New trial ordered in suit of skateboarder hit in Puyallup crosswalk, awarded millions
The state Court of Appeals has ordered a new trial in the lawsuit of a skateboarder hit in a Puyallup crosswalk.
Among other things, the appellate court ruled the city was improperly prevented from arguing that the skateboarder was intoxicated.
Pierce County jurors awarded Austin Fite $6.5 million in 2019. He was 18 when a truck hit him at the intersection of Fifth Street Southeast, Seventh Street Southeast and 31st Avenue Southeast in 2014, next to Bradley Lake Park. Fite argued the configuration of the crosswalk at the time was negligent.
“It’s our strong position, just as the jury found, that he did not in any way cause or contribute to this collision occurring,” attorney Ben Barcus, who represented Fite, said Wednesday.
Barcus said he’ll petition the state Supreme Court for review.
“We don’t think that there’s a basis for a new trial in this case at all under the current established law,” Barcus said.
The jury found the city was 67 percent at fault, that the driver of the truck that hit Fite was 33 percent at fault, and that Fite was not responsible for what happened, according to court records.
Puyallup appealed the decision, and in November a three-judge panel of Division II of the state Court of Appeals sent the case back to Pierce County for a new trial.
The appellate court clarified Tuesday: “We reverse and remand for a new trial on liability and allocation of fault only.”
Barcus said that clarifies that the amount of damages “is not subject to review.”
A new trial would be to determine how much fault each party is responsible for (and therefore how much of that $6.5 million they should pay).
Barcus said there was an “L” configuration of the intersection before the park was dedicated and that the crosswalk wasn’t reconfigured when the road became a T. The city re-positioned the crosswalk after the accident, he said.
Attorney Phil Talmadge, who represented Puyallup, said via email Wednesday: “The City was pleased that the Court agreed with its position that the trial court committed error in this case, requiring a new trial.”
The appellate panel ruled in favor of Puyallup that Pierce County Superior Court Judge Shelly Speir was wrong to grant a motion that kept Puyallup from arguing Fite was intoxicated at the time.
Fite made a statement to a doctor that he was high on cannabis, and a urine test for his medical treatment showed THC, though that test wasn’t done to determine the level of THC in his blood, the opinion said.
“While the trial court stated that there was no other evidence of Fite’s intoxication, witness testimony suggested that he failed to stop before entering the crosswalk, and he also failed to make any move to avoid,” the vehicle, Judge Bernard Veljacic wrote for the unanimous panel.
The opinion goes on to say: “When coupled with the positive urine screening and his admission, and when viewed in the light most favorable to Puyallup, Fite’s behavior could have contributed to the accident; the behavior could have resulted from impairment due to being appreciably affected by marijuana; and a reasonable jury could have concluded accordingly. The evidence creates a genuine issue of material fact that Puyallup should have had the opportunity to present to the jury.”
‘Untenable grounds’
The panel also agreed with Puyallup that Speir was wrong to submit one of the jury instructions.
That instruction said: “Whether a roadway or crosswalk is reasonably safe for ordinary travel must be determined based on the ‘totality of the circumstances.’ A roadway or crosswalk can be unsafe for ordinary travel even when there is no violation of statutes, regulations or guidelines concerning roadways and crosswalks.”
It’s the second sentence that the appellate panel seemed to find unfairly favored Fite.
“… the instruction improperly emphasized Fite’s theory of the case by failing to include a sentence in the instruction stating that compliance with statutes, regulations, and guidelines may be evidence that the crosswalk was safe,” Veljacic wrote.
The appellate court also found Speir improperly admitted two police reports about other accidents at the intersection – one between a bicycle and a car and another where a car was rear-ended.
And the panel said Puyallup should have been given the chance to impeach the only eyewitness in the case, who gave inconsistent statements about whether she remembered seeing Fite look left and right.
“The trial court seemed to suggest that because Fite had no specific duty to look left and right, any testimony that he failed to look left or right was inadmissible,” Veljacic wrote, adding that the witness “should have been permitted to testify about her prior statement and respond to questions regarding her credibility.”
Not letting Puyallup question her credibility “was unreasonable and based on untenable grounds,” the opinion said.
Barcus said his client has permanent injuries from the accident.
“Unfortunately, he continues with significant symptoms,” the attorney said. “He suffered not only physical symptoms, but he’s got symptoms of traumatic brain injury. He’s doing the best he can.”
Barcus said his client had the light to cross, and that he was within feet of making it to the other side when the accident happened. Someone in a crosswalk does not have a duty to look for negligent drivers, the attorney argued.
“He was completely in the right to go across the crosswalk,” Barcus said. “… He was almost safe when he was hit.”
