K.h. & D.h. v. Olympia School District

Filed
Washington State
Court of Appeals
Division Two

August 22, 2017

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
K.H., as guardian for her minor daughter D.H.; No. 48583-4-II
K.H. and G.H. individually,

Appellant,

v.

OLYMPIA SCHOOL DISTRICT, a public UNPUBLISHED OPINION
corporation

Respondent.

JOHANSON, J. — DH and her parents (collectively the “Appellants”) sued Olympia School

District for negligence after district employee Gary Shafer admitted to molesting DH, a district

student, and a jury returned a verdict that the District was liable but that the value of the Appellants’

damages was “$0.” On appeal, the Appellants argue that the trial court erred when it denied the

Appellants’ motion for a new trial, gave one of the jury instructions, and denied the Appellants’

motion for summary judgment on liability, the Appellants’ motion in limine to admit prior

admissions on liability, and the Appellants’ motion for attorney fees under CR 37(c). Finding no

prejudicial error, we affirm.
No. 48583-4-II

FACTS

I. BACKGROUND

In January 2011, police arrested district school bus driver Shafer for molesting three district

students—NL, VV, and TC—and for possessing child pornography. In August, Shafer pleaded

guilty as charged and was sentenced to 175 months in prison. In June 2014, the Appellants, parents

of DH, a fourth district student whom Shafer had also molested, sued the District for gross

negligence, negligence, and negligent infliction of emotional distress based upon the District’s

failure to prevent Shafer from abusing DH.

II. SUMMARY JUDGMENT AND EVIDENTIARY MOTION

In September 2015, the Appellants moved for summary judgment on the issue of the

District’s liability on the ground that collateral estoppel applied. The trial court denied the

summary judgment motion, ruling that collateral estoppel did not apply.

In October, the Appellants moved to have the trial court admit the complaint and the

District’s admissions of negligence and gross negligence in Crunkleton v. Olympia School District1

as substantive evidence under ER 801(d)(2).2 In response, the District argued that the Crunkleton

1
Following Shafer’s convictions, NL, VV, TC, and their families or guardians brought three civil
lawsuits against the District—Gutierrez v. Olympia School District, noted at 184 Wn. App. 1059,
2014 WL 6984636, review denied, 183 Wn.2d 1004 (2015), Villarreal v. Olympia School District,
No. 11-2-01970-2, Thurston County Super. Ct., and Crunkleton v. Olympia School District, No.
12-2-02039-3, Thurston County Super. Ct. The Gutierrez plaintiffs prevailed at trial and were
awarded $1.4 million in damages. The Villarreal plaintiffs obtained summary judgment against
the District on the issue of breach of duty. And in Crunkleton, the District admitted liability,
although it contested the amount of damages. Whether damages were awarded in the latter two
cases is not in the record before us.
2
ER 801(d)(2) excludes from the definition of hearsay a party opponent’s admissions when the
admissions are offered against the party opponent.

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documents were not admissions under ER 801(d)(2) and, alternatively, that the Crunkleton

documents were inadmissible under ER 403. The trial court denied the Appellants’ motion and

their subsequent motion for reconsideration.

III. OTHER PRETRIAL PROCEEDINGS

Trial was set for November 30. In the months preceding trial, the District represented that

it would contest liability at trial. The parties disputed the division of trial time, with the Appellants

requesting either that trial be allowed to proceed until both parties had fully presented their cases

or a 60/40 allocation with the possibility of extending trial.

On November 24, the parties appeared for a pretrial hearing, and both the Appellants and

the District informed the trial court that they were prepared for trial on November 30. The

Appellants told the trial court that when they had agreed that eight days was appropriate, they had

“always assumed that the District would . . . admit[] liability or that it would be otherwise

established.” Report of Proceedings (RP) (Nov. 24, 2015) at 9. In response, the trial court stated

that “I understand the [Appellants] made some assumptions about admissions by the [District], but

it’s pretty late, and there’s been no motions to the Court to ask for extra time other than a very

recent motion to either divide the trial time in a particular way or give you extra days, and it’s not

possible at this stage.” RP (Nov. 24, 2015) at 10. The District subsequently sought a continuance

of the trial date, which the Appellants “vehemently oppose[d]” and the trial court denied. Clerk’s

Papers (CP) at 6864.3

3
The Appellants’ witness list included multiple damages experts. In the first week of trial, the
Appellants moved for two additional days of trial time to present their case, including three of the
damages experts’ testimony. The trial court granted the Appellants only an additional half day
because in its view, the Appellants had run out of time because they “made some assumptions that
the case would shrink before it started and that eight days would be sufficient.” 6 RP at 1177.
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IV. TRIAL

A. APPELLANTS’ LIABILITY TESTIMONY

Shafer testified that he was a district employee who had joined the District as a bus driver

in 2005. Shafer explained that at least once a week, in order to groom children, he rode along on

buses driven by other district drivers. Beginning in the fall or early winter of 2010, Shafer

molested DH three times. DH suffers from a congenital condition known as Trisomy X.4 Shafer

assumed that due to her condition, DH would be “less likely . . . to tell on” Shafer. 2 RP at 325.

The first two times, Shafer molested DH while Shafer rode along on DH’s bus. The third time,

Shafer drove DH’s bus, and he pulled the bus over in order to molest DH.

District employees described a failure to train bus drivers to recognize the signs of

grooming and sexual molestation and a lack of procedures documenting when other bus drivers

would ride along on a bus. The district superintendent admitted that after a driver had been fired

in 2009 for misconduct, Shafer’s supervisors should have been “on the lookout.” 4 RP at 644.

Documenting ride-alongs would have helped district employees to recognize when there was an

unusual pattern or behavior by a bus driver. And the Appellants’ expert witness testified that the

District did not meet the standard of care in Washington when it hired Shafer.

According to the trial court, the “[Appellants] had information well before trial that the case had
not been narrowed in terms of the issues and nonetheless did not seek a continuance, knowing that
the case had been confirmed for eight trial days.” 6 RP at 1177.
4
DH’s mother testified that DH’s Trisomy X caused her to have delayed speech, language, and
motor skills, to have a slightly lowered IQ, and to be shy.

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B. DAMAGES TESTIMONY

1. APPELLANTS’ TESTIMONY

DH’s mother explained that in November or December 2010, four-year-old DH, who rode

a special needs bus, had been dropped off by a school bus driven by two men. DH was not smiling,

which her mother noted was “different,” and right away, DH asked her mother, “‘Why that man

touch my bottom?’” 7 RP at 1231. DH was “really upset,” “moody,” and “off” that afternoon—

so much so that DH’s father returned home early from work because he was concerned—although

DH’s behavior eventually returned to normal and her parents attributed her behavior that afternoon

to a “misunderstanding.” 7 RP at 1232.

DH’s mother called DH’s preschool teacher, Simona McEwen, who testified that DH’s

statement about a man touching her had “stood out to” McEwen at the time. 9 RP at 1721. In

McEwen’s view, it was remarkable for DH to utter such a long sentence because DH typically

spoke in “pretty short sentences.” 9 RP at 1721. DH refused to ride the bus after the incident.

After DH began kindergarten, approximately three years after the molestations, her toilet training

regressed, and at home, she had tantrums and was destructive and abusive to the family pets. DH

began to act out sexually between second and third grade to the point that DH’s parents felt that

she was “out of control.” 7 RP at 1268.

According to DH’s mother, DH’s behavior was “stressful,” caused DH’s parents to have

marital problems, and led DH’s mother to worry that DH’s sexual behavior would cause her future

problems. 7 RP at 1275. It was not until May 2011, when police informed DH’s mother that

Shafer had admitted to molesting a child on DH’s bus, that DH’s mother learned that Shafer had

potentially molested DH. DH’s mother testified that she believed that DH was the child that Shafer

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No. 48583-4-II

had molested and that the news emotionally upset her, so that she “felt like [her] whole world was

coming down.” 7 RP at 1237. She felt “[l]ike [she had] not been a good mom . . . [b]ecause this

happened to [DH]” and because she “didn’t follow up.” 7 RP at 1274-75. DH’s mother explained

that she had preexisting depression.

Jon Conte, the Appellants’ “sex abuse trauma expert,” also briefly testified regarding DH’s

mother’s damages. 1 RP at 66. Conte opined that DH’s mother suffered as a result of DH’s

abuse—in particular, she worried and felt “guilty” and she could not “stop thinking about” and

imagining “what must have happened on the bus.” 6 RP at 1031. The abuse had caused DH’s

mother to experience depression and anxiety.

Conte did not testify regarding the effect of Shafer’s abuse of DH on DH’s father. DH’s

father testified about his fears that “all of this” would continue to affect DH because DH would be

unable to complete high school and college and would become pregnant in high school and

involved in “other things,” such as prostitution. 7 RP at 1360. These fears were “very disturbing”

to DH’s father. 7 RP at 1360.

2. DISTRICT TESTIMONY

Dr. Russell Vandenbelt, a psychiatrist, testified regarding which of DH’s symptoms were

attributable to her Trisomy X and which could be attributed to the molestations. He explained that

Trisomy X resulted in developmental delays, particularly in speech and language acquisition and

motor skills, below average intelligence, and difficulty in social situations resulting in anger,

tantrums, and anxiety. Dr. Vandenbelt acknowledged that DH had been “transiently upset[]” (8

RP at 1546) on the afternoon of the bus incident but opined that

[t]he best available information in the records is that [DH] really wasn’t any
different in the immediate time frame following what happened on the bus outside

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No. 48583-4-II

of the afternoon when supposedly something happened and carrying forward. So
the picture that emerges is one of someone who is pretty much the same after the
time of whatever happened on the bus as she was before.

8 RP at 1531. DH immediately reported the bus incident, and thus Dr. Vandenbelt explained that

DH had not repressed the incident, which he characterized as “at the lower end of the severity

continuum with regard to what can happen . . . in childhood sexual abuse.” 8 RP at 1544.

According to Dr. Vandenbelt, DH’s shyness, sensitivity to wearing clothing, aggression,

temper tantrums, anger, immaturity, social and emotional issues, and speech delays all preexisted

the molestations and were attributable to DH’s Trisomy X, not to the molestations. Dr. Vandenbelt

explained that DH’s abuse of the family pets and difficulties at home were “attributable to her

developmental issues related to the Trisomy X” and were “repeated examples of her having

difficulty managing . . . different frustrations.” 8 RP at 1561. Similarly, DH’s incontinence issues

were unrelated to “past incidences of sexual abuse” because her incontinence correlated with

changes in DH’s schedule and was not a “pervasive pattern.” 8 RP at 1564-65. And DH’s sexual

acting out was “not related” to the molestations because the sexualized behaviors occurred in

isolation, rather than being part of the aftermath of an earlier event that carried forward. 8 RP at

1571. The “[p]robability” was that DH would not “have any future problems” related to the

molestation, which DH did not seem to remember.5 8 RP at 1545.

The District also called DH’s mother, who admitted that DH had not had concerning

“toileting issues” until kindergarten, which had later resolved, and that DH’s mother had told a

doctor in 2013 that she noticed no regression or loss of skills in DH. 8 RP at 1447. In June 2011,

5
On cross-examination, the Appellants’ expert Conte similarly testified that DH had no
independent memory of the molestations on the bus.

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No. 48583-4-II

after DH’s mother had learned of the abuse, DH’s mother stated at a doctor’s appointment that she

felt that DH did not have any significant issues related to the bus incident.6 DH’s mother had also

admitted in December 2012 that she had seen nothing in DH’s behavior that caused her to believe

that there had been significant contact. It was not until a therapist’s appointment in 2015 that DH’s

mother stated that DH had been acting out sexually. However, DH’s mother did note that DH’s

behavior had become “increasingly more difficult . . . to handle” since 2011. 8 RP at 1498. DH’s

mother also stated, “[A] lot of what I have seen and simply shrugged off as just problematic and

something that was part of [DH], I can see [was] most likely due to an evolving problem with her

having been sexually molested.” 8 RP at 1498.

McEwen testified that when DH was McEwen’s student, DH never acted aggressively and

exhibited no unusual or concerning behaviors. McEwen noted “[n]o change” in DH’s behavior

following the bus incident and that DH continued to make “steady progress.” 9 RP at 1721-22.

Similarly, DH’s kindergarten and first-grade teachers reported that DH appeared reserved yet

friendly and happy and did not have any angry outbursts or aggressive or sexualized behaviors.

Dr. Vandenbelt had also evaluated DH’s mother. He acknowledged that DH’s mother

suffered guilt, anger, anxiety, and depression; DH’s mother was stressed by her own understanding

of what had happened on the bus. Dr. Vandenbelt acknowledged that DH’s mother had preexisting

depression, and he testified that the depression was “affected by [DH’s mother’s] understanding

6
Dr. Vandenbelt had also testified that he reviewed records of a doctor’s visit in July 2012, where
no symptoms attributable to any events that occurred in the fall of 2010 were discussed. Having
interviewed DH’s mother, Dr. Vandenbelt believed that DH’s mother was someone who would be
particularly likely to notice if DH had symptoms resulting from the abuse.

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No. 48583-4-II

of her daughter having been sexually abused. [However, t]hat’s a different thing than saying . . .

that her . . . depression over time has been made worse.” 9 RP at 1632-33.

C. JURY INSTRUCTIONS AND VERDICT

At a jury instructions conference, the trial court explained that it would include as

instruction 19 an instruction proposed by the District and used in Rollins v. King County Metro

Transit, a case that the trial court believed had “significant parallels to this case.” 10 RP at 1930

(citing 148 Wn. App. 370, 199 P.3d 499 (2009)). Instruction 19 stated,

In calculating a damage award, you must not include any damages that were
caused by acts of Gary Shafer and not proximately caused by negligence of the
[District]. Any damages caused solely by Gary Shafer and not proximately caused
by negligence of the [District] must be segregated from and not made a part of any
damage award against [the District].

CP at 6433. The Appellants objected to instruction 19 and argued that the instruction “unfairly

and prejudicially” “frame[d] the issue in the negative and has the jury excluding damages

immediately as opposed to describing in a positive fashion what they are to award” and misstated

the law. CP at 6155; 11 RP at 2065-66. The trial court also gave instruction 5, proposed by the

Appellants, which stated that “[a]ny act or omission of an officer or employee is the act or omission

of the” District. CP at 6419.

During deliberation, the jury asked whether under instruction 5, Shafer should be

considered an employee of the District for purposes of determining negligence. The District

argued that the jury had “found a flaw” in the instructions and speculated that the jury wondered

whether Shafer’s intentional acts could be imputed to the District. 11 RP at 2189. The Appellants

disagreed, argued that there were a “myriad of reasons” that the jury could have asked the question,

and proposed that the jury be told to read its instructions. 11 RP at 2198. After consulting with

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both attorneys, the trial court agreed with the Appellants, rejected the District’s request for an

additional instruction, and directed the jury to reread the instructions. The trial court reasoned that

it was unclear from the question whether the jury thought “that there is vicarious liability here”

and accepted the Appellants’ argument that “the instructions together guide the jury to the overall

instructions and legal principles that apply.” 12 RP at 2217.

On December 17, the jury returned a special verdict form in which it answered, “Yes” to

the questions of whether the District was negligent or grossly negligent and whether such

negligence or gross negligence was “a proximate cause of injury or damage to the [Appellants].”

CP at 6447-48. However, the jury found the measure of each of the Appellants’ damages

“proximately caused by” the District to be “$0” in response to three separate interrogatories. CP

at 6449. After the jury returned its verdict and was polled, neither party raised any issues to

address, and the trial court recessed.

V. MOTION FOR A NEW TRIAL

In January 2016, the Appellants moved for a new trial on the issue of damages alone under

CR 59(a)(1), (5), (7), and (9).7 The Appellants argued that the verdict was inherently contradictory

because the jury had found that the District’s negligence proximately caused the Appellants’

damages, yet failed to award the Appellants any damages. The Appellants further argued that

because the evidence of their damages was undisputed, the jury’s damage award of “$0” was not

7
CR 59 provides that a trial court may vacate a verdict and grant a new trial on the basis of
“[i]rregularity in the proceedings of the court, jury or adverse party . . . by which such party was
prevented from having a fair trial,” “[d]amages so excessive or inadequate as unmistakably to
indicate that the verdict must have been the result of passion or prejudice,” “[t]hat there is no
evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it
is contrary to law,” or “[t]hat substantial justice has not been done.” CR 59(a)(1), (5), (7), (9).

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supported by the evidence. In response, the District argued that the Appellants waived the issue

of whether the verdict was internally inconsistent because they failed to raise it while the jury was

impaneled. The District also argued that the verdict was consistent.

The trial court denied the Appellants’ motion for a new trial. The trial court disagreed that

the Appellants had waived the argument. Further, the trial court determined that the jury’s verdict

was internally consistent on the basis that either the jury believed that there were no damages

caused solely by the District and not also by Shafer or that the jury determined there was no proof

of monetary value of any injury caused by the District.

VI. ATTORNEY FEES REQUEST

After trial, the Appellants moved for fees and costs and argued that fees were appropriate

under CR 37(c)8 because the Appellants’ requests for admissions9 had sought the District’s

“opinion with regard to the application of law to fact.” CP at 6703. The District responded that it

had properly refused to “admit negligence” and that the requests were improper because they

required the District to admit a legal conclusion. CP at 7431. The District also noted that it was

8
CR 36 governs requests for admission; CR 37(c) provides that “[i]f a party fails to admit . . . the
truth of any matter as requested under [CR] 36, and if the party requesting the admissions thereafter
proves . . . the truth of the matter, the party may apply to the court for an order requiring the other
party to pay the requesting party the reasonable expenses incurred in making that proof, including
reasonable attorney fees. The court shall make the order unless it finds that (1) the request was
held objectionable pursuant to [CR] 36(a), or (2) the admission sought was of no substantial
importance, or (3) the party failing to admit had reasonable ground to believe the fact was not true
. . ., or (4) there was other good reason for the failure to admit.”
9
In September 2015, the Appellants had requested that the District admit that it “failed to act
reasonably in protecting D.H. from [Shafer’s] sexual abuse” and that it “breached its duty of care
in failing to protect D.H. from [Shafer’s] sexual abuse.” CP at 4561-62. The District refused these
requests and explained that each request did “not refer to a factual issue but involve[d] a question
of law.” CP at 4561-62.

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not required to admit factual matters central to the lawsuit. The trial court denied the Appellants’

fee request.

ANALYSIS

I. MOTION FOR A NEW TRIAL

A. NO WAIVER

The District argues that the Appellants waived their arguments that the verdict was

irreconcilable because the Appellants failed to object while the jury was still impaneled. We

disagree.

The existence of a waiver is a mixed question of fact and law that, where the facts are

undisputed, we review de novo. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 440-41,

191 P.3d 879 (2008). We have noted inconsistency in cases deciding whether a party waived its

challenge to a jury verdict when it did not raise the alleged inconsistency prior to the jury’s

discharge. Mears v. Bethel Sch. Dist. No. 403, 182 Wn. App. 919, 928, 332 P.3d 1077 (2014),

review denied, 182 Wn.2d 1021 (2015). In Mears, we stated that Gjerde v. Fritzsche, a Division

One case declining to consider a challenge to jury interrogatories, appeared to be limited to the

circumstances presented: counsel who was silent in the face of actual knowledge of an

inconsistency when it could be cured and remained silent in order to “‘try his luck with a second

jury.’” 182 Wn. App. at 929 n.2 (quoting 55 Wn. App. 387, 394, 777 P.2d 1072 (1989)).

Here, after the jury returned the special verdict and was polled, the Appellants did not

object to the verdict. The Appellants first argued that the verdict was irreconcilable in their new

trial motion. When the District subsequently argued that the Appellants had waived their

objection, the trial court correctly determined that there is no absolute standard that a party waives

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its claim of an irreconcilable verdict when it fails to raise the issue before the jury’s discharge. See

Mears, 182 Wn. App. at 928.

On appeal, the District claims that here, there was actual knowledge of an inconsistency

and that this is a situation where counsel remained silent despite actual knowledge in order to try

his luck with a second jury. See Mears, 182 Wn. App. at 929 n.2 (quoting Gjerde, 55 Wn. App.

at 394). The District points to the jury’s question during deliberations: “‘In regards to Instruction

5, should [Shafer] be considered an employee of the [District] in determining negligence?’” 11

RP at 2187. But in response to this question, the Appellants contended that it was unclear why the

jury asked about negligence and argued against the District’s speculation that the jury had found a

flaw in the instructions. Thus, it is not clear that the Appellants remained silent despite actual

knowledge of an inconsistency, and the rule from Gjerde does not apply. See Mears, 182 Wn.

App. at 929 n.2. We hold that the Appellants did not waive their irreconcilable verdict argument.

B. VERDICT IS RECONCILABLE

The Appellants argue that the jury’s verdict was irreconcilable so that the matter must be

reversed and remanded for a new trial on damages. We disagree.

1. LEGAL PRINCIPLES

We generally review the denial of a motion for new trial for an abuse of discretion;

however, where the trial court based its decision upon an issue of law, we review the issue de novo.

Mears, 182 Wn. App. at 926-27. Where the jury’s answers to a special verdict cannot be

reconciled, “‘[n]either a trial court nor an appellate court may substitute its judgment for that which

is within the province of the jury’” and “‘[t]he only proper recourse is to remand the cause for a

new trial.’” Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 131, 875 P.2d 621 (1994)

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(alterations in original) (quoting Blue Chelan, Inc. v. Dep’t of Labor & Indus., 101 Wn.2d 512,

515, 681 P.2d 233 (1984)). We have stated that “[i]n reviewing a verdict, an appellate court must

try to reconcile the answers to special interrogatories.” Alvarez v. Keyes, 76 Wn. App. 741, 743,

887 P.2d 496 (1995). And in reviewing the verdict, we read the verdict “as a whole, including

instructions.” Espinoza v. Am. Commerce Ins. Co., 184 Wn. App. 176, 197, 336 P.3d 115 (2014).

2. JURY INSTRUCTIONS

As relevant to this appeal, the trial court provided the following instructions to the jury:

INSTRUCTION NO. 5
. . . Any act or omission of an officer or employee [of the District] is the act
or omission of the [District].
INSTRUCTION NO. 6
The [Appellants] claim that [the District] was grossly negligent and/or
negligent in one or more of the following respects:
1. Failing to provide reasonable protection for D.H.;
2. Failing to use reasonable care in the hiring, retention and
supervision of the activities of . . . Gary Shafer;
3. Failing to enforce rules designed to protect passengers from
inappropriate touching; and
4. Failing to train employees;
[The Appellants] claim that this negligence caused injuries and damages to
the [Appellants].

CP at 6419-20.

INSTRUCTION NO. 19
In calculating a damage award, you must not include any damages that were
caused by acts of Gary Shafer and not proximately caused by negligence of the
[District]. Any damages caused solely by Gary Shafer and not proximately caused
by negligence of the [District] must be segregated from and not made a part of any
damage award against [the District].

CP at 6433.

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INSTRUCTION NO. 22
The cause of an injury or event is a proximate cause if it is related to the
injury or event in two ways: (1) the cause produced the injury or event in a direct
sequence, and (2) the injury or event would not have happened in the absence of
the cause.
There may be more than one proximate cause of the same injury or event.
If you find that the [District] was negligent and that such negligence was a
proximate cause of injury or damage to the [Appellants], it is not a defense that the
act of some other person who is not a party to this lawsuit may also have been a
proximate cause.
However, if you find that the sole proximate cause of injury or damage to
the [Appellants] was the act of some other person who is not a party to this lawsuit
then your verdict should be for the [District].

CP at 6436.

INSTRUCTION NO. 28
....
If your verdict is for the [Appellants], then you must determine the amount
of money which will reasonably and fairly compensate the [Appellants] for such
damages as you find were proximately caused by the [District].
[The instructions then listed the elements of noneconomic damages for DH
and factors to be considered if the jury awarded DH’s parents damages.]
The burden of proving damages rests with the [Appellants] and it is for you
to determine, based upon the evidence, whether any particular element has been
proved by a preponderance of the evidence.
Your award must be based upon the evidence and not upon speculation,
guess or conjecture.
The law has not furnished us with any fixed standard by which to measure
pain, suffering, or disability. With reference to these matters, you must be governed
by your own judgment, by the evidence in the case, and by these instructions.

CP at 6442-43.

3. ANALYSIS

Here, the jury returned a verdict that the District had been both negligent and grossly

negligent, that the negligence and gross negligence proximately caused “injury or damage to the

[Appellants],” but that the “measure of [Appellants’] damages proximately caused by the

[District]” was “$0” for DH, DH’s mother, and DH’s father. CP at 6448-49. These answers to the

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No. 48583-4-II

special verdict are reconcilable under the instructions because the jury could have determined that

the District was liable, yet that the Appellants had proved no legally compensable damages.

The Appellants contend that the verdict is irreconcilable under this theory because the jury

could not have found that the Appellants had proven damage proximately caused by the District

but then awarded nothing in compensation. We disagree with this argument; nothing in the jury

instructions foreclosed the jury from determining that the Appellants had suffered injuries or

damages yet assessing that the legally compensable value of the injury or damages was “$0.” For

instance, although instruction 6 stated that the Appellants claimed that the District’s negligence

caused the Appellants’ “injuries and damages” (CP at 6420) and instruction 22 discussed whether

the District’s negligence was a “proximate cause of injury or damage to the [Appellants]” (CP at

6436), instruction 28 told the jury,

If your verdict is for the [Appellants], then you must determine the amount
of money which will reasonably and fairly compensate the [Appellants] for such
damages as you find were proximately caused by the [District].
....
The burden of proving damages rests with the [Appellants] and it is for you
to determine, based upon the evidence, whether any particular element has been
proved by a preponderance of the evidence.

CP at 6442-43. Thus, the instructions allowed the jury to conclude that even if it found that the

District was liable, the jury could decline to award damages to the Appellants if the jury was not

convinced that the Appellants had proven that the amount of compensation they were entitled to

was greater than “$0.”

When we review whether the answers to a special verdict are reconcilable under the

instructions and the verdict as a whole, we must try to reconcile the answers where possible. See

Alvarez, 76 Wn. App. at 743. Here, the jury’s verdict may be reconciled under the District’s theory

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that the jury decided that the value of the Appellants’ damages was “$0.” We reject the Appellants’

arguments that a new trial should have been granted because the verdict was irreconcilable.10

Next, we turn to whether the trial evidence substantially supports the verdict.

C. SUBSTANTIAL EVIDENCE TO SUPPORT A “$0” VERDICT

The Appellants further argue that even if the verdict was reconcilable, the trial court abused

its discretion when it ruled that there was substantial evidence to support a “$0” verdict for each

Appellant. Again, we disagree.

A trial court abuses its discretion when it denies a motion for a new trial where the verdict

is contrary to the evidence. Sommer v. Dep’t of Soc. & Health Servs., 104 Wn. App. 160, 172, 15

P.3d 664 (2001). We review the record to determine whether there was sufficient evidence to

support the verdict: that is, viewing the evidence in the light most favorable to the nonmoving

party, there must be “‘substantial evidence’” to support the verdict and the verdict must not be

founded on mere theory or speculation. Sommer, 104 Wn. App. at 172 (quoting Hojem v. Kelly,

93 Wn.2d 143, 145, 606 P.2d 275 (1980)).

We have stated that

when a court reviews a jury’s verdict
[the] court will not willingly assume that the jury did not fairly and
objectively consider the evidence and the contentions of the parties relative

10
We note that the Appellants proposed the instruction that became instruction 5 and that the
Appellants had an opportunity to clarify instruction 5 when the jury posed a question regarding
that instruction. The Appellants, however, chose not to do so and repeatedly “urg[ed] the Court
not to give” any additional instructions. 12 RP at 2212, 2215. Further, we are not asked to decide
whether it was error to give instruction 5 together with instruction 19, and thus we do not reach
this issue. We have doubts whether instruction 19 was properly given due to the interplay between
instructions 19 and 5 as discussed here. But Appellant’s challenge to instruction 19 is solely on
the grounds that it was “misleading and confusing” because it was negatively phrased, redundant,
and biased in favor of the District. Br. of Appellants at 47.

17
No. 48583-4-II

to the issues before it. The inferences to be drawn from the evidence are for
the jury and not for [the] court. The credibility of witnesses and the weight
to be given to the evidence are matters within the province of the jury and
even if convinced that a wrong verdict has been rendered, the reviewing
court will not substitute its judgment for that of the jury, so long as there
was evidence which, if believed, would support the verdict rendered.

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

(alterations in original; citation omitted). In Stalkup, we further stated that “[e]ven in those

instances, where several competent experts concur in their opinion and the opposing party does

not offer contrary expert evidence, the jury is bound to decide the issue on its own fair judgment,

assisted by the expert testimony.” 145 Wn. App. at 591. “[T]here is no per se rule that general

damages must be awarded to every plaintiff who sustains an injury, [although] a plaintiff who

substantiates her pain and suffering with evidence is entitled to general damages.” Palmer v.

Jensen, 132 Wn.2d 193, 201, 937 P.2d 597 (1997).

The District cites to Kozma v. Starbucks Coffee Co., which is illustrative that a defendant

may be liable for injury to a plaintiff, yet the plaintiff may suffer no legally compensable injury.

412 N.J. Super. 319, 990 A.2d 679 (2010). There, the plaintiff, who had a preexisting knee injury,

slipped and fell outside a Starbucks and sued Starbucks Corporation for damages. Kozma, 412

N.J. Super. at 322. At trial, the jury allocated “sixty percent of the negligence and proximate cause

to Starbucks and the balance” to the plaintiff. Kozma, 412 N.J. Super. at 321. However, the jury

unanimously declined to award any compensatory damages. Kozma, 412 N.J. Super. at 321. The

appellate court affirmed the jury’s verdict, noting that a jury “‘need not give controlling effect to

any or all of the testimony provided by experts even in the absence of [contrary] evidence.’”

Kozma, 412 N.J. Super. at 325 (quoting State v. Spann, 236 N.J. Super. 13, 21, 563 A.2d 1145

(1989), aff’d, 130 N.J. 484, 617 A.2d 247 (1993)). Rather, “the evidence was susceptible to an

18
No. 48583-4-II

interpretation that minimized the monetary equivalent of plaintiff’s pain and suffering to its

vanishing point. . . . The jury could reasonably find that the impact of the fall was so insignificant

that no additional injury beyond plaintiff’s preexisting condition was sustained.” Kozma, 412 N.J.

at 325-27.

Here, the District and the Appellants hotly disputed whether or not DH suffered any

compensable damages because of the molestation. The District’s expert acknowledged that DH

had been briefly upset on the afternoon of the bus incident but also that the

best available information in the records is that [DH] really wasn’t any different in
the immediate time frame following what happened on the bus outside of the
afternoon when supposedly something happened and carrying forward. So the
picture that emerges is one of someone who is pretty much the same after the time
of whatever happened on the bus as she was before.

8 RP at 1531. The expert further testified at length that all of DH’s symptoms were attributable

not to any molestations but to her preexisting Trisomy X. Finally, the expert opined that the

“[p]robability” was that DH would not “have any future problems” related to the molestation,

which DH did not seem to remember. 8 RP at 1545. Notably, the Appellants’ own expert

confirmed on cross-examination that DH did not independently remember the incidents.

DH’s mother also testified that DH’s toileting issues had begun in kindergarten and that

DH’s mother did not report any of DH’s symptoms allegedly related to the molestations until long

after the incidents. Finally, multiple teachers testified that they witnessed no changes in DH’s

behavior following the molestations. Thus, viewing the evidence in the light most favorable to the

District, there is substantial evidence to support the jury’s award of “$0” as DH’s compensation

for the molestations. Sommer, 104 Wn. App. at 172.

19
No. 48583-4-II

The parties did not as clearly contest whether DH’s parents suffered damages. In fact, at

trial, Dr. Vandenbelt confirmed that DH’s mother suffered symptoms including guilt, anger,

anxiety, and effects to her preexisting depression, all of which resulted from DH’s mother’s own

understanding of what had happened on the bus. During the Appellants’ case, they presented

undisputed testimony that learning about the molestation had caused DH’s mother to feel “like

[her] whole world was coming down.” 7 RP at 1237. The Appellants’ expert briefly testified that

DH’s mother suffered as a result of DH’s abuse—in particular, she worried and felt “guilty,” and

she could not “stop thinking about” and imagining “what must have happened on the bus.” 6 RP

at 1031. The abuse had caused DH’s mother to experience depression and anxiety. DH’s father

testified about his “disturbing” fears that DH’s future would be affected because she had been

molested. 7 RP at 1360. Notably, the District did not focus upon DH’s mother’s injuries during

her cross-examination and did not cross-examine DH’s father at all.

However, even where several witnesses have given uncontroverted testimony, a jury is

“bound to decide the issue on its own fair judgment,” assisted by the testimony. Stalkup, 145 Wn.

App. at 591. DH’s parents’ testimony about “guilt,” “anger,” “depression,” and “anxiety,”

although evidence of emotional upset, could reasonably have been assessed by the jury not to rise

to the level of upset that would merit a damages recovery. See, e.g., Kozma, 412 N.J. Super. at

325-27. Thus, again, viewing the evidence in the light most favorable to the District, substantial

evidence supports a “$0” verdict for DH’s parents. For these reasons, we hold that the trial court

did not abuse its discretion when it denied Appellant’s new trial motion.

20
No. 48583-4-II

II. JURY INSTRUCTION CHALLENGE

The Appellants argue that the trial court abused its discretion when it gave instruction 19,

which the Appellants contend was (1) misleading and confusing because it was phrased negatively,

(2) redundant with instructions 22 and 28, and (3) slanted in favor of the District. The Appellants

further contend that (4) the claimed error was harmful because instruction 19 allegedly provides

the only grounds to reconcile the jury’s verdict. We hold that the Appellants’ arguments either

fail or are waived.

A. LEGAL PRINCIPLES

We review de novo whether a jury instruction is an accurate statement of the law. Terrell

v. Hamilton, 190 Wn. App. 489, 498, 358 P.3d 453 (2015). But we review for an abuse of

discretion the trial court’s decision regarding how to word an instruction or whether to give an

instruction. Terrell, 190 Wn. App. at 498. A party must make a proper objection to a jury

instruction to preserve its challenge for appellate review. Millies v. LandAmerica Transnation,

185 Wn.2d 302, 313, 372 P.3d 111 (2016). The exception must be sufficient to apprise the trial

judge of the objection’s nature and substance. Washburn v. City of Federal Way, 178 Wn.2d 732,

746, 310 P.3d 1275 (2013). Negatively phrased instructions may be objectionable for at least two

reasons: first, they may be misleading and confuse the jury, and second, they may slant the

instructions in the opposing party’s favor. Terrell, 190 Wn. App. at 505.

B. WAIVER

In its proposed jury instructions, the District included instruction 19 with an additional

sentence at the end. At a jury instructions conference, the trial court explained that it would include

21
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instruction 19 (without the additional sentence) as the instruction used in Rollins, a case with

“significant parallels to this case.” 10 RP at 1930 (citing 148 Wn. App. 370). Instruction 19 stated,

In calculating a damage award, you must not include any damages that were
caused by acts of Gary Shafer and not proximately caused by negligence of the
[District]. Any damages caused solely by Gary Shafer and not proximately caused
by negligence of the [District] must be segregated from and not made a part of any
damage award against [the District].

CP at 6433. The Appellants objected to instruction 19 and argued that the instruction “unfairly

and prejudicially” “frame[d] the issue in the negative and ha[d] the jury excluding damages

immediately as opposed to describing in a positive fashion what they are to award” and misstated

the law. CP at 6155; 11 RP at 2066.

On appeal, the Appellants reiterate their argument that instruction 19 was improper because

it was negatively framed and further argue that instruction 19 is redundant and slanted in the

District’s favor. The arguments that the instruction is redundant and slanted in the District’s favor

were not made before the trial court. Thus, we decline to review these arguments unless

Appellants’ instruction conference arguments were “‘sufficient to apprise the trial judge of the

nature and substance of the objection[s].’” Washburn, 178 Wn.2d at 746 (quoting Crossen v.

Skagit County, 100 Wn.2d 355, 358, 669 P.2d 1244 (1983)).

Here, the Appellants’ argument that instruction 19 is redundant with other instructions was

not raised in the trial court and accordingly has not been preserved. See Millies, 185 Wn.2d at

313; Washburn, 178 Wn.2d at 746. Further, the Appellants’ argument that instruction 19 is one-

sided is not sufficiently related to the Appellants’ argument that it is confusing—Terrell indicates

that one-sidedness and capacity to be misleading are distinct reasons that a negatively phrased

instruction may be objectionable. See 190 Wn. App. at 505. For these reasons, we hold that the

22
No. 48583-4-II

Appellants preserved only their arguments that instruction 19 was misleading, and accordingly

confusing, because it is negatively phrased.

C. NO ABUSE OF DISCRETION

As discussed, the Appellants’ remaining argument is that the trial court abused its

discretion because instruction 19 was misleading and confusing. We disagree.

Contrary to the Appellants’ arguments, there is no per se rule that the giving of a negatively

phrased jury instruction is an abuse of discretion. The Appellants rely upon Rickert v. Geppert, in

which the court determined that an instruction “not to compare negligence of the parties, if any

exists” was more likely to confuse, than aid, the jury. 64 Wn.2d 350, 355-56, 391 P.2d 964 (1964).

But Rickert does not absolutely bar the giving of a jury instruction phrased in the negative; rather,

there, the court granted a retrial on other grounds and determined that while there was “no abuse

of judicial discretion in the giving of the instruction,” a similar instruction “should not be given in

a retrial” if it were proposed. 64 Wn.2d at 356.

Here, the trial court gave instruction 19 because the instruction had been used in Rollins.

In Rollins, a passenger sued King County Metro Transit for negligence arising out of an altercation

on a Metro bus. 148 Wn. App. at 372-73. Division One of this court observed that “[t]he

intentional conduct of unknown assailants was a proximate cause of injury” but that the passenger

sought recovery solely from Metro and not from the assailants who intentionally attacked her.

Rollins, 148 Wn. App. at 379. Division One held that it was not misleading to give an instruction

that,

“[i]n calculating a damage award, you must not include any damages that were
caused by acts of the unknown assailants and not proximately caused by negligence
of the defendant. Any damages caused solely by the unknown assailants and not

23
No. 48583-4-II

proximately caused by negligence of defendant [Metro] must be segregated from
and not made a part of any damage award against [Metro.]”

Rollins, 148 Wn. App. at 379. Given the similarity of this case to Rollins, the trial court’s decision

that instruction 19 would be helpful to the jury and was not misleading or confusing was not

unreasonable. Accordingly, the Appellants’ argument that the trial court abused its discretion

when it gave instruction 19 because that instruction was negatively phrased fails. Because the trial

court acted within its discretion and accordingly did not err, we do not address the Appellants’

contention that the alleged error was not harmless.

III. SUMMARY JUDGMENT

The Appellants contend that the trial court erred when it denied their summary judgment

motion on liability.11 We decline to address this argument.

An issue is moot if we can no longer provide effective relief. SEIU Healthcare 775NW v.

Gregoire, 168 Wn.2d 593, 602, 229 P.3d 774 (2010). Because we affirm the jury verdict finding

the District liable, it is no longer material that the trial court denied summary judgment on liability.

IV. EVIDENTIARY RULING

The Appellants also argue that the trial court abused its discretion when it excluded the

District’s liability admissions from Crunkleton. The Appellants contend that exclusion of the

District’s prior liability admissions was not harmless error because had the evidence been

11
The Appellants also argue that the summary judgment ruling was “not harmless.” Br. of
Appellants at 55. But we do not address this argument because we do not review the denial of
summary judgment motions for harmless error. See Christensen v. Grant County Hosp. Dist. No.
1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004).

24
No. 48583-4-II

admitted, the Appellants could have streamlined their liability case and focused upon presenting

evidence of damages. We reject this argument.

Evidentiary error is harmless unless it affects the outcome of the case. Mut. of Enumclaw

Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702, 729, 315 P.3d 1143 (2013). Thus, we reverse

a jury’s verdict on the basis of evidentiary error only where we can say that the error affected that

verdict. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571

(1983).

We assume without deciding that the trial court abused its discretion when it declined to

admit the Crunkleton documents. Turning to harmless error, the Appellants do not argue that the

Crunkleton documents would have proven damages. The Appellants argue instead that the

admissions were probative “regarding the central issues of duty, breach, and liability.” Br. of

Appellants at 65. We thus assume that any effect of their admission would go to liability. As

discussed, the jury found that the District was, in fact, liable. Therefore, even if we were to agree

that the trial court erred, the error would be harmless because it could not have affected the liability

verdict. See Brown, 100 Wn.2d at 196.

The Appellants provide no authority for the proposition that the exclusion of evidence is

harmful merely because it would have allowed for a more “streamlined” presentation of a party’s

case. Here, the Appellants were unable to more fully present their damages case because they

wrongly assumed that the District would not contest liability, failed to seek a continuance, and

even opposed the District’s request for a continuance shortly before trial. We reject the Appellants’

arguments and hold that even assuming error in the exclusion of the Crunkleton documents, that

error would have been harmless.

25
No. 48583-4-II

V. TRIAL COURT ATTORNEY FEE MOTION

The Appellants contend that they are entitled to an award of fees under CR 37(c) because

the District “fail[ed] to admit its negligence prior to trial,” in particular its “breach of its duty.” Br.

of Appellants at 72, 75. We reject the Appellants’ arguments.

“We review a trial court’s decision to impose discovery sanctions under CR 37(c) for an

abuse of discretion”; a trial court “abuses its discretion if its decision is manifestly unreasonable

or based on untenable grounds.” Thompson v. King Feed & Nutrition Serv., Inc., 153 Wn.2d 447,

472, 105 P.3d 378 (2005). CR 36(a) governs requests for admission of the truth of matters

including “the application of law to fact”; the purpose of the rule “is to eliminate from controversy

factual matters that will not be disputed at trial.” Thompson, 153 Wn.2d at 472. Thus, “a party is

not required to concede either factual matters central to the lawsuit or legal conclusions.”

Thompson, 153 Wn.2d at 472.

If a party fails to admit the . . . truth of any matter as requested under [CR] 36, and
if the party requesting the admissions thereafter proves . . . the truth of the matter,
the party may apply to the court for an order requiring the other party to pay the
requesting party the reasonable expenses incurred in making that proof, including
reasonable attorney fees. The court shall make the order unless it finds that (1) the
request was held objectionable pursuant to [CR] 36(a), or (2) the admission sought
was of no substantial importance, or (3) the party failing to admit had reasonable
ground to believe the fact was not true[,] or (4) there was other good reason for the
failure to admit.

CR 37(c).

In September 2015, the Appellants requested that the District admit that it “failed to act

reasonably in protecting D.H. from [Shafer’s] sexual abuse” and that the District “breached its

duty of care in failing to protect D.H. from [Shafer’s] sexual abuse.” CP at 4561-62. The District

refused these requests and explained that each request did “not refer to a factual issue but

26
No. 48583-4-II

involve[d] a question of law.” CP at 4561-62. After trial, the Appellants moved for fees and costs

and argued that fees were appropriate under CR 37(c) because the Appellants’ requests sought the

District’s “opinion with regard to the application of law to fact.” CP at 6703. The District

responded that it had properly refused to “admit negligence” and that the requests were improper,

relying on both the rules that a party is not required to admit factual matters central to the lawsuit

and that requests for admission cannot request that a party admit a legal conclusion. CP at 7431.

The trial court denied the Appellants’ request.

In Thompson, the plaintiff requested that the defendant admit that its negligence was,

among other things, “the sole proximate cause” of a fire. 153 Wn.2d at 473. Our Supreme Court

noted that although this request could be characterized as the “‘application of law to fact’” under

CR 36(a), the request “undoubtedly requested [the defendant] to admit [a] legal conclusion[].”

Thompson, 153 Wn.2d at 474 (quoting CR 36(a)). “Negligence and proximate cause are legal

conclusions and are matters usually reserved for the jury.” Thompson, 153 Wn.2d at 474. Thus,

despite the request’s phrasing, the defendant had “‘good reason for the failure to admit’” under CR

37(c)(4).

Here, unlike in Thompson, at issue are admissions requiring that the District admit breach

of duty, rather than proximate cause or negligence. See 153 Wn.2d at 473. The Appellants argue

that breach of duty is “‘a question[] of fact for a jury,’” so that Thompson should not apply. Br. of

Appellants at 74 (quoting Bowers v. Marzano, 170 Wn. App. 498, 506, 290 P.3d 134 (2012)). But

the Appellants’ reliance upon Bowers is misplaced—that case states that both breach of duty and

proximate cause are “generally questions of fact for a jury.” 170 Wn. App. at 506. As discussed,

Thompson held that proximate cause is a legal conclusion usually reserved for the jury. 153 Wn.2d

27
No. 48583-4-II

at 474. Thus, Bowers’ language that proximate cause and breach of duty are both questions of fact

for the jury fails as a reason to distinguish Thompson.

Because the District was not required to concede breach of duty, the District had “‘good

reason for the failure to admit.’” Thompson, 153 Wn.2d at 474 (quoting CR 37(c)(4)).

Accordingly, we hold that the trial court did not abuse its discretion when it denied the Appellants’

motion for costs under CR 37.12

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.

JOHANSON, J.
We concur:

WORSWICK, J.

BJORGEN, C.J.

12
In the alternative, the District was not required to admit breach of duty because breach of duty
was a central issue in dispute. See Thompson, 153 Wn.2d 472. At trial, the District contested
whether it had breached its duty; for instance, in closing, the District argued that in order to find it
liable, the jury would have to find that the District “did something wrong . . . that violated the
standard of care.” 11 RP at 2135. The District also elicited testimony from Shafer that he had
carefully hidden his actions from others to avoid detection.
28