Geraldine Iverson As Pr For Bessie Ritter, Appellant V. Prestige Care Inc., Et Al., Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
GERALDINE IVERSON, as personal
representative of the estate of Bessie Ritter,
No. 54661-2-II
Appellant,
v.
UNPUBLISHED
PRESTIGE CARE, INC. and NORTHWEST
COUNTRY PLACE, INC.,
OPINION
Respondents.
PRICE, J. — Geraldine Iverson, as personal representative for Bessie Ritter, appeals the trial
court’s judgment in favor of the operators, Prestige Care and Northwest Country Place
(collectively NCPI), of Ritter’s nursing facility, Liberty Country Place. Iverson argues that the
trial court erred by excluding evidence related to a Department of Social and Health Services
(DSHS) investigation into the facility. She also argues that the trial court erred in instructing the
jury on superseding cause. We affirm.
FACTS
I. BACKGROUND
On July 25, 2014, Bessie Ritter was admitted to Liberty Country Place, a nursing home
owned and operated by NCPI. On August 19, Ritter went to the hospital at which time hospital
Filed
Washington State
Court of Appeals
Division Two
November 16, 2021

No. 54661-2-II
2
records show she had a small bowel obstruction. Ritter returned to Liberty Place on August 22.
She did not have any bowel movements for a period of time after her return to Liberty Place.
On August 30, Ritter called her daughter Geraldine Iverson complaining of constipation
and stating that she could not recall when she last had a bowel movement. On September 1, Ritter
was admitted to the hospital after vomiting several times. On September 2, Ritter underwent
emergency surgery revealing a cecal volvulus, which is a twisting of the colon. Ritter died on
September 4, 2014. It is undisputed that Ritter died due to the cecal volvulus.
Iverson, as Ritter’s personal representative, sued NCPI for medical negligence and
violation of the “Abuse of Vulnerable Adults Act.”1 Iverson contended that NCPI’s failure to
properly monitor and treat Ritter’s constipation caused Ritter to develop a cecal volvulus, resulting
in the rupture of her colon and her eventual death.
II. MOTIONS IN LIMINE
A. FACTS RELATED TO THE DSHS INVESTIGATION
In October and November 2014, DSHS conducted a surprise “abbreviated survey” which
is a “complaint investigation to determine compliance with state licensing requirements and
[f]ederal requirements for nursing homes participating in the Medicare and/or Medicaid
programs.” Clerk’s Papers (CP) Suppl. Ex., ID No. 9 at LPC 186. The survey included five NCPI
residents, three current residents and two former residents, including Ritter. The survey found that
NCPI “failed to consistently implement monitoring and treatment of constipation” for Ritter.
Suppl. Ex., ID 9 at LPC 191. The DSHS investigator inquired why the bowel protocol was not
1 Ch. 74.34 RCW.

No. 54661-2-II
3
followed. NCPI provided no explanation in response. The investigation indicated that Ritter did
not have a bowel movement between August 23 and August 31, 2014.
The DSHS investigation found a violation of 42 C.F.R. § 483.25 which DSHS said required
that
[e]ach resident must receive and the facility must provide the necessary care
and services to attain or maintain the highest practicable physical, mental, and
psychosocial well-being, in accordance with the comprehensive assessment and
plan of care.
Suppl. Ex., ID 9 at LPC 191. According to the DSHS investigation, the failure to meet the above
regulation was evidenced by NCPI’s “fail[ure] to consistently implement monitoring and treatment
of constipation” for Ritter. Suppl. Ex., ID 9 at LPC 191. The investigation further concluded that
NCPI failed to follow its house bowel protocol when providing care to Ritter.
DSHS Investigator Catherine Litsiba issued a “Nursing Home Survey Report” citing the
facility for the regulatory violation. Suppl. Ex., ID 9 at LPC 195. No plan of correction was
required for what was noted as “[p]ast noncompliance.” Supple. Ex., ID 9 at LPC 191. On January
9, 2015, DSHS issued a letter to NCPI noting that “Because [DSHS] determined the facility had
successfully implemented comprehensive corrective actions prior to the survey, no Plan of
Correction is required.” Suppl. Ex., ID 9 at LPC 186 (underscore omitted). Nonetheless, the letter
noted that DSHS recommended “to the CMS Regional Office that they consider a federal CMP
(Civil Monetary Penalty).” Suppl. Ex., ID 9 at LPC at 186 (underscore omitted). There is no
evidence in the record that any penalty was actually imposed.
B. RULINGS REGARDING DSHS EVIDENCE
In pretrial motions, NCPI asked the trial court to exclude documents and testimony related
to the DSHS investigation conducted after Ritter’s death. The specific evidence relevant to the

No. 54661-2-II
4
DSHS investigation that NCPI sought to exclude was the testimony from DSHS investigator
Catherine Litsiba and the investigation report.
NCPI wrote in its motions in limine that a DSHS survey is largely based on hearsay. It
argued that the DSHS investigation and civil suit were done “for different purposes” and would be
unduly prejudicial. Verbatim Report of Proceedings (VRP) at 23, 25; Clerk’s Papers (CP) at 32.
NCPI also pointed to alleged deficiencies in the DSHS investigation, arguing that permitting the
investigation report could lead to expanded testimony on collateral issues, including the accuracy
of the report itself.
Iverson responded that the investigation evidence should be admitted as it was extremely
probative, particularly when the DSHS investigator inquired of the assistant director of nurses as
to an explanation for ten days with no bowel movement by Ritter and the director could provide
no answer. After the records showing no bowel movements for ten days were shown to the
investigator, she cited NCPI for violating the administrative regulations governing nursing homes.
This, according to Iverson, is evidence of negligence.
The trial court determined not to admit evidence of the DSHS investigation, ruling,
The question of whether there was a survey deficiency is different than
whether there was negligence here. The survey, the investigation, is for a different
purpose. The report reaches different conclusions. It is based on hearsay for
purposes of this trial.
So the report itself, I’m going to grant the motion in limine. That would not
be admissible.
VRP at 25 (emphasis added).
The trial court also heard argument regarding the admission of testimony from the DSHS
investigator, Catherine Litsiba. Iverson argued for admission of Litsiba’s testimony contending

No. 54661-2-II
5
that the testimony “clearly contains admissible facts” and Litsiba’s conclusion that NCPI “violated
an administrative regulation constituting evidence of negligence is also admissible.” VRP at 25.
Iverson continued,
Any deficiencies in [Litsiba’s] investigation can be the subject of cross
examination. And it will be the same witnesses. The people who were there at the
facility were still there when she came out in November of 2014 and did her
investigation. It is not hearsay. It’s testimony.
VRP at 26.
NCPI again argued that Litsiba’s testimony involved a “different proceeding, different
standards, different purpose.” VRP at 27. NCPI argued that Litsiba could not testify as to her
conclusions or opinions and that her testimony would constitute inadmissible hearsay. The trial
court excluded Litsiba’s testimony, ruling,
All right. Well, I agree, I don’t think there’s a lot of difference between the
investigation and the report when I say that can’t come in and then we get the theory
being, well, she can testify that there was a violation. You know, they’re really just
two sides of the same coin.
I’m going to grant this motion as well. We’re not going to try that other
investigation. We’re trying this case. We’re trying whether there was a problem
with [Ritter’s] care and it’s going to be up to the jury to decide that.
Now, I agree with Mr. Potter that if there is – if there’s information that can
come in through an exception to the hearsay rule, a statement of a party opponent
or impeachment testimony, if she can testify regarding prior inconsistent statements
that are made by a defense witness[], she would be able to do that. But the
testimony regarding the investigation and report is excluded. I’m going to grant
that motion.
VRP at 29. Iverson made no formal offer of proof regarding Litsiba’s testimony.
After the trial court’s ruling on the motions, Iverson obtained the deposition testimony of
Litsiba on February 11, 2020. During trial, Iverson later sought to introduce the deposition

No. 54661-2-II
6
testimony asserting that the 17 minute video of Litsiba’s deposition testimony contained both
factual and expert testimony. The trial court stated that it had already excluded Litsiba’s testimony.
NCPI also moved to exclude evidence of other DSHS surveys and related citations. The
trial court denied the motion in part, allowing one investigation provided it was limited “to the
issue of notice about the problems with the bowel protocols [and] that the facility was on notice
that there was a problem, but we’re not getting into all these other cases.” VRP at 61-62. The
previous investigation and citation from January 2014 were admitted at trial.
III. TRIAL TESTIMONY
A. TESTIMONY REGARDING RITTER’S CONSTIPATION
While at the hospital due to her small bowel obstruction, Ritter successfully had three
bowel movements. NCPI’s medical records showed that after Ritter returned to Liberty Place,
between August 22 and September 1, a ten day period, Ritter had no subsequent bowel movements.
Conflicting testimony, however, indicated that Ritter may have had a bowel movement on
August 26.
Historically, NCPI kept all medical records, including the tracking of bowel movements,
on paper. In May 2014, the nursing home began implementing a new electronic medical records
system. The parties disputed whether these electronic records included all evidence of bowel
movements and vitals. Licensed practical nurse Harmony Edminster testified that not everyone
used the electronic system to record bowel movements. Certified nursing assistant (CNA) Sabrina
Hughes testified that all CNA charting was electronic by June 2014. CNA Julie Bair-Delaney
testified that after the transition to the electronic system, CNAs continued to use paper forms
although the electronic system was fully in place by 2014.

No. 54661-2-II
7
NCPI’s bowel protocol required that after one day without a bowel movement, a resident
received Fiber Rich, a high fiber apple juice, in their diet. If the Fiber Rich did not result in a
bowel movement, the resident received Docusate, a stool softener, the next day. If neither the
Fiber Rich nor the Docusate results in a bowel movement, after three days, the resident was given
Milk of Magnesia, a medication for constipation. On the fourth day without a bowel movement,
the resident received a Dulcolax suppository. If the resident persisted in not responding, NCPI
staff should contact the resident’s physician. After Ritter returned from the hospital, her doctor
ordered that the house bowel protocol be followed.
On August 30, Ritter called Iverson complaining of constipation and stating that she could
not recall when she last had a bowel movement. Iverson, in turn, alerted the nursing home and
asked when her mother last had a bowel movement. She was informed that it had been four days
since Ritter’s last bowel movement and Ritter would be given something to assist her. On August
30, Ritter received Milk of Magnesia. The following day, she received a Dulcolax suppository
because she did not respond to the Milk of Magnesia.
B. EXPERT TESTIMONY
Iverson presented expert testimony that NCPI’s failure to properly treat Ritter’s
constipation caused her bowel to fill with stool, which in turn, resulted in a cecal volvulus that
caused her death. Mary Shelkey, Ph.D., testified that NCPI violated the standard care when it
failed to follow bowel protocol and the doctor’s orders for treating Ritter’s constipation. Teresa
Brentnall, M.D., a board-certified gastroenterologist, testified that NCPI breached the standard of
care by failing to follow the bowel protocol. She testified that Ritter’s constipation more likely
than not caused the cecal volvulus and Ritter’s death.

No. 54661-2-II
8
NCPI’s experts did not dispute that cecal volvulus was the cause of Ritter’s death but
disagreed that constipation resulted in the twisting of her colon. Michael Peters, M.D., a diagnostic
radiologist, testified that in his experience, he has never heard of constipation associated with cecal
volvulus. He also did not know of any literature that identified constipation as a cause of cecal
volvulus. Brant Oelschlager, M.D., a general surgeon at the University of Washington School of
Medicine and Chief of the Division of General Surgery, testified that he did not believe that the
treatment of constipation would prevent cecal volvulus stating, “[T]here’s no literature, experience
to suggest that treating constipation with any sort of the regimen, carthartics, bowel — stool
softener, or laxative will prevent cecal volvulus.” VRP at 1359. He disagreed that constipation
could cause cecal volvulus and opined that bowel movements were irrelevant to Ritter’s
development of cecal volvulus.
C. TESTIMONY OF STEPHEN SANCHEZ
Registered nurse Stephen Sanchez, who oversaw the wing in which Ritter resided at
Liberty Country Place and also oversaw the facility’s bowel program, testified that he was
responsible for ensuring Ritter had regular bowel movements and that her doctor’s orders were
followed. Sanchez conducted an internal investigation into whether the facility’s bowel protocol
was followed, and this investigation did not result in any disciplinary actions.
Q. Was anybody disciplined or counseled or given any warnings as a result of Ms.
Ritter’s care or the documentation of her bowel movements? Was there any
discipline that was –
A. No.
Q. – handed out?
A. No.
VRP at 926.

No. 54661-2-II
9
Following Sanchez’s testimony, Iverson asked the trial court whether Sanchez’s testimony
opened the door to rebuttal evidence showing that NCPI was in fact disciplined regarding Ritter’s
care. NCPI argued that Sanchez’s testimony referenced a lack of staff discipline and did not open
the door to the submission of the DSHS investigation. The trial court agreed and determined that
Sanchez’s statements regarding the staff he supervised was not sufficiently broad enough to open
the door to the DSHS investigation.
IV. JURY INSTRUCTIONS
In her proposed jury instructions, Iverson included the definition of proximate cause:
The term “proximate cause” means a cause which in a direct sequence
produces the injury complained of and without which such injury would not have
happened.
There may be more than one proximate cause of an injury.
CP at 195; 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL: 15.01,
at 193 (7th ed. 2019) (WPIC). The trial court rejected this proposed instruction and gave a different
pattern jury instruction on proximate cause:
A cause of an injury is a proximate cause if it is related to the injury in two
ways: (1) the cause produced the injury in a direct sequence unbroken by any
superseding cause, and (2) the injury would not have happened in the absence of
the cause.
There may be more than one proximate cause of an injury.
CP at 220 (emphasis added); VRP 1469; 6 WPIC 15.01.01, at 197.
Iverson objected to the inclusion of the phrase, “unbroken by any superseding cause,”
arguing that no evidence of a superseding cause existed. VRP at 1467. The trial court overruled
the objection:

No. 54661-2-II
10
Well, there’s your argument that that’s what it is. There’s evidence both ways.
There’s evidence that the constipation did not cause it. And the defense should be
entitled to argue their theory of the case.
VRP at 1469.
At the request of NCPI, the trial court also gave the jury an instruction defining
“superseding cause.”
A superseding cause is a new independent cause that breaks the chain of
proximate causation between a defendant’s negligence and an injury.
If you find that defendant was negligent but that the sole proximate cause
of the injury was a later independent intervening cause that the defendant, in the
exercise of ordinary care, could not reasonably have anticipated, then any
negligence of the defendant is superseded and such negligence was not a proximate
cause of the injury. If, however, you find that the defendant was negligent and that
in the exercise of ordinary care, the defendant should reasonably have anticipated
the later independent intervening cause, then that cause does not supersede
defendant’s original negligence and you may find that the defendant’s negligence
was a proximate cause of the injury.
It is not necessary that the sequence of events or the particular resultant
injury be foreseeable. It is only necessary that the resultant injury fall within the
general field of danger which the defendant should reasonable have anticipated.
CP at 221; VRP 1469-70; 6 WPIC 15.05, at 206. Iverson objected to the instruction and its
proposed language.
V. CLOSING ARGUMENT AND JURY VERDICT
In closing arguments, Iverson described the proximate causation chain as follows:
Ten days without a bowel movement lead[ing] directly to the twisting of [Ritter’s]
intestines and her death, leading directly to agonizing pain caught on tape.
None of this would have happened without disregarding the bowel protocol.
Medicine after one, two, three days should have started on the 24th. The medicines
work. She has a bowel movement when you give her medicine ordered by the
doctor.
VRP at 1578.

No. 54661-2-II
11
The jury returned a verdict in favor of NCPI, finding that NCPI was not negligent.
Although the jury was instructed to skip the issue of whether NCPI’s negligence was the proximate
cause of Ritter’s death and harm if it found NCPI was not negligent, the jury answered “no” to the
causation questions in addition to those regarding negligence. Based on the jury verdict, the trial
court entered judgment in favor of NCPI.
Iverson appeals.
ANALYSIS
I. EXCLUSION OF EVIDENCE RELATED TO DSHS INVESTIGATION
Iverson argues that the trial court erred by excluding evidence related to the DSHS
investigation. Specifically, Iverson argues that the trial court misunderstood the relevance of the
evidence, and therefore, the trial court abused its discretion when it weighed the probative value
of the evidence against the danger of unfair prejudice. We disagree.
A. LEGAL PRINCIPLES
“We review the trial court’s decision not to admit evidence under a correctly interpreted
evidentiary rule for abuse of discretion.” Hensrude v. Sloss, 150 Wn. App. 853, 860, 209 P.3d 543
(2009). A trial court abuses its discretion when it makes its decision based on untenable grounds
or for untenable reasons. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-69, 230 P.3d 583 (2010).
A decision based on an erroneous view of the law is necessarily an abuse of discretion. Wash.
State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).
We apply de novo review to a trial court’s interpretation of an evidentiary rule. Hensrude, 150
Wn. App. at 860.

No. 54661-2-II
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“All relevant evidence is admissible unless its admissibility is otherwise limited.” Salas,
168 Wn.2d at 669. “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” ER 403. “Trial courts enjoy ‘wide discretion in balancing the probative value of
evidence against its potentially prejudicial impact.’” Salas, 168 Wn.2d at 671 (quoting State v.
Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239 (1997)).
RCW 5.40.050 provides,
A breach of a duty imposed by statute, ordinance, or administrative rule
shall not be considered negligence per se, but may be considered by the trier of fact
as evidence of negligence . . . .
(Emphasis added). RCW 5.40.050 eliminated the doctrine of negligence per se, with certain
exceptions not relevant here, and instead allows a weighing of a violation of a statute, ordinance,
or administrative rule, along with other relevant factors, to determine liability. Mathis v. Ammons,
84 Wn. App. 411, 418-19, 928 P.2d 431 (1996). Even when a defendant breached a duty imposed
by statute, the trier of fact must determine whether the defendant failed to exercise ordinary care.
Mathis, 84 Wn. App. at 419. Where the facts show there was an alleged violation of an applicable
statute or ordinance, we have held that while not negligence per se, the jury should be instructed
on the applicable ordinance and it is then “for the jury to decide whether the code was violated,
and if so, whether the violation was evidence of negligence.” Pettit v. Dwoskin, 116 Wn. App.
466, 475, 68 P.3d 1088 (2003).

No. 54661-2-II
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B. EXCLUSION OF EVIDENCE OF DSHS INVESTIGATION
Here, the trial court did not prohibit Iverson from arguing that the facts showed that NCPI
violated the federal statute. The trial court only excluded the specific DSHS report finding a
violation and testimony regarding the report and investigation. The trial court recognized that the
DSHS investigation and report was completed for a different purpose than determining whether
negligence occurred. Because the survey report was completed for a different purpose, its
admission would have been unfairly prejudicial by lending official weight to Iverson’s allegation
that NCPI failed to exercise ordinary care.
Furthermore, because the report was compiled as a survey report, NCPI argued it would be
required to present evidence regarding the limitations of the report and the scope of the
investigation. Litigating the investigation and the resulting report could confuse the jury into
believing that the sufficiency and accuracy of the DSHS investigation were the focus of the trial—
not whether NCPI exercised ordinary care. And the additional evidence could have created undue
delay or waste of time.
Although Iverson asserts that the evidence of the DSHS report was highly probative,
nothing prevented her from arguing that the facts established a violation of the federal regulation;
however, she chose not to do so without being able to rely on the DSHS investigation. The trial
court reasonably concluded that the DSHS investigation was unfairly prejudicial, risked confusing
the jury, and could have created undue delay or waste of time. The trial court had tenable reasons
for determining that the probative value of the evidence of the DSHS investigation was outweighed

No. 54661-2-II
14
by the danger of unfair prejudice, confusion of the issues, and the possibility of undue delay.
Therefore, the trial court did not abuse its discretion by excluding the evidence.2
C. OPENING THE DOOR—SANCHEZ’S TESTIMONY
Alternatively, Iverson argues that if the trial court properly excluded the evidence of the
DSHS investigation during motions in limine, NCPI opened the door to admitting the evidence
through Sanchez’s testimony. We disagree.
“[A] party may open the door” to inadmissible evidence. Ang v. Martin, 118 Wn. App.
553, 561, 76 P.3d 787 (2003). “The trial court has considerable discretion in administering this
open-door rule.” Ang v. Martin, 118 Wn. App. at 562. The open-door rule “aid[s] in establishing
the truth. To close the door after receiving only a part of the evidence not only leaves the matter
suspended in air at a point markedly advantageous to the party who opened the door, but might
well limit the proof to half-truths.” Ang v. Martin, 118 Wn. App. at 562 (quoting State v. Gefeller,
76 Wn.2d 449, 455, 458 P.2d 17 (1969)).
Sanchez testified that nobody at NCPI was disciplined, counseled, or warned as a result of
Ritter’s care. Sanchez’s testimony was not a half-truth that could be corrected by the evidence of
the DSHS investigation because Sanchez’s testimony was referring to individual employees being
disciplined, not NCPI as a facility.
2 In her reply brief, Iverson substantially reframes portions of her argument, such as distinguishing
between the factual basis of Litsiba’s testimony and the conclusions from the investigation.
Iverson also argues that if we determine the trial court improperly excluded evidence of the DSHS
investigation, we should also order the trial court to instruct the jury on a regulatory violation as
evidence of negligence. Issues raised in a reply brief are too late to warrant consideration by this
court. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Accordingly, we do not address these additional arguments raised by Iverson.

No. 54661-2-II
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Further, the DSHS investigation did not impose any actual discipline on NCPI or its
employees because, although it determined violations were committed, those violations were
already remedied by the time of the survey report. And although DSHS recommended referral for
a fine, there was no evidence that any fines were actually imposed. Because there was no evidence
that NCPI was itself disciplined, counseled, or warned as a result of the DSHS investigation, the
investigation would not have corrected misconceptions, if any, created by Sanchez’s testimony.
The trial court did not abuse its discretion by ruling that Sanchez’s testimony did not open
the door to admission of the evidence of the DSHS investigation.
II. JURY INSTRUCTION ON “SUPERSEDING CAUSE”
Iverson also argues that the trial court erred in instructing the jury on superseding cause.
Iverson argues that NCPI failed to present any evidence of an outside intervening force to support
giving the instruction. We disagree.
A. STANDARD OF REVIEW
As an initial matter, Iverson argues that we should apply de novo review to this jury
instruction issue. We disagree.
We apply de novo review to a trial court’s decision to give a jury instruction if based on a
matter of law. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517 (2017).
However, when the decision is based on a factual determination, this court reviews the trial court’s
decision for an abuse of discretion. Taylor, 187 Wn.2d at 767. “To determine whether to give an
instruction, the trial judge ‘must merely decide whether the record contains the kind of facts to
which the doctrine applies.’” Taylor, 187 Wn.2d at 767 (quoting Kappelman v. Lutz, 167 Wn.2d
1, 6, 217 P.3d 286 (2009)).

No. 54661-2-II
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Here, Iverson is arguing that there was no evidence to support giving an instruction on
superseding cause. Whether there is sufficient evidence to support a jury instruction is
fundamentally a factual determination that this court reviews for an abuse of discretion.
Accordingly, the appropriate standard of review is abuse of discretion.
B. EVIDENCE SUPPORTING JURY INSTRUCTION
“Instructions are not erroneous if they ‘(1) permit each party to argue [the] theory of the
case, (2) are not misleading, and (3) when read as a whole, properly inform the trier of fact of the
applicable law.’” Cramer v. Dep’t of Highways, 73 Wn. App. 516, 521, 870 P.2d 999 (1994)
(alternation in original) (internal quotation marks omitted) (quoting Walker v. State, 67 Wn. App.
611, 615, 837 P.2d 1023 (1992)). “If a party’s case theory lacks substantial evidence, a trial court
must not instruct the jury on it.” Fergen v. Sestero, 174 Wn. App. 393, 397, 298 P.3d 782 (2013).
Evidence is sufficient if sufficient evidence exists to persuade a rational person of the truth of the
matter asserted. Fergen, 174 Wn. App. at 397. The supporting facts relied on by a party for a
theory and instruction, “‘must rise above speculation and conjecture.’” Fergen, 174 Wn. App. at
397 (quoting Bd. of Regents of Univ. of Wash. v. Frederick & Nelson, 90 Wash.2d 82, 86, 579 P.2d
346 (1978)).
When a defendant’s actions are the proximate cause of the plaintiff’s injury, he or she is
liable for negligence. Albertson v. State, 191 Wn. App. 284, 296, 361 P.3d 808 (2015). “An act
generally is a proximate cause of an injury if it produces the injury.” Albertson, 191 Wn. App. at
296-97. “The trier of fact must determine if an intervening act has broken the causal chain between
the conduct of the defendant and the injury of the plaintiff.” Maltman v. Sauer, 84 Wn.2d 975,

No. 54661-2-II
17
982, 530 P.2d 254 (1975). An intervening act that rises to the level of a superseding cause relieves
a defendant of liability. State v. Meekins, 125 Wn. App. 390, 397-98, 105 P.3d 420 (2005).
“‘Whether an act may be considered a superseding cause sufficient to relieve a defendant
of liability depends on whether the intervening act can reasonably be foreseen by the defendant;
only intervening acts which are not reasonably foreseeable are deemed superseding causes.’”
Cramer, 73 Wn. App. at 520-21. “‘The foreseeability of an intervening act, unlike the
determination of legal cause in general, is ordinarily a question of fact for the jury.” Cramer, 73
Wn. App. at 521 (quoting Anderson v. Dreis & Krump Mfg. Corp., 48 Wn. App. 432, 442, 739
P.2d 1177 (1987)).
Here, NCPI argued that the cecal volvulus was not caused by Ritter’s constipation and
presented expert testimony supporting that assertion. If the jury accepted NCPI’s expert testimony,
then cecal volvulus would not be a reasonably foreseeable consequence of constipation or failing
to follow the bowel protocol. Because NCPI presented evidence that cecal volvulus was not
reasonably foreseeable, the trial court did not abuse its discretion by giving an instruction on
superseding cause.
Further, the instruction given by the trial court was a correct statement of the law and
allowed both parties to argue their theories of the case. The trial court properly instructed the jury
that a superseding cause can break the chain of proximate cause. The trial court also properly
instructed the jury that a superseding cause is an independent cause that could not be reasonably
anticipated. The instructions allowed Iverson to argue her theory of the case, which was that the
cecal volvulus was caused by the constipation and, therefore, was directly in the chain of proximate
cause from NCPI’s failure to follow bowel protocol to Ritter’s death. Because the trial court’s

No. 54661-2-II
18
instructions were supported by sufficient evidence, correctly stated the law, and allowed both
parties to argue their theory of the case, the trial court’s jury instructions were proper.
Accordingly, the trial court’s decision to give the jury instructions on superseding cause was not
error.
The trial court did not commit error when it excluded evidence and testimony related to
the DSHS investigation and when it instructed the jury on superseding cause. Accordingly, 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.
PRICE, J.
We concur:
CRUSER, P.J.
VELJACIC, J.