F I LED
1:,01,JE),T OF 11..i)",e,L5 DIV 1
E OF WAWU I Ch
10113 NOV -5 AM 10: 514
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
EAN OZ SAGER, )
) DIVISION ONE
Appellant, )
) No. 76879-4-1
v. )
) UNPUBLISHED OPINION
SARA MENA, )
)
Defendant, )
)
KISIRA N. HILL, and EDDIE B. HILL )
and JOANN HILL, Husband and Wife, )
)
Respondents. ) FILED: November 5, 2018
)
DWYER, J. — Following two separate automobile collisions, Ean Oz Sager
brought suit against two of the other drivers, Sara Mena and Kisira Hill, and was
awarded damages by a jury. Sager asserts that the trial court erred by excluding
photographic evidence of damage sustained to Hill's car. Sager contends that
the exclusion of the photographic evidence was an abuse of the trial court's
discretion and allowed Hill to mislead the jury, resulting in an unfair assignment
of damages as between the defendants. Finding no abuse of the trial court's
discretion, we affirm.
1
Sager was injured in two automobile collisions in the span of two days.
On September 27, 2012, Sager's vehicle was hit from behind by a vehicle driven
by defendant Kisira Hill while Sager's vehicle was stopped at a pedestrian
No. 76879-4/2
crossing (Collision #1).1 On September 29, Sager was involved in a more
serious collision (Collision #2). In the second incident, his vehicle was struck
from the side by a vehicle driven by defendant Sara Mena, pushing his vehicle
into oncoming traffic where it was hit head-on by another vehicle coming from the
opposite direction. In 2015, he sued Hill and Mena.
The defendants in each collision admitted their negligence and that Sager
had been injured in the collisions. The jury's task was to decide the nature and
extent of Sager's injuries, whether he failed to mitigate his damages, if damages
could be apportioned between the two collisions, and, if so, to actually apportion
responsibility for damages between the defendants.
In preparation for the argument of pretrial motions, Sager had numerous
exhibits marked for identification, including plaintiff's proposed Exhibits 6-20,
which were photographs of the damage sustained to the various vehicles
involved in the collisions. Plaintiffs proposed Exhibits 12-15 were photographs
of Hill's vehicle that showed damage to Hill's vehicle's hood, grille, and a
headlight.
During argument on the motions in limine, both defendants objected to the
introduction of the photographs. The trial court acknowledged the relevance of
the photographs, but ruled against admitting any of them, reasoning that no party
planned to offer biomechanical expert witness testimony that would explain to the
jury how the damage to the vehicles showed the force of the impact of the
I Sager sued Kisira Hill as well as the owners of the vehicle Kisira was driving, Eddie B.
Hill and Joann Hill. For convenience, unless the context indicates otherwise, "Hill" refers to Kisira
Hill.
- 2-
No. 76879-4/3
various collisions on Sager. The court explained that admitting the photographs
into evidence could lead the jury to engage in speculation about the
biomechanics of the collisions. Thus, the court ruled, the photographs' potential
to mislead the jury and prejudice the defendants rendered them more prejudicial
than probative under ER 403.
The parties then agreed not to elicit testimony about damage to the
vehicles. However, the trial court did allow Sager to utilize diagrams of each
collision, created by the investigating officers, to help demonstrate how each
collision occurred.
At trial, Hill was allowed to testify out of order and in the middle of Sager's
direct examination testimony. When asked to describe the collision in which she
had been involved, Hill stated, "I was distracted and when I looked up, the traffic
had stopped in front of me. I stepped on my brakes. Unable to stop in time, I
made contact with Mr. Sager's vehicle." In response to a question about whether
she spoke with Sager, Hill replied, "I did. After making contact with his car, we
pulled to the side." This choice of words did not promote an objection from
Sager, and Sager did not attempt to introduce the photographs at this time.
Sager did not opt to cross-examine Hill as to her choice of words.
After counsel finished with Hill's direct and cross-examinations, but before
Hill was excused from the stand, three jurors submitted written questions
regarding the speed of her vehicle at the time of impact. In the resulting sidebar
conference concerning whether to ask Hill the jurors' questions regarding her
vehicle's speed, Sager's attorney argued that Hill's testimony had made an issue
3
No. 76879-4/4
of the force of impact on the parties' vehicles, and that her answers to the jurors'
questions would open the door to the use of the vehicle damage photographs.
All defendants objected to asking Hill the questions posed by the jurors. The trial
court ruled that the likely prejudice from asking the questions outweighed their
probative value and declined to pose the jurors' questions to Hill. Given that the
questions were not asked, the trial court did not reach the issue of admitting the
photographs at this time.
After Hill was excused, Sager's counsel continued with Sager's direct
examination. In this examination, counsel directly addressed Hill's testimony and
Sager provided a contrasting description of Collision #1. Sager testified that, as
a result of the impact, his "head hit the back of the headrest" and he "hit his chin."
When asked expressly how he would describe the impact in comparison to Hill's
"made contact" testimony, Sager testified, "it was pretty significant contact, but
not—not as bad as the second one."
At the conclusion of Sager's testimony, a juror proposed a question
concerning the damage caused to Sager's vehicle in Collision #2. During the
resulting sidebar conference, Sager's attorney acknowledged the trial court's
initial bases for excluding the photographs—that, because there was no denial
that both collisions caused injuries, damages from each collision could be
determined by medical evidence. However, counsel argued that, given Hill's
"made contact" testimony and defense counsels' cross-examination of Sager,
both of which tended to minimize the impact of the first collision, Sager should be
allowed to introduce the photographs of the damage to Hill's vehicle and answer
4
No. 76879-4/5
the juror's question about the damage sustained by his own vehicle in both
collisions.
The trial court initially ruled that Sager could answer the juror's question
about damage to Sager's vehicle and testify as to the condition of his vehicle
after each collision, reasoning that the door had been opened, but did not allow
the admission of any of the photographs. To this Mena's counsel objected,
arguing that the question called for information relating to property damage that
was not at issue and that the door to questions about the damage sustained by
the various vehicles had not been opened—as Sager was essentially arguing
that testimony on the first collision had opened the door to a question about
vehicle damage in the second collision. Mena's attorney also argued that the
information sought by the juror's question would confuse the jury as to whether it
was to consider insurance or property damage.
The trial court then revisited its ruling, declining to allow Sager to answer
the juror's question regarding damage to Sager's vehicle, while maintaining its
decision not to allow the admission of the photographs. In addition to the
reasons given in the pretrial hearing for excluding the photographs, the judge
now agreed with Mena's attorney that the possibility of juror confusion over
whether insurance or property damage was at issue also rendered the proffered
evidence more prejudicial than probative.
In Hill's closing argument, Hill's counsel emphasized the comparative
mildness of Collision #1 as opposed to Collision #2.
5
No. 76879-4/6
Ultimately, the jury found that Sager had proved total damages of
$59,001.00. The jury then allocated $1,400.00 of damages to Hill from Collision
#1 and $57,601.00 of damages to Mena from Collision #2. The jury also found
that Sager failed to mitigate his damages in the amount of $6,250.00. Judgment
was entered on the verdict. The defendants were not assigned joint and several
liability.
Sager timely appealed.2 After filing his notice of appeal, Sager settled his
case against defendant Mena. She is not a party to this appeal.
II
This appeal concerns the decision of the trial court to exclude photographs
of damage to Hill's vehicle. Sager asserts that the exclusion of the photographic
evidence of the damage to Hill's vehicle resulted in the jury assigning to Hill too
few of the proved damages. Specifically, Sager argues that, in the absence of
photographic evidence of damage to Hill's vehicle, he was unable to demonstrate
the force of the collision to the jury. Thus, he asserts, Hill was allowed to
misrepresent the nature of Collision #1.3
Sager first assigns error to the trial court's pretrial decision to exclude the
photographs of Hill's vehicle. Next, he contends that the trial court erred by
2 Sager's argument on appeal is concentrated on the disparity between the amount of
damages assigned to Hill, as opposed to those assigned to Mena. Prejudice was manifested,
Sager argues,"[b]ecause of the disproportionate verdict." Reply Br. of Appellant at 3. Sager
does not assign error to the trial court's instructions, nor does Sager invest any argument or
citations to the record that would support the view that the "total damages" amount found by the
jury was inadequate to fully compensate Sager. In the end, however, given that we find no error,
this matters not.
3 Sager does not assign error to the trial court's decision not to ask the jurors' questions
regarding the speed of Hill's vehicle at the time of the collision.
6
No. 76879-4/7
continuing to exclude the photographs after Hill's testimony, notwithstanding the
minimizing language Hill used to describe the impact and the questions posed by
jurors that indicated a concern with the force of impact of the vehicles involved in
Collision #1. Finally, he avers that the trial court erred by declining to admit
these photographs at the conclusion of Sager's testimony for the purpose of
impeachment by contradiction, especially in light of an additional juror question
regarding vehicle damage. We hold that the trial court did not err in any of these
instances.
To be admissible, evidence must be relevant. ER 402. Evidence is
relevant when it has any tendency to make the existence of any consequential
fact more probable or less probable than it would be without the evidence. ER
401. Facts that tend to establish a party's theory or disprove or rebut an
opponent's theory or evidence are relevant. Fenimore v. Donald M. Drake
Constr. Co., 87 Wn.2d 85, 89, 549 P.2d 483(1976). However, even when
relevant, evidence may nevertheless be excluded if its probative value is
substantially outweighed by the likelihood that it will mislead the jury or promote a
confusion of the issues. ER 403.
The trial court has wide discretion in determining whether evidence will
mislead the jury. State v. Luvene, 127 Wn.2d 690, 707, 903 P.2d 960(1995).
Evidence that could lead the jury to engage in improper speculation is properly
characterized as evidence that may mislead the jury for purposes of applying ER
403. The decision to admit or exclude evidence is within the sound discretion of
7
No. 76879-4/8
the trial court; we will not reverse such a decision absent a manifest abuse of that
discretion. State v. Iverson, 126 Wn. App. 329, 336, 108 P.3d 799(2005).
A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds or untenable reasons. In re
Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362(1997)(citing In re
Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629(1993); In re Marriage of
Wicklund, 84 Wn. App. 763, 770 n.1, 932 P.2d 652(1996)). A court's decision is
manifestly unreasonable if it adopts a view that no reasonable person would
take, given the facts and applicable legal standard; it is based on untenable
grounds or reasons if the court applies the wrong standard or relies on
unsupported facts. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 669, 230 P.3d
583(2010).
Sager rightfully cites to cases indicating that photographs of damage to
vehicles may be admitted to show the forces of impact on a person involved in a
collision, even when liability is not at issue and biomechanical expert testimony is
not available. See, e.g., Murray v. Mossman, 52 Wn.2d 885, 888, 329 P.2d 1089
(1958); Kramer v. Portland-Seattle Auto Freight, Inc., 43 Wn.2d 386, 389, 261
P.2d 692(1953); Taylor v. Spokane, Portland & Seattle Rv. Co., 72 Wash. 378,
379-80, 130 P. 506 (1913). Indeed, the trial court herein never disputed the
relevance of the photographs; rather, it exercised its discretion to determine that
the photographs' probative value was outweighed by the danger of prejudice.
8
No. 76879-4/9
The trial court first subjected the photographs in question to ER 403's
balancing test while resolving the pretrial motions. The court did not question the
relevance of the photographs but, rather, determined that, under ER 403, their
probative value was outweighed by the potential for prejudicial juror confusion or
speculation. The court reasoned that, in the absence of biomechanical expert
testimony, admission of the photographs could invite speculation from the jury as
to how damage to the vehicles shown in the photographs were manifested in the
injuries sustained to Sager's person.
Sager argues that courts, as a general rule, allow photographic evidence
of vehicle damage because such photographs are relevant to determining
personal injury to a plaintiff inside a vehicle, even in the absence of expert
testimony. While many trial judges might have adopted Sager's view on the
matter, that is not dispositive. A trial court's evidentiary ruling constitutes an
abuse of discretion only when the ruling is one that no reasonable judge would
make. Sales, 168 Wn.2d at 669. We cannot say that no reasonable judge would
rule as the trial judge herein ruled. Nor can we say that all reasonable judges
would have ruled in accordance with Sager's desired ruling. Thus, no abuse of
discretion has been demonstrated. Sales, 168 Wn.2d at 669. There was no
error.
Sager next claims that the trial court erred by not admitting the
photographs of damage to Hill's vehicle mid-trial, after Hill's testimony and the
9
No. 76879-4/10
various juror questions. Sager argues that Hill's testimony, which minimized the
force of impact with which her car collided with Sager's, opened the door to
questions of vehicle speed and to the admission of photographic evidence of this
force.
Once again, the trial court was required, pursuant to ER 403, to make a
determination as to whether admitting the photographs would invite unfair
prejudice. Moreover, the judge was plainly aware that Hill's testimony preceded
the conclusion of Sager's direct examination, allowing Sager the opportunity to
rebut Hill's statements through his own testimony. Indeed, Sager's attorney
questioned him regarding Hill's characterization of the collision, which afforded
Sager the opportunity to offer a contrasting description of the forces at work in
the collision.
Sager argues that the photographs of Hill's vehicle would have conveyed
the force of the impact in a way that Sager was not able to do in words. This
speaks to the relevance of the photographs. But, again, the trial court never
ruled that the photographs were irrelevant. Instead, at this point of the trial also,
the trial judge relied on ER 403 in maintaining their exclusion. The judge
explained the court's reasons on the record. This was an exercise of the court's
discretion. To constitute an abuse of this discretion, the trial court's decision
would have had to adopt a view that no reasonable person would take. Salas,
168 Wn.2d at 669. We cannot say that the trial court's decision, pursuant to the
applicable facts and the ER 403 standard, meets this threshold. Thus, no abuse
of discretion is shown. There was no error.
-10-
No. 76879-4/11
Finally, Sager assigns error to the trial court's continued exclusion of the
photographs after they were offered to impeach Hill by contradiction.
Impeachment by contradiction is not to be confused with impeachment of a
witness by a prior inconsistent statement under ER 613. Rather, it is recognized
by our courts as a means to introduce rebuttal evidence contradicting a witness's
substantive testimony on a fact issue. Jacqueline's Wash., Inc. v. Mercantile
Stores Co., 80 Wn.2d 784, 788-89, 498 P.2d 870(1972). This evidence must be
independently competent and admissible for a purpose other than attacking the
witness's credibility. Jacqueline's Wash., 80 Wn.2d at 789. Admissibility of the
evidence is, however, still contingent on a trial court's evaluation of its probative
and prejudicial characteristics under ER 403. This evaluation, in turn, will not be
overturned on appeal absent a manifest abuse of discretion.
Sager requested to introduce the photographs of Hill's vehicle after his
testimony in a sidebar conference concerning whether to allow Sager to answer
a juror's question concerning damage to Sager's vehicle after Collision #2. The
court stated that, in addition to the concerns with the photographs that it identified
at the pretrial conference, admitting them could invite jury speculation as to
whether property damage or insurance claims were at issue. The concern that
allowing both photographs of and descriptions of vehicle damage would lead to
juror confusion as to whether the jury was to consider property damages was, as
with the potential for speculation in the absence of biomechanical expert
testimony, a tenable reason for continuing to exclude the proffered evidence.
No. 76879-4/12
The court's reasoning was not based on an incorrect legal standard. Littlefield,
133 Wn.2d at 47.
Sager had moved to admit the photographs of Hill's vehicle in response to
a juror question about the condition of Sager's vehicle after the second collision.
These photographs, in turn, showed only indirectly the forces that would have
acted on the plaintiff in the first collision. The relationship between the specific
juror question and the proffered photographs was attenuated at best. It was not
unreasonable for the trial judge to express concern about "open[ing] that
Pandora's box" of collateral issues, including insurance and property damage, by
admitting evidence of vehicle damage. Again, we cannot say that no reasonable
judge would arrive at this conclusion. Salas, 168 Wn.2d at 669. Thus, no abuse
of discretion is shown. There was no error.
Affirmed.
We concur:
- 12 -