                                                                                                              HLECJ
                                                                                                      COURT OF APPEALS DIV I
                                                                                                       STATE OF WASHINGTON
                                                                                                      2019FE8—5 AMII;5t.




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE

STANLEY SALTZBERG and                                                               )     No. 771 77-9-I
DONNA SALTZBERG, husband and
wife, and the marital community
composed thereof,
                                                                                    )
                                          Appellants,
                                                                                    )
                            v.
                                                                                    )
CHUCKANUT CAPITAL, LLC, a                 )                                               UNPUBLISHED OPINION
Washington limited liability corporation,
                                                                                          FILED: February 5, 2019
                                          Respondent.
______________________________________________________________________________________)
              VERELLEN, J.               —     If the plaintiff in a common law premises liability claim seeks

to admit evidence of the premises owner’s knowledge that it was not in compliance

with a city ordinance requiring a permit and imposing a 12-inch setback for placing

perimeter landscape bricks adjacent to the public sidewalk, the trial court does not

abuse its discretion in allowing the owner to present evidence on the same topic.

              If the plaintiff seeks to limit the owner from arguing its ignorance of the

ordinance, the trial court does not abuse its discretion in requiring the plaintiff to

submit a proposed jury instruction on that topic.
No. 77177-9-1/2


         And if the plaintiff orally requests an “ignorance of the law is no excuse”

instruction but offers no precise formulation of such an instruction, the trial court

does not abuse its discretion in declining to give such an instruction.

         We affirm the judgment on the verdict in favor of the premises owner and

the trial court’s denial of plaintiff’s motion for a new trial.

                                           FACTS

         On the evening of November 5, 2013, Stanley Saltzberg tripped on

perimeter bricks adjacent to the public sidewalk in front of a duplex owned by

Chuckanut Capital and suffered significant injuries.

         Saltzberg brought a premises liability suit against Chuckanut. A Seattle

municipal code street use ordinance requires a permit and imposes a 12-inch

setback from the public sidewalk for private improvements such as perimeter

bricks within the city right-of-way.

         Saltzberg argued Chuckanut breached its common law duty of care by

failing to comply with the ordinance at the time of his injury. Saltzberg did not

argue the Seattle right-of-way ordinance created a legislatively enacted duty of

care.1

         Saltzberg filed a motion in limine to preclude any testimony by Chuckanut

“that it didn’t know about the City of Seattle Right of Way on [its] property or that

[it] was unaware that [it] needed to apply for [a] permit to maintain or construct any




        The jury was instructed that the defendant’s duty to the plaintiff was that of
ordinary care.

                                              2
No. 77177-9-1/3


permanent improvements within the right of way.”2 But Saltzberg himself sought

to admit evidence of Chuckanut’s knowledge that the property was subject to a

right-of-way limitation.3

       In denying the motion in limine, the trial court noted that what the landowner

knew and when it knew it is often raised in premises liability cases. The trial court

ruled that if Saltzberg was entitled to present evidence of Chuckanut’s knowledge,

Chuckanut could offer evidence on that same topic.

       Saltzberg’s motion in limine also sought to prohibit Chuckanut from making

any argument that its “ignorance of the law was reasonable, and therefore

excuses [its] failure to comply with the law regarding permits.”4 In denying that

portion of the motion, the trial court directed Saltzberg to pursue the issue of

Chuckanut’s theories about ignorance of the ordinance in proposed jury

instructions.5

       Saltzberg proposed jury instruction 34 based on the pattern criminal jury

instruction regarding “knowingly.”6 But during formal exceptions to jury

instructions, Saltzberg stated he wanted a different instruction than the criminal



       2   Clerk’s Papers (CP) at 130.
        ~ The evidence consisted of two notices of ordinance violation sent by the
City after Saltzberg’s injury. CP at 61, 77.
        ~ CP at 130.
        ~ Saltzberg’s counsel: “We think ignorance of the law is no excuse.” Court:
‘Well, I understand that defense and if you ask me for a jury instruction to that
extent, I will certainly consider one.” Report of Proceedings (RP) (June 26, 2017)
at 23.
       6CP at 246.

                                          3
No. 77177-9-1/4


pattern instruction and requested a civil instruction that “ignorance of the law is no

excuse.”7 The trial court declined to give such an instruction.

       The jury found Chuckanut not negligent. The trial court denied Saltzberg’s

motion for a new trial based on his motion in limine and proposed jury instruction.

Saltzberg appeals.

                                      ANALYSIS

       We review denial of a motion in limine, denial of a proposed jury instruction,

and denial of a motion for new trial all for abuse of discretion.8

Motion in Limine

      A motion in limine should be granted if the evidence objected to is clearly

inadmissible.9

       The first part of the motion in limine sought to exclude evidence by

Chuckanut that it was unaware there was a right-of-way on its property, or that it

needed a permit for the bricks within that right-of-way. In the colloquy with the

court, Saltzberg’s counsel acknowledged that he sought to introduce evidence of

Chuckanut’s knowledge of its noncompliance with the ordinance. The trial court

denied that portion of the motion in limine, observing that “[a] defendant’s




       ~ RP (July 3, 2017) at 503.
       ~ Fenimore v. Donald M. Drake Constr. Co., 87 Wn.2d 85, 91, 549 P.2d 483
(1976); Rekhterv. State Dep’t of Soc. & Health Servs., 180 Wn.2d 102, 120, 323
P.3d 1036 (2014); Gilmorev. Jefferson County Pub. Transp. Benefit Area, 190
Wn.2d 483, 502, 415 P.3d 212 (2018).
       ~ Gammon v. Clark Equip. Co., 38 Wn. App. 274, 287, 686 P.2d 1102
(1984) (citing Fenimore, 87 Wn.2d at 91).

                                           4
No. 77177-9-1/5


knowledge (or lack thereof)      .   .   is relevant to the issue of negligence.”10 It is

entirely unremarkable that the trial court allowed Chuckanut to introduce evidence

on the same topic that Saltzberg proposed to admit evidence.

          The second part of the motion in limine sought to preclude any argument”

by Chuckanut’s counsel that ignorance of the law is a reasonable excuse for failing

to comply with the ordinance. On this issue, the court merely decided that this

request to limit argument should be raised in the form of a request for a jury

instruction rather than a motion in limine; if Saltzberg proposed such an

instruction, the court would consider it.11 When the trial court has exercised its

discretion to allow evidence on a topic, the court is not compelled to grant a motion

in limine to restrict arguments regarding that topic.12 It is entirely within the court’s

discretion to direct a party to propose jury instructions to define the legal

propositions that may be argued by the parties.

          The trial court did not abuse its discretion in denying Saltzberg’s motion in

limine.




          10CP at 240.
          ~ See RP (June 26, 2017) at 23.
          If the court grants a motion in limine excluding particular evidence, then
          12

the court may also direct that parties and counsel not refer to the excluded
evidence. 30 DAVID N. FINLEY & LISA McGuIRE, WASHINGTON P~cTlcE:
WASHINGTON WASHINGTON MOTIONS IN LIMINE § 1.3 at 4 (2018-19 ed.).


                                                  5
No. 77177-9-1/6


Jury Instructions

       Jury instructions are adequate if they permit the parties to argue their

theories of the case, do not mislead the jury, and properly inform the jury of the

applicable law.13

       A trial court need never give a requested instruction that is erroneous in any

respect.14 CR 51 requires “[ejach proposed jury instruction [to] be typewritten or

printed” and permits “[t]he trial court [to] disregard any proposed instruction not

submitted in accordance with this rule.”15 And if the court fails to give a proposed

instruction, the party must take exception to that failure to preserve the error on

appeal.’6

       Saltzberg proposed jury instruction 34, the criminal pattern instruction for

‘knowingly”:

             A person knows or acts knowingly or with knowledge with
      respect to a fact when he or she is aware of that fact. It is not
      necessary that the person know that the fact is defined by law as
      being unlawful*~7~

During the colloquy on formal exceptions to jury instructions, Saltzberg’s counsel

acknowledged that “we don’t really like the language” of the criminal instruction.’8


       ~ State v. O’Brien, 164 Wn. App. 924, 931, 267 P.3d 422 (2011).
        Hendrickson v. Moses Lake Sch. Dist.,
       14                                              Wn.2d   ~,   428 P.3d 1197,
1202 (2018).
       ‘5CR 51(c), (e); Cowan v. Jensen, 79 Wn.2d 844, 848, 490 P.2d 436
(1971) (error cannot be based on an oral motion to give instructions).
       16 Goehle v. Fred Hutchinson Cancer Research Center, 100 Wn. App. 609,

614, 1 P.3d 579 (2000).
       ‘~ CP at 279.

       18   RP (July 3, 2017) at 503.


                                          6
No. 771 77-9-1/7


Saltzberg did not preserve any objection to the trial court’s refusal to give

proposed jury instruction 34. Even if he had, Saltzberg fails to establish that the

language addressing knowledge ‘of a fact” for purposes of criminal law was an

accurate statement of law in his common law premises liability claim or necessary

to allow adequate argument to the jury.

       Saltzberg also orally advised the court, “[W]hat we want is an instruction

that says ignorance of the law is no excuse. We pulled the criminal instruction

because, although we don’t really like the language, it’s the closest thing we have

to a standard instruction.”19 Saltzberg cited two civil cases in support of his

request, but neither addresses common law premises liability.20 Saltzberg did not

submit a written proposed ‘ignorance of the law” instruction.

       And his request for an “ignorance of the law is no excuse” instruction

merely parroted a general maxim. The request was neither precise nor specific to

this case. Further, Saltzberg did not pursue the legal theory that a reasonable

person would have investigated and discovered whether the property was within

the city right-of-way.21 Even if we ignore the instruction’s other deficiencies,




       19   Id.
       20   ~  j~ at 502-03 (citing Senn v. Northwest Underwriters, 74 Wn. App.
408, 875 P.2d 637 (1994); Rekhterv. State, 180 Wn.2d 102, 323 P.3d 1036
(2014)).
       21 Chuckanut’s argument that it lacked knowledge of the ordinance is more

than a simple “ignorance of the law” argument. The right-of-way on Chuckanut’s
property was an “invisible boundary,” only revealed by a map or survey. In Wood
v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 45 Wn.2d 601, 277 P.2d 345
(1954), a case pre-dating RCWA 5.40.050, our Supreme Court held that ignorance
of an invisible boundary, specifically a city limit designation not visible to the

                                           7
No. 77177-9-1/8


ignorance whether the ordinance applies includes the question of fact whether the

property is within the city right-of-way. To draft an instruction that precisely carved

out the nuances of that fact question from the pure legal argument whether a

person is charged with knowledge of the terms of an ordinance would require

more than the vague and imprecise statement that “ignorance of the law is no

excuse.” Saltzberg does not establish that his orally proposed instruction is, in

context, a correct and complete statement of the law.22




traveling pubhc, was not ignorance of the law and therefore was a permissible
excuse to negligence per se.
        22 At the core of Saltzberg’s “ignorance of the law is no excuse” argument is

his contention that only permissible excuses can be considered when evaluating a
violation of a statute or ordinance. While Saltzberg acknowledges he “[does] not
contend that the trial court should have invoked the doctrine of negligence per se”
Reply Br. at 2, he inconsistently argues “if [none] of the recognized excuses
[apply],.   . the violator should be deemed negligent as a matter of law.” Reply Br.
                .


1 (emphasis added). And he cites to fundamental negligence per se concepts
addressed in the Restatement (Third) of Torts §~ 14, 15. See Br. of App. 18-21.
        Under RCWA 5.40.050, violation of an ordinance is “admissible but not
necessarily conclusive on the issue of negligence    . [A] trial judge can no longer
                                                         .   .   .


find negligence as a matter of law merely because a statutory duty was violated
without excuse or justification.” Mathis v. Ammons, 84 Wn. App. 411, 418, 928
P.2d 431 (1996) (emphasis added). If violation of an ordinance is admitted as
evidence of negligence in a common law premises liability claim, Saltzberg’s
assertion that the premises owner “should be deemed negligent as a matter of
law” is not consistent with RCWA 5.40.050 or Mathis.
       Further, this street use ordinance cannot set a standard of care because it
expressly provides for the general welfare and disavows that it is intended to
protect any particular class of persons. Seattle Municipal Code 15.02.025(C). In
Jackson v. City of Seattle, this court confirmed that ordinances employing “general
purpose language” and “specifically disavowing an intention to protect a particular
class of persons” do not set a standard of care. 158 Wn. App. 647, 652, 654-55,
244 P.3d 425 (2010).
        The basic premise of Saltzberg’s argument that ignorance of the law is an
invalid excuse for violation of this ordinance fails.

                                           8
No. 77177-9-1/9


       The trial court did not abuse its discretion by denying Saltzberg’s

request for an “ignorance of the law is no excuse” instruction.

Motion for New Trial

       Saltzberg’s motion for new trial is based on the denial of his motion in limine

and the refusal to give his criminal jury instruction or an “ignorance of the law is no

excuse” instruction. Because the court properly denied both the motion in limine

and the proposed jury instructions, it did not abuse its discretion in denying

Saltzberg’s motion for a new trial.

       We affirm.




WE CONCUR:
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