Archive for the ‘Washington Personal Injury Law’ Category
Service of Pleadings on Babysitter Leads to Dismissal of Injury Claim
Our law firm was not involved in this case.
The Washington Court of Appeals rendered a decision in an injury case in which the the process server served the initial pleadings on the babysitter, rather than the defendant who had allegedly caused injury to the plaintiff.[1]
Before the injured party’s attorney discovered the error the statute of limitations had run, barring the claim unless the courts found service on the babysitter adequate.
The babysitter, who was the niece of one of the defendants, was a 30-year-old married woman who resided with her husband and two step-children in Tacoma. The documents were served at the defendants’ home in Federal Way.
A personal injury claim must be commenced within three years. The filing of a complaint in and of itself is not sufficient to toll the statute of limitations. A defendant must be served. The ways in which a person may be served with a summons are set forth by statute. Generally, personal service is required but substitute service is permitted under certain circumstances.[2]
In order to effectuate substitute service, the plaintiff must (1) leave a copy of the summons at the defendant’s house, (2) with some person of suitable age and discretion, (3) then resident therein. The only element at issue was the third one.
‘Resident’ requires something more than [being] ‘present’ in the defendant’s usual abode.[3] And as noted by the Supreme Court in Salts v Estes, when the legislature required that service be on a person who is “then resident” in the defendant’s usual abode, it meant something more than fleeting occupancy. The usual rule is that service on employees and others who do not reside in the defendant’s home does not comport with due process.
The plaintiff relied on a case called Wichert.[4] The Wichert court held that service upon an adult child staying overnight at her parents’ home was sufficient service upon the defendant parents. But the Salts court distinguished Wichert, in part because the daughter accepting service in that case slept in the defendants’ home on occasion and in particular the night before she accepted service.
The Salts court noted that Wichert and similar cases “mark the outer boundaries of RCW 4.28.80(15)”.
The Court of Appeals upheld the dismissal of the case on the grounds that service on the babysitter was not valid service. Since the statute of limitations had run, the injury claimed is barred forever.
There are precautions and practices that might well have prevented this outcome. It is important to discuss any injury claim with an experienced injury attorney.
[1] Krolow v. Kdep, 63136-5-I(March 22, 2010). Unpublished opinion.
[2] RCW 4.28.080(15).
[3] Salts v. Estes, 133 Wn.2d 160, 167-68, 943 P.2d 275 (1997).
[4] Wichert v. Cardwell, 117 Wn.2d 148, 812 P.2d 858 (1991).
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Washington Supreme Court Rules On Judicial Immunity
By Seattle Personal Injury Lawyer Scott Eller
Last month the Washington Supreme Court issued a decision in a case in which the Court considered an issue of judicial immunity.[1] A sheriff deputy escorted an inmate from a courtroom to the jail on the instructions of the judge. She did not handcuff the inmate. The inmate brook away and ran for the entrance. He lowered his shoulder and charged into a person in the courthouse, injury him. That person brought suit. Read the rest of this entry »
Tags: Courts Reject Injury Attorney’s Fees as too High
A recent Court of Appeals decision upheld the trial court’s ruling that attorney fees requested by an injury attorney were unreasonable.[1] Read the rest of this entry »
Case Law and Personal Injury
It is common in politics to criticize courts for “legislating from the bench”. The argument is that courts have no role in formulating broad public policy.
For most of the legal history of this and other English speaking countries in many areas of the law there was no legislation on point. Instead, the courts developed rules over time. These laws are often referred to as common law. Read the rest of this entry »
Duty and Forseeability
Negligence is “conduct which falls below the standard established by law for the protection of others against unreasonable risk”. [1]
Duty and standard of care.
The standard of conduct can arise from common law principles. It can also be prescribed by legislative enactment.[2] Read the rest of this entry »
Proximate Cause
Proximate cause includes both cause in fact and legal cause.[1] A cause in fact is a cause but for which the accident would not have happened.[2] A legal cause is a cause in fact that warrants legal liability as a matter of social policy.[3]
A cause is “proximate” only if it is both a cause in fact and a legal cause because not all causes in fact warrant the imposition of legal liability. Read the rest of this entry »
Personal Injury Damages
Under Washington personal injury law an injury victim must prove negligence and proximate causation.
After establishing negligence and proximate causation the injury victim must prove damages. There are various types of damages that are recoverable upon proof by the injury victim. The compensable elements of personal injury damages under Washington personal injury law are established by case law and statute.
Claims Against Family Members
There is no family tort immunity in Washington.[1] Also, insurance policies that exclude coverage for injury caused by family members are unenforceable under Washington law.[2] The same is true for insurance policy exclusions of family members for UIM coverage.[3]
Comparative Fault in Washington
Until 1973 Washington followed a rule of contributory negligence under which is an injury victim was partially at fault, even partially, this was a complete defense to the injury claim. This lead to many harsh results and exceptions to the rule.[1]
A comparative negligence statute went into effect in 1974 that eliminated the contributory negligence rule of a complete bar to recovery and replaced it with a rule that the plaintiff’s claim is lowered by the proportion of the plaintiff’s fault.[2]
Liability of Minors for Personal Injury Claims
Many assume that parents are “automatically” liable for damages caused by their children. Washington personal injury law is not so simple.
Negligence
Negligence
With some narrow exceptions, to recover for an injury an inured person in Washington must established that another party was at fault, or negligent.
Negligence has four elements. [1]
1. A duty
The injured person bears the burden of alleging and proving all four elements.[2]
The duty of an adult is to exercise the ordinary care that a reasonably careful person would exercise under similar circumstances. The duty for children depends on the age of the child. Contrary to a common belief parents are not strictly liable for the actions of their children.
Proximate causation is a nuanced legal concept. There are two elements of proximate causation, cause in fact and legal causation. Legal causation is a determination of whether liability should attach as a matter of law once causation in fact is established. [3]
[1] Nivens v. 7-11 Hoagy’s Corner, 133 Wn. 2d 192, 198, 943 P.2d 286 91997); Degal v. Majestic Mobile Manor, 129 Wn.2d 43, 48, 914 P.2d 728 (1996).
[2] Walters v. Aberdeen Recreation, Inc., 75 Wn.App. 710, 879 P.2d 337 (1994).
[3] Hartley v. State, 103 Wn.2d 768, 777-780, 698 P.2d 77 (1985); Taggart v. State, 188 Wn.2d 195, 822 P.2d 243 (1992).<–>
