaintiff' s] conduct."    Izett, 67 Wn.2d at 906 -07.


           This case differs markedly from Izett. Unlike the trial court in Izett, the trial court here

gave the jury the instructions necessary for Mattson to make her case to the jury. The trial court

instructed the jury on APES and Stadtherr' s common law and statutory duties, the standard of

conduct they needed to adhere to in order to satisfy those duties, and proximate cause. These

instructions allowed Mattson to argue her theory of the case, that she experienced an injury

                                     that APES         Stadtherr unreasonably             to fall          I-
                                                                                                            5.   The
proximately      caused   by   oil               and                            allowed             onto




evidence in connection with the instructions on proximate cause allowed her to argue that APES

had caused the accident and that no other entity had done so. Mattson' s proposed alternative

instruction, on the other hand, directly contradicted the order in limine. The trial court did not

err in issuing instruction 5 instead of proposed instruction 3A.

E.          Proposed Instruction 23A: Spoliation


            Mattson next argues that the trial court erred in refusing to give a spoliation instruction.

She contends that APES' s discarding of the broken bungee cord and truck hose, disposing of the

truck before she could take pictures of it, and failure to retain the pre- and post - rip reports
                                                                                    t

constituted the willful destruction of evidence and that the trial court should have instructed the

jury it could infer APES destroyed evidence damaging to its defense.




                                                            25
No. 43735 -0 -II



        Turning first to the facts, after the incident Stadtherr put the broken bungee cord in the

truck along with the broken hose. A day later, he disposed of both because they were " broken"
and " useless."    VRP (Apr. 2, 2012) at 869 -70; VRP (Mar.29, 2012) at 587.


        APES retained the pre- and post - rip reports for several years after the accident. The
                                        t

experts at trial testified that APES had a statutory duty to preserve these reports for some time,

although the testimony conflicted as to whether that duty required retention for three or six

months. At some point in 2006, APES moved to a paperless file retention system due to office

space constraints. APES apparently planned to scan all of its older files to store them

electronically before disposing of the physical copies. However, this effort required extensive

time and effort and APES abandoned it before scanning the files relevant to Mattson' s suit, the

2003 files. By the time Mattson asked for the files, APES had purged them.

        The parties contested whether APES knew of Mattson' s suit and should therefore have

retained the trip logs until the completion of the litigation. Mattson did not file suit until 2006;

APES claimed that it had no knowledge of any possible litigation until then. Mattson, however,

argued that APES was on notice because it had received a traffic ticket fining it for causing her

accident.




        In 2007, after filing suit, Mattson asked APES to set up the tanker truck in the

configuration used the day of the accident so that she could photograph it. Mazza agreed on

behalf of APES. Mattson sent an investigator out to take the photos. Apparently, the

investigator was ejected from APES' s property after an employee called Mazza to report the

incident and Mazza became upset, feeling that this violated the agreement with Mattson. Mazza

explained that APES had not prepared the truck and that Mattson' s investigator was taking


                                                  26
No. 43735 -0 -I1


inaccurate photographs. APES sold the truck soon after the incident and before Mattson ever

obtained photographs.




         At trial, Mattson moved for a spoliation instruction. After hearing significant argument

and testimony in and out of the presence of the jury, the trial court declined to give the

instruction.


          Spoliation    entails "   the intentional destruction       of evidence."    Tavai v. Walmart Stores,


Inc.,   176 Wn. App. 122, 134, 307 P.3d 811 ( 2013).

            W]here relevant evidence which would properly be part of a case is within the
          control of a party whose interests it would naturally be to produce it and he fails
          to do so, without satisfactory explanation, the only inference which the finder of
          fact may draw is that such evidence would be unfavorable to him."

Tavai, 176 Wn. App. at 134 -35 ( quoting Pier 67, Inc. v. King County, 89 Wn.2d 379, 385 -86,
573 P. 2d 2 ( 1977)).     Courts must determine whether to instruct the jury on the unfavorable

inference   allowed     by   spoliation   based on two factors: " the potential importance or relevance of


the missing    evidence" and "       the culpability   or   fault   of the adverse   party."   Tavai, 176 Wn. App. at

135. We review a trial court' s refusal to give a spoliation instruction for an abuse of discretion.


Tavai, 176 Wn. App. at 135.

          The trial court reasonably determined that no spoliation occurred regarding the bungee

cord and hose. Courts have repeatedly held that the cumulative or insignificant nature of

physical evidence weighs against a finding of spoliation. Ripley v. Lanzer, 152 Wn. App. 296,

326, 215 P. 3d 1020 ( 2009) ( no          spoliation where testimony provides the same information offered

by the   evidence);    Homeworks Constr., Inc. v. Wells, 133 Wn. App. 892, 899, 138 P.3d 654

 2006) ( testimony      providing same information as evidence weighs against a finding of spoliation

under    the first   element).   Here, the trial court determined that the physical evidence was

                                                              27
No. 43735 -0 -II



cumulative with testimony or, given other factors, insignificant. Stadtherr admitted that the

bungee cord had ruptured and allowed the hose to escape its housing. Stadtherr also testified that

the hose, after coming loose, had dropped down, torn open on contact with the truck' s tires, and

dragged behind him while he drove on I - Finally, no one took samples from the oil slick on 1-
                                       5.

5, so examination of the hose would likely not answer the question of whether the oil came from

APES' s truck.


        The trial court reasonably determined that no spoliation occurred with regard to the

disposal of the truck. The trial court determined that APES had some culpability for the lost

evidence because Mattson had specifically asked for permission to photograph the truck and,

while Mattson had not complied with APES' s procedures for taking these photos, APES had sold

the truck before letting Mattson take the pictures. We agree that APES' s decision to sell the

truck before Mattson took her pictures is troubling. However, the trial court noted that the

plaintiffs had other photos and from them everyone seemed to understand what the truck looked

like on the day of the accident. Again, the cumulative nature ofthe evidence supported the trial

court' s refusal to give a spoliation instruction.


        Finally, the trial court reasonably determined that no spoliation occurred with regard to

the pre- and post -rip reports. A party need not show bad faith to establish spoliation under the
                  t

 second spoliation factor, the factor concerned with the culpability of the adverse party. Wells,

 133 Wn. App. at 900. However, where no bad faith is shown, the second spoliation factor only
 weighs against a   party   who violates a   duty to preserve the   evidence.   Wells, 133 Wn. App. at

 900. The trial court found no culpability on APES' s part because it had preserved the reports




                                                      28
No. 43735 -0 -II



long after they needed to under federal and state law and had no specific knowledge of any suit

filed by Mattson when they disposed of their files. The record supports this determination.

F.        Instruction 12: Res Ipsa Loquitur


          Mattson also alleges that the trial court erred by giving instruction 12 instead of her

proposed instruction 7. Mattson contends that the evidence entitled her to have the jury

instructed " on the doctrine of Res Ipsa Loquitur as a matter of law versus instructing the jury" to

apply the doctrine permissibly. Br. of Appellant at 85. Mattson is mistaken.
          Mattson' s original proposed instruction on res ipsa loquitur read:

          The Court has determined that
                        1) the accident in this case is of a kind that ordinarily does not happen in
          the absence of someone' s negligence;

                    2) the accident was caused by an agency or instrumentality within the
           exclusive control of the defendants; and
                        3)   the accident was not in any way due to an act or omission of the
          plaintiff;

           Therefore, in the absence of satisfactory explanation, you may infer, but you are
          not required to infer, that the defendant was negligent.


CP at 1197. The trial court rejected this instruction, and Mattson proposed the alternate res ipsa

instruction given by the court as its instruction 12. As noted, this instruction, taken from the

pattern instructions read:


           If you find that:
                        1) the accident in this case is of a kind that ordinarily does not happen in
           the absence of someone' s negligence;

                        2) the accident was caused by an agency or instrumentality within the
           exclusive control of the Defendant( s).
                    Then, in the absence of satisfactory explanation, you may infer, but you
           are not required to infer, that the Defendant( s) were negligent.


CP   at   2641;   see    6 WASHINGTON PRACTICE,     supra, §   22. 01, at 255.




                                                        29
No. 43735 -0 -II



        The applicability of the doctrine of res ipsa loquitur is a question of law. Lein, 169

Wn.2d at 889. As noted, res ipsa loquitur allows the jury to infer negligence where

         1) the accident or occurrence that caused the plaintiff' s injury would not
        ordinarily happen in the absence of negligence, ( 2) the instrumentality or agency
       that caused the plaintiff' s injury was in the exclusive control of the defendant, and
         3) the plaintiff did not contribute to the accident or occurrence."


Lein, 169 Wn.2d at 891.


        The trial court' s role was to determine whether Mattson met her burden of production on

the res ipsa loquitur issue. See Lein, 169 Wn.2d at 889. The trial court determined that she did

so and gave an instruction on res ipsa loquitur. As discussed above, the evidence did not entitle

Mattson to judgment as a matter of law on the issue of negligence. The jury therefore needed to

resolve questions of fact and it was for the jury to determine whether Mattson' s evidence

satisfied her burden of proof. See Lein, 169 Wn.2d at 895. Mattson' s proposed instruction

falsely instructed the jury that the trial court had already determined that the central elements of

res ipsa loquitur were met. By giving this instruction the trial court would have impermissibly

usurped the jury' s function. The trial court' s rejection of this invitation was not an abuse of

discretion.


                                 IV. COUNSEL MISCONDUCT


        Mattson also alleges that misconduct by defense counsel requires a new trial under CR

59( a). Mattson alleges that APES' s counsel made repeated speaking objections, argued that an


unnamed party caused Mattson' s accident in spite of the court' s order in limine, argued about the

circumstances of Mattson' s retention of an counsel in spite of the court' s order in limine, and

made an improper comment during closing argument. We find no grounds for reversing the

jury' s verdict.

                                                   30
No. 43735 -0 -II



          CR 59( a)( 2) allows a " new trial where misconduct of the prevailing party materially

affects   the   substantial rights of      the   losing   party." Teter v. Deck, 174 Wn.2d 207, 222, 274 P. 3d


336 ( 2012). Relief based           on a counsel misconduct claim requires a               showing that "( 1) the


conduct complained of         is   misconduct, ( 2)       the   misconduct    is   prejudicial, (   3) the moving party

objected to the misconduct at trial, and (4) the misconduct was not cured by the court' s

instructions."     Teter, 174 Wn.2d at 226. We review a trial court' s decision on a motion for a new


trial under CR 59( a)( 2) for an abuse of discretion. Teter, 174 Wn.2d at 222. We apply a

specialized test for an abuse of discretion and ask whether the misconduct " has [ created] such a


feeling   of prejudice ...        in the minds of the jury as to prevent a litigant from having a fair trial."

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


A.        Speaking Objections

          Mattson first alleges that APES' s counsel committed misconduct by repeatedly making

speaking    objections.      We agree, but nonetheless deny Mattson' s motion for a new trial because

we defer to the trial court' s determination that the objections did not prejudice her.

          Counsel commits misconduct by attempting to present the jury with inadmissible

evidence or      impermissible       argument.      Teter, 174 Wn.2d         at   223, 224 n.12.     Speaking objections

can " expos[ e] the jury to inadmissible evidence and inappropriate argument" and therefore

constitute misconduct. Teter, 174 Wn.2d at 224 n. 12. APES' s counsel repeatedly made

speaking objections and the trial court admonished him for doing so.

          However, the trial court specifically determined that the speaking objections did not

create prejudice .sufficient          to   warrant a new        trial.   Because the trial court has the best vantage


point to evaluate the prejudicial effects of any misconduct, we give deference to ,its findings


                                                                  31
No. 43735 -0 -II



concerning     prejudice.    Teter, 174 Wn.2d at 223 ( citing State v. Lord, 117 Wn.2d 829, 887, 822

P. 2d 177 ( 1991)).    Given this deference, and because the speaking objections do not seem to

have exposed the jury to any prejudicial and inadmissible evidence, we find no abuse of the trial

court' s   discretion in    denying   Mattson'   s motion   for   a new   trial   on   this basis.   See Teter, 174


Wn.2d at 223.


B.         Violation of Order on the Motion in Limine About Other Causal Actors

           Mattson next claims misconduct through violations of the trial court' s order forbidding

insinuating fault by       third   parties   in causing Mattson' s   accident.         The trial court allowed the


argument Mattson now objects to and we find no misconduct.


           Mattson sought an order in limine preventing APES and Stadtherr from arguing they had

not caused her accident. As discussed above, the court rejected Mattson' s proposed language

and instead ordered that the defendants could not argue that " named" third parties caused


Mattson' s accident, allowing the defendants to argue unnamed third parties had done so. Thus,

the explicit terms of the order at issue allowed the argument that Mattson objects to, that APES

did not cause the oil slick and so unnamed parties must have done so. There was no misconduct,

and the trial court did not abuse its discretion in denying Mattson' s motion for a new trial.

C.         Motion in Limine Regarding Mattson' s Retention of Her Counsel

           Mattson next alleges misconduct through violations of the trial court' s order forbidding

discussion of the circumstances under which she retained her counsel. Again, the trial court

explicitly permitted APES to introduce the argument and evidence Mattson now objects to.

Again, we find no misconduct.




                                                         32
No. 43735 -0 -II


         Before        trial,     Mattson            sought an order in limine forbidding discussion of the

circumstances of her hiring of her counsel. The trial court granted the order, which excluded

         evidence regarding the circumstances surrounding Plaintiff' s hiring counsel,
         including, but not limited to, any professional, business, familial, or friendship
         relationships          between Plaintiff(s)             and/ or       Plaintiffs'    witnesses . . .    for [ the]
         purposes of trial testimony with the possible exception of [the] spoliation issue
         outside the presence of the jury.

CP at 1459. Mattson' s counsel, in her opening statement, discussed the testimony the jury would

hear   and    the   physical evidence           it   would not   have.       Specifically, she stated that

          w]hat you won' t have is the ruptured hose because it was thrown away and
         destroyed by the defendants.

                      We     won'    t have the bungee          cord    that broke because that         was never —well,

         I don' t know if it was destroyed or thrown away.
                      And     one    of   the    other      things that      you won'     t have ...    is ...   a pre - rip
                                                                                                                       t
         inspection        report....           That'   s   been thrown away.             We don' t have that from the
         date to show what they did or did not do on that day. And that was destroyed.

VRP ( Mar. 28, 2012)            at   448.   Six sentences into his opening statement, APES' s counsel

addressed the missing evidence, stating that " after [the] accident almost three years pass until my

client was sued. And we' ll leave it to your decision as to whether or not that explains why some

things   we'   d    dearly   like to have for         you    don' t   exist"    VRP (Mar. 28, 2012) at 452. When counsel


again referenced the destroyed evidence, Mattson' s counsel objected. APES' s counsel

responded that Mattson' s counsel had opened the door. The trial court overruled the objection

on that basis. VRP ( March 28, 2012) at 468, 615 -16.


          During the presentation of evidence, APES' s counsel asked Mattson how long it was
after   the   accident     that   she spoke with counsel about                   filing   suit.   She answered that she had done

 so within six months, but admitted that she did not know if counsel had asked APES to preserve




                                                                        33
No. 43735 -0 -II



their   records.     Mattson' s counsel later sought a curative instruction outside the presence of the


jury:

                   Mattson'     s counsel]:           Your Honor, ...
                                                             I specifically objected —
          and I apologize, but I had to make numerous objections, because .. .
           APES' s counsel] went into when did you hire counsel and was it our
          firm. None of that questioning is appropriate. But it certainly wasn' t
          appropriate in light of the fact that I made a specific motion and the Court
          ordered specifically that nothing going into the circumstances of hiring
          counsel would         be discussed      or would     be   prone   to questioning....     It was a
          violation of the order in limine.
                   The Court]: [           asking APES' s counsel for his argument].
                   APES'   s counsel]:                I' m sorry, Your Honor.         I don' t believe it
          was a violation of the order.
                   I didn' t   ask   about      the   circumstances       surrounding it.      All I asked

          about was the timing.

                    The Court]:         That' s how I read the order, too. I was aware of the
          order, but I didn' t think it had to deal with the circumstances of hiring of
          counsel; circumstances were they brothers, were they cousins, did you
          know them from some other source, those kinds of things were the
          circumstances.         What   are     the terms     of your    fee   agreement.   I read it, and I
             I     read   that    exactly       what    I    intended, which was those kind              of
          circumstances are certainly not relevant to anything.

VRP (Apr. 2, 2012) at 916 -19. The trial court denied Mattson' s request for a curative instruction

on the ground that there was no violation of the order in limine.

          Again, the trial court specifically allowed APES to make the arguments and admit the

evidence that Mattson now objects to. Even if we read the order in limine as forbidding evidence

or argument about when Mattson first saw counsel, the trial court determined that Mattson

opened the door to it, rendering the evidence admissible, with her argument that APES had

destroyed    evidence.         See State   v.   Young,      158 Wn. App. 707, 719, 243 P. 3d 172 ( 2010) ( a party


 can open   the    door to the    other    party admitting       otherwise      inadmissible   evidence).   APES' s


 counsel committed no misconduct.




                                                                    34
No. 43735 -0 -II



D.      Closing Argument

        Finally, Mattson alleges that a statement by APES' s counsel during closing argument

requires a new trial.. We agree that APES' s counsel committed misconduct but disagree that the

misconduct entitles Mattson to a new trial.


        Closing arguments in this case apparently stretched on for some time, and the trial court

urged Mattson' s counsel to wrap things up on several occasions. After one of these admonitions,

the following exchange occurred:

                   Mattson'    s counsel] :   Let me just finish up, if I may, Your Honor.
                   Trial   court] :           Quickly.
                   Mattson'    s counsel]:    The preponderance of the evidence in this
        case is, ladies and gentlemen, more probably true than not true that they
        dropped the oil and they caused this accident, and we' re here asking you
        to finally, after nine years, assess full responsibility and accountability.
                   That' s what we call atonement. Atonement is not just to say I did
        it. It' s to take responsibility for it. That' s why we need you.
                  And you know, the last thing I' ll show you, and I don' t need to
        make —     mean to make light of things, but —
                   APES' s counsel]: You know, I thought we were done here, Your
        Honor. He' s long past his time that you allotted both of us.
                   Mattson'    s counsel]:    Your Honor, he doesn' t like my argument so
        he' s trying to interrupt me.
                 Excuse me, if I may.
                   APES'     s counsel] :     I'm hungry.
                   Mattson' s    counsel] :   Too bad if you want to go. This is important
        to my client, sir.

VRP (Apr. 4, 2012) at 1218 -19.


        APES'   s counsel committed misconduct when           he   stated, "   I' m   hungry." VRP (Apr. 4,

2012) at 1219. The statement was, charitably viewed, unprofessional. Mattson did not object,

however, and a curative instruction telling the jury to disregard the remark could have obviated

any prejudice it engendered. Mattson' s failure to object under those circumstances waives any

claim of error. Teter, 174 Wn.2d at 226. Further, the trial court found that the statement did not

                                                        35
No. 43735 -0 -II


prejudice Mattson such that it should grant her a new trial. Again, the trial court saw the

exchange, as well as the jurors' reaction to it, first hand and we defer to its determinations for

this reason. Teter, 174 Wn.2d at 223 ( citing Lord, 117 Wn.2d at 887).

                                        V. JUROR MISCONDUCT


          Mattson next seeks a new trial under CR 59(a)( 1) because of alleged juror misconduct.

Specifically she contends that the jury failed to follow the trial court' s instructions about

deliberations   and   that juror   107 failed to honestly answer questions during voir dire and then

injected extrinsic evidence into deliberations. We review a trial court' s determinations on the

existence of juror misconduct and its prejudicial effect for an abuse of discretion. Richards v.

Overlake    Hosp. Med. Ctr.,       59 Wn. App. 266, 271, 796 P. 2d 737 ( 1990). Under that standard, we


find no error in the trial court' s denial of Mattson' s motion for a new trial based on these

allegations.




          Before voir dire, the court submitted Mattson' s juror questionnaire to the venire. One of

the questions asked potential jurors to disclose whether they " or someone close" to them had

worked     in any   of the   listed 10 fields. CP   at   38. One   of   these   fields   was "   law   enforcement."   CP


at 38. Potential juror 19 filled out the questionnaire by stating that neither he nor anyone close to

him had worked in any of the fields.

          During voir dire, Mattson questioned two of the potential jurors who had disclosed a

history of employment with law enforcement. One potential juror worked as an armed guard at

Joint Base Lewis -McChord and had previously served as an air marshal. Mattson' s counsel

 asked about the juror' s experience in investigating accidents and determining fault. Another

 7
     Juror 10 was designated as potential juror 19 before being seated. Thus, those references in this
 opinion are to the same person.

                                                            36
No. 43735 -0 -I1



potential juror had worked as a community corrections officer. Again, Mattson' s counsel asked

about investigations the juror had performed within the scope of his employment.

        APES' s counsel later asked whether any of the potential jurors had " investigative

experience as a private investigator, as a member of law enforcement, or as a military law

enforcement,    investigating      a potential crime or accident,       anything      of   that   nature ?"   VRP ( Mar.


27, 2012) at 365 -66. Potential juror 19 did not respond.


        Mattson' s counsel did speak directly to potential juror 19 during voir dire. Mattson' s

counsel   him if he had "[    a] ny concerns ...      about   any   of the   topics   we' ve   discussed here ?" VRP


 Mar. 28, 2012) at 421. Potential juror 19 stated that he did not. Given his answers, the parties

did not challenge potential juror 19, and the trial court seated him as juror 10.

          After the verdict, juror 6 signed a declaration alleging two different types ofjuror

misconduct. First, juror 6 stated that the jurors had failed to follow the proper procedures for

deliberating   and   voting   on   Mattson'   s   claims.   Second, juror 6 declared that juror 10 had failed to


disclose his experience as an investigator for the Occupational Safety and Health.Administration

 OSHA) during voir dire. According to juror 6, during deliberations juror 10 discussed OSHA

investigative standards and stated that he could not find APES or Stadtherr negligent because the

investigation into Mattson' s accident failed to comply with those standards. Based on the

declaration from juror 6, Mattson moved for a new trial because ofjuror misconduct. The trial .

court denied Mattson' s motion.


          A party may obtain a new trial based on claims ofjuror misconduct. State v. Balisok, 123

Wn.2d 114, 117 -18, 866 P. 2d 631 ( 1994).             A juror commits misconduct during voir dire by

misrepresenting material facts or by failing to disclose material facts. McCoy v. Kent Nursery,


                                                              37
No. 43735 -0 -II



Inc., 163 Wn.             744, 760, 260 P. 3d 967 ( 2011) ( citing Robinson                   Safeway Stores, Inc.,      113
                   App.                                                                  v.




Wn.2d 154,        158, 776 P. 2d 676 ( 1989)). To obtain a new trial for such misconduct, a party must

show "that [the] juror `failed to answer honestly a material question on voir dire, and then further

show that a correct response would have provided a valid basis for a challenge for cause.'"

McCoy, 163 Wn. App. at 761 ( quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S.

548, 555 -56, 104 S. Ct. 845, 78 L. Ed. 2d 663 ( 1984) and (citing In re Pers. Restraint ofElmore,

162 Wn.2d236, 267, 172 P.3d 335 ( 2007)).


          A juror may also commit misconduct by injecting extrinsic evidence into jury

deliberations. Balisok, 123 Wn.2d at 118. If a juror does so, a trial court may grant a new trial if

                                                                        of misconduct     '   that overcomes the policy
the   losing party makes        a "`   strong   affirmative   showing


considerations      protecting     secret     jury deliberations.    Breckenridge   v.   Valley    Gen.   Hosp.,   150


Wn.2d 197, 203, 75 P. 3d 944 (2003) (               quoting Balisok, 123 Wn.2d at 117 -18).

          Because     of the   interest in "'    secret, frank and free discussion of the evidence by the jury '

 appellate courts will generally not inquire into the internal processes by which the jury reaches

its   verdict."   Breckenridge, 150 Wn.2d            at   203 -04 ( quoting Balisok, 123 Wn.2d         at   117 -18).    These


  individual or collective thought processes leading to a verdict " inhere in the verdict" and

cannot    be   used   to impeach       a   jury verdict. "' Breckenridge, 150 Wn.2d at 204 -05 ( quoting State v.

Ng,    110 Wn.2d 32, 43, 750 P. 2d 632 ( 1988)). To test whether post- verdict statements from a


juror alleging misconduct concern matters inhering in the verdict, we look to whether the

statements relate      to "[   t] he mental processes by which individual jurors reached their respective

conclusions, their motives in arriving at their verdicts, the effect the evidence may have had upon

the jurors or the weight particular jurors may have given to particular evidence, or the jurors'


                                                                38
No. 43735 -0 -II



intentions   and   beliefs." Cox v. Charles Wright Acad., Inc., 70 Wn.2d 173, 179 -80, 422 P.2d 515


 1967).   Alternatively, we look        to "`   whether that to which the juror testifies can be rebutted by

other   testimony    without    probing the juror' s    mental processes. "'   Breckenridge, 150 Wn.2d at 205


 quoting Gardner v. Malone, 60 Wn.2d 836., 841, 376 P.2d 651 ( 1962)).

          We now turn to the merits of Mattson' s allegations, mindful that we analyze the question


of whether the matters she alleges inhere in the verdict separately from the question of whether

there was juror misconduct. Breckenridge, 150 Wn.2d at 204 n.12.

A.        Failure to Follow the Jury Instructions

          Mattson first alleges the jury as a whole improperly failed to follow the trial court' s

procedural instructions for reaching a verdict. The jury' s procedures for reaching its verdict,

such as how it went about voting, inhere in the verdict and a party cannot impeach the verdict

based   on   these   matters.   Ayers   v.   Johnson & Johnson    Baby Prods. Co., 117 Wn.2d 747, 768 -70,

818 P. 2d 1337 ( 1991).         We therefore cannot consider juror 6' s declaration as it relates to this


allegation of juror misconduct. Without the declaration, Mattson can offer no evidence of any

misconduct. Given this lack of evidence, the trial court did not abuse its discretion in denying

the motion for a new trial.


B.        Failure to Disclose Employment History During Voir Dire

          Mattson next alleges that juror 10 failed to properly disclose his experience working for

OSHA during voir dire. Because Mattson could prove juror 10' s previous employment as an

OSHA inspector using testimony unconnected with the jury deliberations, this employment

history does not inhere in the verdict.




                                                            39
No. 43735 -0 -I1



       We do not, however, agree with Mattson that the juror failed to honestly answer

questions during voir dire. Mattson' s jury questionnaire asked about past employment in "law
enforcement."      The courts have differed wildly about whether OSHA employees work in law

enforcement. Compare Matsko v. United States, 372 F.3d 556, 560 ( 3d Cir. 2004)

 administrative investigators are not law enforcement personnel for purposes of the federal tort

claims act " no matter     what investigative      conduct   they   are   involved in ") with   Ortloffv. United

States, 335 F. 3d 652, 659 ( 7th Cir. 2003) (       including OSHA employees among the " potential

number of federal law enforcement officials in our modem government' s alphabet soup "),

overruled on other grounds by Ali v. Fed. Bureau ofPrisons, 552 U.S. 214, 128 S. Ct. 831, 169

L. Ed. 2d 680 ( 2008). Since the courts cannot decide if an OSHA employee is a law


enforcement official, we decline to find misconduct in a former OSHA employee' s failure to

identify himself as having worked in law enforcement. As APES argues, people commonly

understand the term " law enforcement" to mean those agencies or persons sworn to uphold the


state' s laws and empowered to arrest people for violations of those laws. Juror 10 did not work

in that capacity and did not commit misconduct in answering his questionnaire to this effect.

        Mattson contends that, even ifjuror 10' s answers to the jury questionnaire did not omit

material information, other questions in voir dire should have caused him to disclose his

employment with OSHA. Other jurors did disclose law enforcement experience and Mattson' s

and APES' s counsel asked them and others about their experience in investigating accidents,

crimes, and   determining      fault. Later, Mattson' s      counsel asked     juror 10 if he had "[ a] ny concerns


    about   any   of the   topics   we' ve   discussed here ?" VRP ( Mar. 28, 2012)        at   421. Mattson


contends that these questions required juror 10 to disclose his investigative experience. Mattson



                                                          40
No. 43735 -0 -II



asked juror 10, however, about " concerns" he had with the topics covered in voir dire. Various

courts have suggested that a juror does not commit misconduct within the meaning of the

               test8


McDonough              by failing to give the answer the asking party is looking for with a vague

question.    E.g., Hatten   v.    Quarterman, 570 F. 3d 595, 602 ( 5th Cir. 2009) ( juror does not commit


misconduct by failing to answer that he had a " problem" with drugs when "problem" is

ambiguous enough        that it   could refer, not   to   addiction,   but to   an "   allergy   or an aversion ");   State


v.   Chesnel, 734 A.2d 1131, 1140 -41 ( Me. 1999) ( finding              no misleading answer in voir dire

because    of the vagueness of       the   question).   Juror 10 could have had no " concerns" with those


topics, meaning no worry or fear, and answered the question honestly and correctly even if we

assume he had law enforcement experience. The vagueness of Mattson' s question prevents

finding misconduct.

C.        Introduction of Extrinsic Evidence During Jury Deliberations

          Mattson alleges that juror 10 committed further misconduct by discussing OSHA' s

investigative standards during deliberation. The statements from juror 6 that Mattson cites

explain the way that juror 10 weighed the evidence Mattson offered and why he voted as he did.

These matters inhere in the verdict, and Mattson may not use this evidence to show juror

misconduct. Breckenridge, 150 Wn.2d at 204 -07; Cox, 70 Wn.2d at 176 -80; McCoy, 163 Wn.

App. at 767 -68. The trial court did not abuse its discretion in denying Mattson' s motion for a
new trial.




8 McDonough Power Equip., 464 U.S. at 548.
                                                             41
No. 43735 -0 -II


                                  VI. CUMULATIVE ERROR/ SUBSTANTIAL JUSTICE


             Finally, Mattson seeks a new trial, either based on cumulative error or because the jury

verdict failed to do substantial justice. We deny Mattson' s request for a new trial on these

grounds.




             The doctrine of cumulative error recognizes that multiple errors might combine to deny a

litigant a fair trial, even where each individual error does not prejudice the litigant in isolation.

State   v.   Davis, 175 Wn.2d 287, 345, 290 P. 3d 43 ( 2012);              Storey v. Storey, 21 Wn. App. 370, 374,

585 P.2d 183 ( 1978) ( applying            cumulative error     in the   civil context).    But even where multiple


errors occur, we need not reverse on cumulative error if the errors " were not so egregious or

unduly prejudicial that they denied" the litigant a fair trial. Davis, 175 Wn.2d at 345. Here, at
most the record contains some nonprejudicial errors related to counsel misconduct. These errors

do not combine to suggest that Mattson did not receive a fair trial.

             Mattson    also seeks a new     trial because "   substantial   justice has     not   been done." CR


59( 1)( 9).     She cites Snyder     v.   Sotta, 3 Wn. App. 190, 473 P.2d 213 ( 1970), and claims that it


holds that      a   high level   of rancor at   trial   warrants a new   trial   under   CR 59( a)( 7).   Snyder' s holding

provides little support for Mattson. In Snyder, the trial court made extensive findings about the

multiple ways the parties' bitterness pervaded the trial and infected the jury, preventing both

sides from having a fair trial. 3 Wn. App. at 195 -98. Based on these findings, the trial court

ordered a new trial. See Snyder, 3 Wn. App. at 195. Division Three of our court affirmed the

grant of a new trial under former CR 59( f),which allowed new trials for failure to do substantial

justice, because the trial court was best situated to determine the effect of the rancorous

 atmosphere on the parties' rights to a fair trial. Snyder, 3 Wn. App. at 191, 198 -99. Here, the


                                                               42
No. 43735 -0 -II



trial court explicitly found that the heated atmosphere at trial did not prejudice the parties to a

degree warranting a new trial. Snyder requires that we defer to that determination.
                                           CONCLUSION


        We find substantial evidence in the record to support the jury' s verdict. We therefore

hold that the trial court properly denied Mattson' s motions for judgment as a matter of law under

CR 50 and for a new trial under CR 59. We hold that the trial court did not en in declining to

preclude or estop APES and Stadtherr from disputing causation on remand. We also hold that

the trial court did not err in instructing the jury. Finally, we find no basis for concluding that the

trial court abused its discretion in declining to order a new trial based on any counsel or juror

misconduct or for cumulative error or a failure to do substantial justice. 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.




                                                   43
