The Stoel Rives Appellate Law Blog
The Washington Supreme Court recently ruled that a parentage order is a custody decree that cannot be modified without adequate cause and a change of circumstances.
Background: In Parentage of C.M.F. the superior court issued a parentage order that designated an individual as the father, named C.M.F.’s mother “custodian solely for purpose of other…
Last week, the State Supreme Court affirmed a $12.75 million verdict (including $2,422,006 for future care and $10 million in noneconomic damages) against the City of Seattle in favor of former Seattle firefighter, Mark Jones, who was injured when he fell 15 feet down the “pole hole” in a fire station at 3 a.m. on December 23, 2000. The case captured media attention when the press reported that post-trial surveillance videos showed Jones engaging in physical activities (e.g., playing horseshoes) the City alleged were inconsistent with his testimony at trial. The trial court refused to grant a new trial. The Court of Appeals affirmed in an unpublished opinion. The City petitioned the Washington Supreme Court for review based on the surveillance video and the new evidence that Jones was an alcoholic and that his drinking interfered with his recovery.
Continue Reading Washington Supreme Court Affirms Firefighter’s $12.75 Million Verdict Against City of Seattle
The Washington Supreme Court, through identical five-Justice majorities, announced two decisions expanding the definition of parent in the state. In In the Matter of the Custody of B.M.H., the Court held that the judge-made concept of “de facto parenthood” still existed in Washington even though the legislature had subsequently recognized additional forms of families. The Court then specifically held that former step-parents may get full parental rights over a non-biological child as a de facto parent. In the related In the Matter of the Custody of A.F.J., the Court held that foster parents may also become de facto parents. While the Court affirmed a four-part test to determine whether an individual had become a de facto parent, in both decisions, the Court’s key concern was whether the legal parent had consented to the arrangement.
Continue Reading Be Careful Who You Let Change the Diapers: Caregivers May Become “De Facto Parents”
Washington State Supreme Court reverses Division II in part and holds that failure to meet conditions to terminate a foreclosure sale and further appeal the trial court’s ruling constitutes a waiver of the right to challenge the foreclosure sale, but not other post-sale relief in Frizzell v. Murray, No. 87927-3.
Background and Analysis
Despite her relatively low income of $1600 a month, and despite a learning disability and dementia, Tamara Frizzell obtained from lenders a $100,000 loan secured by the $250,000 home she inherited from her late husband. She had initially sought a $20,000 loan to pay bills, but the lenders, Barbara and Gregory Murray, convinced Frizzell that she could get a better interest rate on a $100,000 loan. The Murrays explained that they would only loan money for business purposes, so Frizzell’s live-in friend convinced her that the two of them could launch a wheelchair and scooter business with the 40-50 wheelchairs and scooters he had stored on Frizzell’s property. Without any business background, business plan, or any other indicia that a wheelchair/scooter business would work, Frizzell received the $100,000 loan, minus $12,000 that the Murrays retained for fees.
Continue Reading State Supreme Court Curtails Post-Foreclosure Sale Invalidation, but Permits Other Relief
Last week the Washington Supreme Court extended a life preserver to plaintiffs who brought med mal claims against public hospitals between July 1, 2010 and December 27, 2012 without giving the hospitals 90-days presuit notice. The Court withdrew its earlier opinions in McDevitt v. Harborview and clarified that its ruling upholding the presuit notice requirement as to public hospitals would apply only prospectively. These substantive points aside, this decision also provides helpful guidance on two matters to judges and practitioners alike: (1) be precise about the scope of the holding, rule of law announced, or relief requested; and (2) don’t give up on motions for reconsideration just because they are rarely granted. More after the jump.
Continue Reading Public Hospital Med Mal Plaintiffs from the Last Three Years Can Breathe Easy
Donatelli v. D.R. Strong Consulting Engineers, Inc. [Wash. Sup. Ct. No. 86590-6]
A five justice majority in this case continued to develop the “independent duty doctrine” in Washington. That doctrine has superseded the “economic loss rule,” which previously limited recovery of economic damages to contract claims and recovery of non-economic damages to tort claims. According to the majority opinion, described in greater length below, a contracting party can have a duty in tort to another contracting party if and only if the duty is independent of the agreement. If the contract is unclear, then it must be interpreted by a trier of fact before dismissal based on the independent duty doctrine is proper. As explained by the four-justice dissent, this analysis is unnecessary to the independent duty doctrine, cannot be harmonized with the parties’ agreement, and is not supported by settled principles of contract law. Consistent with those legal principles, the dissent would limit the plaintiff to contract damages where, as here, the parties’ agreement encompasses the risk of harm that is claimed.
Continue Reading Washington Supreme Court Breaks New Ground with Independent Duty Doctrine
State of Washington v. Bao Dinh Dang [Wash. Sup. Ct. No. 87726-2]
The Washington Supreme Court issued a unanimous opinion that held that persons acquitted of a crime by reason of insanity and granted conditional release under medical supervision may only have their conditional release terminated if the court determines they are dangerous. Without a dangerousness finding, a court may not commit an acquitted person into a mental health facility solely on the basis that the person is not abiding by the terms and conditions of release. This should be a welcome decision for mental health advocates seeking to erode the assumption that the mentally ill are inherently dangerous or violent.Continue Reading WASHINGTON SUPREME COURT REQUIRES INDIVIDUALS TO BE FOUND DANGEROUS BEFORE THEY CAN BE INVOLUNTARILY COMMITTED, EVEN IF THEY HAVE BEEN FOUND NOT GUILTY BY REASON OF INSANITY
At issue in State vs. Byrd is whether a police officer violated federal and state privacy rights by searching a defendant’s purse incident to arrest after the defendant was secured in a police car and the purse was left on the ground outside the vehicle. The Washington Supreme Court determined that the search did not violate either the United States or Washington Constitutions because the purse was part of the defendant’s person and therefore subject to warrantless search incident to a lawful arrest.
Four justices dissented, arguing the search violated state constitutional protections. Justice Gonzales concurred with the majority, but wrote separately to suggest the search was invalid because the officer lacked probable cause to make the arrest itself.
Continue Reading A Purse Is Part of a Person, Even When the Person is Locked in a Police Car and the Purse is Not
In Swinomish Indian Tribal Community v. Washington State Department of Ecology (PDF), the Washington Supreme Court determined that the state Department of Ecology (Ecology) overstepped its statutory authority by issuing an Amended Rule for the Skagit River which both established minimum water flow levels and set aside 27 reservations allowing users to draw on the water even if that use would force the river below that minimum flow level.
At issue in State v. Dye (PDF) was whether a criminal defendant is denied a fair trial by allowing a developmentally disabled victim to testify with the assistance of a comfort dog. Such trial management decisions are reviewed for abuse of discretion. Based on the evidence presented to the trial court at a hearing on the special dispensation request, the Washington Supreme Court concluded, there was no abuse of discretion.
Continue Reading Anxious Trial Witness Permitted to Testify in Presence of Comfort Dog
