Kellie Slater, Appellant V. Northgate Mall Partnership, Respondent

FILED
COURT OF APPEALS DIV
STATE OF WASHINGTON
2019JAN22 AMIO:13
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
KELLIE SLATER, 	) 	No. 77607-0-I
)
Appellant, )
)
v. 	)
)
NORTHGATE MALL PARTNERSHIP, ) 	UNPUBLISHED OPINION
a Delaware general partnership,
FILED: January22, 2019
Respondent. )
VERELLEN, J. — Kellie Slater filed a lawsuit seeking damages for personal
injuries she suffered after she fell and injured herself in a shopping mall parking
lot. A jury awarded damages to Slater equivalent to the amount of medical
expenses she claimed at trial. Slater filed a motion for a new trial on the issue of
noneconomic damages, or in the alternative, for additur. The court granted
Slater’s motion for additur and increased the jury’s verdict by $20,000. Slater
appeals, arguing that the trial court’s award of noneconomic damages is
inadequate in light of the evidence. We affirm.
FACTS
On August 25, 2012, KeIlie Slater fell while attempting to cross what she
believed to be a median strip in the Northgate Mall parking lot in Seattle. Slater
sustained injuries to her foot and the ligaments in her right ankle.

No. 77607-0-1/2
In June 2015, Slater sued the Northgate Mall Partnership, the owner and
operator of the shopping mall, for negligence based on premises liability.1
In September 2017, following a trial, the jury found that Northgate was
negligent and that its negligence was the proximate cause of Slater’s injuries. The
jury determined Slater was entitled to damages of $97,436, an amount that was
exactly equivalent to the amount of medical expenses she claimed. The jury was
instructed it should consider both economic and noneconomic damages in
determining the total damage amount, but the verdict form did not segregate
special damages and general damages. The jury also found Slater was
contributorily negligent and that 50 percent of the damages were attributable to her
negligence.
Slater filed a motion for a new trial, or in alternative, for additur, pursuant to
RCW 4.76.030. Slater argued that the jury failed to award general damages
despite “undisputed” evidence of pain and suffering and disability resulting from
her injury. Northgate opposed the motion, arguing that the jury’s verdict was
within the range of credible evidence and therefore should not be disturbed.
The court granted Slater’s motion for additur and increased the jury’s
verdict by $20,000 to represent an award of general damages. The court’s order
states:
Slater’s initial complaint included the claims of two other individuals who
had similar accidents at the same location. The court dismissed the claim asserted
by one of those plaintiffs. The record does not indicate whether the other plaintiff’s
claim proceeded separately.
2

No. 77607-0-113
Although this court is reluctant to disturb a jury verdict, justice
is not served by the verdict and an award that does not even
acknowledge any pain and suffering based on the uncontroverted
evidence at trial is inconsistent with the damages which were
awarded in the amount of $97,436.28 (prior to contributory
negligence reduction). The court specifically finds that the jury
awarded damages exactly equal to the special damages claimed at
trial. Although there is no way to know with absolute certainty
whether the jury failed to award general damages given that the
verdict form did not itemize the damage award, such a result can be
reasonably inferred given that the verdict was exactly the same as
the plaintiff’s unconverted medical expenses for her foot/ankle injury.
The court notes in this regard that the Defendant did not offer any
medical testimony to rebut the medical testimony on causation and
reasonableness of medical expenses offered by plaintiff.t2~
Slater appeals.
ANALYSIS
Representing herself on appeal, Slater challenges the court’s order granting
additur and awarding her $20,000 for general damages before the contributory
negligence deduction.
An award of additur is made pursuant to RCW 4.76.030. That statute
provides:
If the trial court shall, upon a motion for new trial, find the damages
awarded by a jury to be so excessive or inadequate as unmistakably
to indicate that the amount thereof must have been the result of
passion or prejudice, the trial court may order a new trial or may
enter an order providing for a new trial unless the party adversely
affected shall consent to a reduction or increase of such verdict.
2 Clerk’s Papers (CP) at 336.
3

No. 77607-0-1/4
The question of whether a plaintiff is entitled to general damages turns on the
evidence.3 “Although there is no per se rule that general damages must be
awarded to every plaintiff who sustains an injury, a plaintiff who substantiates her
pain and suffering with evidence is entitled to general damages.”4
Slater claims that the court’s award upon granting additur is inadequate to
compensate her for pain and suffering and other noneconomic damages in view of
the uncontroverted medical evidence she presented at trial.
But Slater failed to designate on appeal any of the evidence presented at
trial. The party presenting an issue for review has the burden of providing an
adequate record to establish the asserted error.5 The failure to provide such a
record precludes appellate review.6 Pro se litigants are held to the same
standards as attorneys and are bound by the same rules of procedure and
substantive law.7
Slater has not provided any part of the verbatim report of proceedings of the
trial, or any of the numerous admitted trial exhibits.8 Therefore, it is impossible to
Palmerv. Jensen, 132 Wn.2d 193, 201, 937 P.2d 597 (1997).
Id.
RAP 9.2(b); State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942
(2012); Stevens County v. Loon Lake Prop. Owners Ass’n, 146 Wn. App. 124,
131, P.3d 846 (2008).
6 Stiles v. Kearney, 168 Wn. App. 250, 259, 277 P.3d 9 (2012).
~ In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993);
Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175
(1997).
° Slater has provided only a transcription of the deposition testimony of an
orthopedic surgeon who treated her.
4

No. 77607-0-1/5
evaluate her claim that the general damages awarded by the court are
inconsistent with the evidence.
Slater relies primarily on this court’s unpublished opinion in Nelson v.
Erickson.9 Nelson is neither precedential nor persuasive as to the issue she
raises.1° In Nelson, after the jury awarded $10,000 for future medical expenses
but expressly declined to award future noneconomic damages, the trial court
granted additur and awarded $3,000 for future noneconomic damages. The
defendant appealed. Upon a review of the evidence presented at trial, this court
upheld the trial court’s decision to grant the plaintiff’s motion for additur. The
court’s analysis focused on whether the jury’s omission of noneconomic damages
was contrary to the evidence, therefore allowing the court to interfere with the
verdict. The decision does not address the sufficiency of the amount of damages
awarded by the trial court. Here, of course, Slater was the party who requested
additur. And as explained, without reviewing all of the evidence, we are unable to
assess her claim that the trial court failed to award an “appropriate amount” of
damages.11
Despite having requested additur as an alternative to a new trial, Slater now
asserts that the trial court was required to order a new trial on damages. She cites
Meinhart v. Anya.12 In that case, after the jury awarded the Meinharts almost all of
~ No. 71709-0-I (Wash. App. Ct. Sept. 14, 2015) (unpublished).
10 See GR 14.1.
~ App Br. at 16.
12 ~ Wn. App. 2d 59, 403 P.3d 973 (2017).
5

No. 77607-0-I/S
their claimed medical expenses but omitted an award of noneconomic damages,
the trial court denied the Meinharts’ motion for a new trial. Division Two of this
court reversed, concluding there was no evidence that contradicted or called into
question the plaintiffs’ evidence of pain and suffering.13 Unlike Slater, it does not
appear that the Meinharts requested or consented to additur. And again, the
conclusion that the trial court abused its discretion in denying the motion for a new
trial was based on the appellate court’s review of the entirety of the evidence.14
Slater also appears to challenge the trial court’s pretrial ruling denying her
motion to compel Northgate to produce incident reports and its ruling limiting the
number of witnesses who were permitted to testify about similar accidents that
occurred in the Northgate parking lot before Slater’s August 2012 fall. In the
absence of the underlying motions and arguments made to the trial court, we
cannot conclude that the trial court abused its discretion. In any event, the jury
found that Northgate was negligent and liable for Slater’s injuries. Accordingly,
13 Id. at 71.
14 Slater also refers to cases resolved by trial court order or by settlement to
support her position that the injury she sustained warranted damages beyond the
amount awarded by the trial court. Reference to these matters is unhelpful for
several reasons but chiefly because the damages awarded in other cases were
based on the specific evidence presented in those cases and are not relevant to
the amount of damages supported by the evidence in Slater’s case. Furthermore,
we do not consider any material in Slater’s appendices that is not included in the
record on appeal. See RAP 10.3(a)(8).
6

No. 77607-0-1/7
even if Slater could establish error, the rulings were not prejudicial and provide no
basis for reversal.15
Finally, to the extent that Slater alleges judicial bias, there is nothing in the
record to support her claim. It does not appear that Slater sought recusal. She
does not point to any specific evidence of bias and merely suggests that some of
the court’s legal rulings reflect bias. But judicial rulings alone almost never
constitute a valid showing of bias.16 Slater’s “[c]asual and unspecific allegations of
judicial bias provide no basis for appellate review.”17
Slater fails to establish that the award of damages was outside the range of
the evidence.
Affirmed.
,rr
WE CONCUR:
/
alA
/
15 	Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702,
728-29, 315 P.3d 1143 (2013) (“When a trial court makes an erroneous
evidentiary ruling, the question on appeal becomes ‘whether the error was
prejudicial, for error without prejudice is not grounds for reversal.”) (quoting Brown
v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571
(1983)).
‘° In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1(2004).
17 Rich v. Starczewski, 29 Wn. App. 244, 246, 628 P.2d 831 (1981).