* William Tisdale, Respondent v. Apro LLC., Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
WILLIAM TISDALE, No. 56067-4-II
Respondent,
v.
APRO LLC, a Delaware Limited Liability
Corporation and JOHN DOES 1-10,
PART PUBLISHED OPINION
Appellants.
GLASGOW, C.J.—Terrence Sablan entered a convenience store owned by APRO LLC and
attempted to rob the store. William Tisdale entered the store in the midst of the robbery, and the
clerk asked Tisdale to call 911. When Sablan left the store, he began rummaging through Tisdale’s
unlocked car in the parking lot. Tisdale confronted Sablan in the parking lot, and Sablan repeatedly
struck Tisdale with an aluminum baseball bat, fracturing his skull and requiring hospitalization.
After the assault, Tisdale began having seizures and he experienced cognitive and other related
symptoms of brain injury.
Tisdale sued APRO for negligence based on its failure to ensure customer safety in
compliance with industry standards. Sablan was not named as a defendant.
The trial court refused to instruct the jury to segregate damages caused solely by Sablan’s
intentional conduct and not proximately caused by APRO’s negligence, even though both parties
sought such an instruction. When APRO told the jury in closing argument that Washington law
required it to segregate damages caused by intentional tortfeasors, the trial court sustained an
Filed
Washington State
Court of Appeals
Division Two
December 28, 2022
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No. 56067-4-II
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objection to the argument as a misstatement of law. Furthermore, the special verdict form did not
allow the jury to segregate damages attributable to Sablan.
The jury found that APRO was negligent and that Tisdale was contributorily negligent and
responsible for 10 percent of his own damages. After deducting Tisdale’s contributory portion, the
jury awarded Tisdale $81.9 million in damages. The trial court then denied APRO’s motion for
remittitur or a new trial.
APRO appeals. It argues the trial court erred by refusing to issue the proposed jury
instruction on segregation of damages. APRO asks this court to reverse the damage award and
remand for a new trial.
In the published portion of this opinion, we hold that the trial court erred when it failed to
instruct the jury to segregate damages proximately caused by APRO’s negligence from damages
caused solely by Sablan’s intentional conduct. When combined with the special verdict form and
the sustained objection at closing argument, this lack of instruction was a misstatement of law,
misleading, and prejudicial.
We remand for retrial on damages only. The fact finder must first determine the total
amount of damages and then segregate the portion of the total damages, if any, caused solely by
Sablan’s intentional conduct. The jury’s determination that Tisdale is 10 percent contributorily
negligent need not be relitigated, so the trial court must then apportion to Tisdale 10 percent of the
remainder after segregation, and APRO will be responsible for 90 percent of the remainder after
segregation.
We resolve the remaining issues APRO has raised on appeal in the unpublished portion of
this opinion.
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No. 56067-4-II
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FACTS
I. BACKGROUND
One night in November 2015, Sablan entered a convenience store that APRO owned and
asked the clerk to call the police because he was being followed. After a few moments he changed
his mind and left the store. Several minutes later, Sablan returned to the store and removed
cigarettes from a rack near the cash register, indicating that he intended to leave without paying
for them. The clerk took the cigarettes out of Sablan’s hand and pointed to the store’s security
cameras. Sablan then threatened the clerk with a baseball bat and ordered the clerk to open the
store’s safe. Tisdale entered the store, and the clerk asked Tisdale to call the police. Sablan then
left the store. The clerk called 911.
Tisdale’s unlocked car was in the parking lot near the store’s door. Sablan began to rifle
through Tisdale’s car. While the clerk was on the phone with emergency services, Tisdale left the
store and confronted Sablan in the parking lot. Sablan struck Tisdale multiple times in the head
with the baseball bat. Sablan then took Tisdale’s keys and drove away in Tisdale’s car.
When he was taken to a hospital, imaging showed that Tisdale had multiple skull fractures,
bleeding inside his brain, and damage to his brain’s frontal and temporal lobes. After the incident,
Tisdale began having seizures, vision problems, and tinnitus. He reported depression, anxiety, and
post-traumatic stress disorder. A MRI in 2019 showed that part of Tisdale’s brain had atrophied
and would not recover. Cognitive problems limited his ability to live alone or retain jobs requiring
complex tasks.
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II. PRETRIAL
In 2019, Tisdale sued APRO, alleging that APRO “negligently failed to adopt,
implement[,] and enforce industry standards or policies and procedures to ensure customer safety
and security,” causing his injuries. Clerk’s Papers (CP) at 11. He also alleged that the clerk, as
APRO’s employee, negligently failed to comply with industry standards and APRO’s polices to
ensure Tisdale’s safety as a business invitee. Tisdale sought damages for his physical injuries, past
and future medical expenses, pain and suffering, mental and emotional distress, loss of enjoyment
of life, and loss of earning potential. Tisdale later expressly abandoned his claims for lost wages
and past medical expenses.
APRO alleged in its answer that Tisdale was partially responsible for his own injuries and
that Sablan’s and Tisdale’s actions were the proximate cause of Tisdale’s injuries. Relying on
Tegman v. Accident & Medical Investigations, Inc.,1 APRO asserted that damages from Sablan’s
intentional acts “must be segregated from” any damages assigned to APRO. CP at 23.
During motions in limine, Tisdale moved to exclude any testimony or argument that would
allow the jury “to apportion fault to a non-party intentional tortfeasor” such as Sablan. CP at 145.
Tisdale argued that under Welch v. Southland Corp.,2 a case that predated Tegman, a negligent
defendant “was not allowed to segregate damages to [an intentional tortfeasor].” CP at 146. In
return, APRO moved to exclude testimony and argument that sought damages from APRO that
were solely attributable to Sablan’s intentional conduct or Tisdale’s own conduct, relying on
1 150 Wn.2d 102, 75 P.3d 497 (2003).
2 134 Wn.2d 629, 952 P.2d 162 (1998).
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Tegman and Division One’s more recent decision in Rollins v. King County Metro Transit.3 APRO
argued that a negligent defendant cannot be forced to pay damages stemming solely from the
intentional tort of a nonparty, here Sablan.
The trial court disagreed. Citing Welch, the trial court reasoned that “a defendant is not
entitled to apportion liability to an intentional tortfeasor.” CP at 589. The trial court denied
APRO’s motion and granted Tisdale’s motion.
III. JURY INSTRUCTIONS AND VERDICT
A. Instruction on Segregating Damages
APRO proposed a jury instruction that would have told the jury to segregate damages
caused by APRO’s negligence from damages caused solely by Sablan’s intentional torts, consistent
with the instruction given in Rollins:
In calculating a damage award, you must not include any damages that were caused
by intentional act[s] of a non-party and not proximately caused by negligence of
the defendant. Any damages proximately caused by the intentional act[s] of a non-
party and not proximately caused by negligence of the defendant must be
segregated from and not made a part of any damage award against the defendant.
CP at 629 (alterations in original). Tisdale proposed a similar instruction. The first sentence was
functionally identical, while Tisdale’s second sentence read, “Any damages caused solely by
Terrence Sablan and not proximately caused by the negligence of APRO, LLC, must be segregated
from and not made a part of any damages award against APRO.” CP at 993. The trial court’s
instructions to the jury did not include either party’s proposed language on segregation.
3 148 Wn. App. 370, 199 P.3d 499 (2009).
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Instead, the trial court’s instruction 15 closely tracked Washington Pattern Instruction
15.04 to explain that injuries can have multiple proximate causes and that the jury should find for
APRO “if you find that the sole proximate cause of injury or damage to the plaintiff was the act of
some other person who is not a party to this lawsuit.” CP at 1352; see 6 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS CIVIL 15.04, at 203 (7th ed.) (WPI). APRO did not
contend instruction 15 was incorrect, only that the trial court should also have given an instruction
on segregation of damages.
Instruction 23 addressed contributory negligence, but not segregation of damages caused
solely by intentional torts. It instructed that if the jury ruled for Tisdale, “then you must first
determine the amount of money required to reasonably and fairly compensate the plaintiff for the
total amount of such damages as you find were proximately caused by the negligence of [APRO],
apart from any consideration of contributory negligence.” CP at 1360.
APRO objected to instruction 23, seeking “a separate Rollins instruction that tracks the
actual language from the case. It should be a standalone . . . or independent instruction.” 10
Verbatim Report of Proceedings (VRP) at 1944-45. A Rollins instruction would have told the jury
that the damage award against APRO must not include any damages caused by Sablan’s intentional
acts that were not proximately caused by APRO’s negligence. 148 Wn. App. at 379.
APRO also proposed a special verdict form that asked if Sablan acted intentionally, and if
that intentional conduct was a proximate cause of Tisdale’s injury. It then asked, “Was Terrence
Sablan’s intentional conduct the sole proximate cause of a portion of injury to Plaintiff?” and,
“What percentage of injury to Plaintiff was proximately caused by Terrence Sablan’s intentional
conduct?” CP at 983. It included a direction: “You must segregate the damages attributable to
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Terrence Sablan’s intentional conduct that proximately caused injury to Plaintiff and not include
them as part of any damage award [for negligence].” CP at 983 (emphasis omitted).
The trial court declined to give the jury APRO’s special verdict form. The special verdict
form that the trial court instead adopted asked the jury to determine if APRO was negligent and
whether that negligence was a proximate cause of Tisdale’s injury. The form then asked, “What
do you find to be the plaintiff’s amount of total damages? Do not consider the issue of contributory
negligence, if any, in your answer.” CP at 1333 (boldface omitted). The verdict form also asked
the jury to determine if Tisdale was negligent and if his negligence was a proximate cause of his
own injury. The verdict form then read, “Assume that 100% represents the total combined fault
that proximately caused the plaintiff’s injuries. What percentage of this 100% is attributable to the
negligence of APRO LLC [and] what percentage of this 100% is attributable to the plaintiff’s
negligence? Your total must equal 100%.” CP at 1334. The verdict form allowed the jury to divide
the 100 percent of fault only between APRO and Tisdale. Nothing in the instructions or special
verdict form explained any difference between apportioning fault or liability on one hand and
segregating damages on the other hand.
APRO objected to the special verdict form because it “does not provide the jury the
opportunity to segregate what portion of plaintiff’s damages were caused by Sablan’s intentional
conduct . . . . It’s only reasonable for the jury to show that the jury actually did that in the verdict
form.” 10 VRP at 1945. The trial court did not modify any of the instructions or the verdict form
as a result of APRO’s objections.
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B. Closing Argument and Verdict
APRO returned to the issue of segregating damages during its closing argument: “[I]n
Washington, the law states that the jury must segregate damages caused by intentional tortfeasors.
That would be Mr. Sablan.” 11 VRP at 2013. Tisdale objected, arguing that the comment was a
misstatement of the law, and the trial court sustained the objection.
The jury asked a question during deliberations, seeking “‘clarification’” on instruction 15,
which explained proximate cause and told the jury it should return a verdict for APRO if it found
that a nonparty was the sole proximate cause of Tisdale’s injuries. 12 VRP at 2033. The trial court
instructed the jury to “‘reread the instructions as a whole.’” Id. at 2034.
The jury found APRO negligent and that APRO’s negligence proximately caused Tisdale’s
injuries, and the jury concluded Tisdale was entitled to $91 million in damages. The jury found
that Tisdale was contributorily negligent and responsible for 10 percent of his damages, leaving
APRO responsible for 90 percent of the damages, or an award of $81.9 million.
Reiterating many of the arguments recited above, APRO moved for a new trial, and the
trial court denied the motion. APRO timely appealed.
ANALYSIS
I. SEGREGATION OF DAMAGES INSTRUCTION
APRO argues that the trial court erred by refusing to instruct the jury to segregate the
damages caused by APRO’s negligence from the damages caused solely by Sablan’s intentional
conduct. APRO contends that the verdict form compounded the instructional error by not allowing
the jury to segregate damages between those arising from Sablan’s intentional conduct from
APRO’s negligence. And APRO argues that it was prejudiced when the trial court refused its
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No. 56067-4-II
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proposed instruction and when the trial court sustained an objection to APRO’s closing argument
about segregating damages. We agree and remand for a new trial solely on the issue of damages.
We review the language and wording of jury instructions for abuse of discretion. In re Det.
of Taylor-Rose, 199 Wn. App. 866, 880, 401 P.3d 357 (2017). We also review a decision to not
issue a jury instruction for abuse of discretion. Rekhter v. Dep’t of Soc. & Health Servs., 180 Wn.2d
102, 120, 323 P.3d 1036 (2014). “A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds.” Taylor-Rose, 199 Wn. App. at 880. But claims of
legal error in jury instructions are reviewed de novo. Paetsch v. Spokane Dermatology Clinic, P.S.,
182 Wn.2d 842, 849, 348 P.3d 389 (2015).
“‘Jury instructions are sufficient when they allow counsel to argue their theory of the case,
are not misleading, and when read as a whole properly inform the trier of fact of the applicable
law.’” Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P.3d 289 (2012)
(quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996)). “If any of these
elements are absent, the instruction is erroneous.” Id. An erroneous instruction that prejudices a
party is reversible error. Id. “Prejudice is presumed if the instruction contains a clear misstatement
of law; prejudice must be demonstrated if the instruction is merely misleading.” Id. Misleading
closing argument can contribute to prejudice. Id. at 876.
A. Segregation of Damages
RCW 4.22.070(1) provides, “In all actions involving fault of more than one entity, the trier
of fact shall determine the percentage of the total fault which is attributable to every entity which
caused the claimant’s damages.” The entities whose percentage of fault the trier of fact should
determine include the plaintiff, “defendants, third-party defendants, entities released by the
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No. 56067-4-II
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claimant, entities with any other individual defense against the claimant, and entities immune from
liability to the claimant.” RCW 4.22.070(1). The definition of “fault” in chapter 4.22 RCW does
not include intentional torts. RCW 4.22.015.
In Welch, a convenience store patron was robbed and shot by another patron who was never
found. 134 Wn.2d at 631. Welch sued the store for failing to maintain a safe premises for business
invitees, and the store argued as an affirmative defense that any fault should be apportioned with
the intentional acts of the robber and Welch’s own negligence. Id. Welch moved for partial
summary judgment to strike the apportionment defense, which the trial court denied. Id. The
Supreme Court then reversed, holding, “Intentional acts are not included in the statutory definition
of ‘fault,’ and a defendant is not entitled to apportion liability to an intentional tort-feasor.” 134
Wn.2d at 630 (emphasis added) (citing RCW 4.22.015).
Several years later, in Tegman, the Supreme Court addressed joint and several liability for
negligent tortfeasors, but also discussed segregation of damages where there are both intentional
and negligent tortfeasors. 150 Wn.2d at 115. Tegman sued a law firm and several of the firm’s
staff and attorneys for negligence and an array of intentional torts. Id. at 106-07. A nonlawyer in
the firm had forged Tegman’s signature on a settlement agreement without telling Tegman about
it and retained the resulting settlement money in a nontrust account. Id. at 106. A jury found two
attorneys and a paralegal liable for negligence and legal malpractice and held them jointly and
severally liable for all of the damages awarded. Id. at 107. One of the attorneys who was solely
negligent appealed, arguing that she should not be jointly and severally liable with intentional
tortfeasors. Id. She asserted the “damages due to intentional torts must be segregated, and that
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under RCW 4.22.070(1)(b) she [was] jointly and severally liable only for . . . that portion of the
damages resulting from negligent acts.” Id. at 107-08.
The Supreme Court agreed and held that “the damages resulting from negligence must be
segregated from those resulting from intentional acts” and that once the intentional damages had
been segregated, the defendants who were negligently at fault within the meaning of RCW
4.22.070(1) were jointly and severally liable “as to all remaining damages.” Id. at 105, 115. Thus,
the attorney who was only negligent was not liable for any of Tegman’s damages that resulted
from intentional torts. Id. at 119. The Supreme Court remanded for segregation of damages. Id. at
119-20.
The Supreme Court also explained that this segregation should occur even in cases where
the harm is indivisible, like in Tegman where negligent parties failed to protect the plaintiff from
others who intentionally inflicted harm. See id. at 116-18. The court reasoned, “‘It does not follow
that simply because the harm is indivisible that there is no basis for apportionment. It is the
responsibility for causing the harm that should be the focus of the inquiry.’” Id. at 117 (internal
quotation marks omitted) (quoting Gregory C. Sisk, Interpretation of the Statutory Modification
of Joint and Several Liability: Resisting the Deconstruction of Tort Reform, 16 U. PUGET SOUND
L. REV. 1, 41 (1992)).
The Tegman dissent explained that the majority opinion significantly changed the law.
First, the majority disrupted the prior common law rule that “negligent actors could not reduce
their liability by comparing fault to intentional actors, though they could [under Welch] reduce
their liability by the fault of negligent parties.” Id. at 123 (Chambers, J., dissenting). Similarly, the
majority’s holding did away with the prior rule that, when one actor’s negligence allowed another
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actor to commit an intentional tort, “the negligent tortfeasor could not expect any reduction of
liability.” Id. at 127 (Chambers, J., dissenting). Nevertheless, the majority maintained that damages
arising from intentional torts had to be segregated and that segregation of negligent and intentional
damages was feasible even in cases involving indivisible harm. Id. at 117.
Then in Doe v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, plaintiffs
who were sexually abused by their stepfather sued both their stepfather and the church for
intentional infliction of emotional distress, and they included a claim of negligence against the
church for failure to protect. 141 Wn. App. 407, 414, 167 P.3d 1193 (2007). Division One
interpreted Tegman to hold that it was appropriate for the trial court to instruct the jury “to
segregate damages resulting from negligence from those resulting from intentional acts.” Id. at
438. The Doe court emphasized the Supreme Court’s reasoning that an indivisible harm does not
prevent the segregation of damages between negligent and intentional tortfeasors. Id. at 440.
Division One reaffirmed that interpretation two years later in Rollins. Rollins and others
were attacked by a group of unknown teenagers on a King County Metro bus. 148 Wn. App. at
373-75. The plaintiffs sued only King County Metro for negligence and not any of the assailants.
Id. at 372-73. The trial court specifically instructed the jury to segregate damages:
“In calculating a damage award, you must not include any damages that were
caused by acts of the unknown assailants and not proximately caused by negligence
of the defendant. Any damages caused solely by the unknown assailants and not
proximately caused by negligence of defendant King County must be segregated
from and not made a part of any damage award against King County.”
Id. at 379 (quoting record). King County Metro argued that the trial court should have been
required to issue additional instructions placing the burden on the plaintiffs to establish the
percentage of damages resulting from negligent versus intentional conduct. Id. at 380. Division
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One disagreed, explaining, “How to instruct on damages will often depend upon the circumstances
of the case, which is one reason for the discretion invested in the trial judge. Here, the practical
question was how to focus the jury upon the damages caused by the negligent defendant.” Id. at
382 (footnote omitted). “The instructions accomplished that and properly stated the law.” Id. Thus,
the Rollins court relied in part on the jury instruction to affirm in that case, where the intentional
tortfeasors were not defendants and where the harm was arguably indivisible because the claim
against King County Metro involved a failure to protect against violence from other riders. Id. at
373, 382.
In sum, the Tegman court held that damages must be segregated among named defendants
between intentional and negligent tortfeasors, even when the harm is indivisible. 150 Wn.2d at
117. And Division One has applied Tegman to uphold the initial segregation of damages between
nonparty intentional tortfeasors and negligent defendants. Rollins, 148 Wn. App. at 382.
We agree with Division One and further conclude that where an intentional tortfeasor is
not a party, the trial court must give a Rollins instruction to the jury. In cases with both allegedly
negligent defendants and nonparty intentional tortfeasors, the trial court must include an
instruction ensuring the jury understands that any damages caused solely by the intentional
tortfeasor and not proximately caused by negligence of the defendant must be segregated from and
not made a part of any damage award against the negligent defendant. See id.
B. Instructions in the Present Case
Both Tisdale and APRO proposed instructions that were similar to the one that Division
One found to be sufficient in Rollins, but the trial court did not give either instruction to the jury.
See Crittenden v. Fibreboard Corp., 58 Wn. App. 649, 655, 794 P.2d 554 (1990). Instead, the trial
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court gave instruction 15, modeled on WPI 15.04, explaining that injuries can have multiple
proximate causes and that the jury should find for APRO “if you find that the sole proximate cause
of injury or damage to the plaintiff was the act of some other person who is not a party to this
lawsuit.” CP at 1352. The trial court also gave instruction 23, which APRO objected to, telling the
jury that if it found for Tisdale, it had to “first determine the amount of money required to
reasonably and fairly compensate the plaintiff for the total amount of such damages as you find
were proximately caused by the negligence of [APRO], apart from any consideration of
contributory negligence.” CP at 1360.
APRO also objected to the special verdict form, which allowed the jury to apportion 100
percent of the “total combined fault” between APRO and Tisdale alone, and the form required the
responsibility of these two parties to add up to 100 percent. CP at 1334. Nothing in the special
verdict form or in the jury instructions distinguished between apportioning fault and segregating
damages. The special verdict form did not allow the jury to find Sablan responsible for any portion
of Tisdale’s damages.
The trial court was correct that Tegman addressed the joint and several liability of at-fault
defendants when the plaintiff is not at fault. 150 Wn.2d at 118-19. But the Tegman court also held
that at-fault defendants “are not jointly and severally liable for the intentionally caused damages”
that their conduct did not proximately cause. Id. at 119.
Here, the trial court’s instructions and the verdict form required the jury to “first determine
the amount of money required to reasonably and fairly compensate the plaintiff for the total amount
of such damages as you find were proximately caused by the negligence of [APRO],” but the
instructions identified only contributory negligence as a possible limiting factor. CP at 1360.
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Unlike in Rollins, the instructions did not expressly tell the jury that it should segregate damages
caused solely by Sablan from damages caused by APRO and Tisdale. The jury should have been
instructed to segregate the damages that were solely caused by Sablan’s intentional acts from those
that were proximately caused by APRO’s and Tisdale’s negligence, because damages caused
solely by Sablan’s intentional acts do not fall within the “total fault” contemplated by RCW
4.22.070(1). And even in cases involving a failure to protect, it is “appropriate to segregate
damages resulting from negligence from those resulting from intentional acts.” Doe, 141 Wn. App.
at 438. Once the amount of damages attributable solely to negligent at-fault entities has been
determined, that amount can be divided between a contributorily negligent plaintiff and the
negligent defendant or defendants. See Tegman, 150 Wn.2d at 115. Only Tisdale’s contributory
negligence would be subtracted from APRO’s liability at that stage. See RCW 4.22.070(1)
(including plaintiff’s negligence within the definition of “fault”).
Given that there was substantial evidence that Sablan’s intentional tort and APRO’s
negligence were both causes of Tisdale’s injury, APRO was entitled to a Rollins instruction that
explained the jury should segregate the damages that were caused solely by Sablan’s intentional
conduct and not proximately caused by APRO’s negligence. See Cooper v. Dep’t of Lab. & Indus.,
188 Wn. App. 641, 647-48, 532 P.3d 189 (2015). Without a Rollins instruction, the jury
instructions did not correctly state the applicable law. Both the Supreme Court and Division One
have emphasized that even where causes are concurrent or a harm is indivisible, a jury can
segregate damages between intentional and negligent tortfeasors. Tegman, 150 Wn.2d at 117;
Rollins, 148 Wn. App. at 382. And even though both parties in this case requested instructions
similar to the one given in Rollins, the trial court gave neither. Crittenden, 58 Wn. App. at 655.
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The jury instructions addressed only contributory negligence as a limiting factor on APRO’s
damages, not the segregation of intentional damages from fault-based damages resulting from
negligence. It would have been proper to tell the jury to differentiate between damages proximately
caused by APRO’s negligence and those caused solely by Sablan’s intentional conduct, but the
instructions do not discuss segregation at all. Without the required segregation of damages
instruction, the jury may have believed that it could hold APRO liable for all of Tisdale’s damages,
even those that it may have found were caused solely by Sablan.
Tisdale contends that an explicit Rollins segregation instruction was not necessary because
instruction 23 told the jury that it had to start with damages proximately caused by APRO, so all
of the jury’s consideration of liability and damages would have naturally excluded any damages
caused solely by Sablan. Although instruction 23 was true and correct as far as it went, the lack of
an explicit Rollins instruction explaining the jury had to segregate damages caused solely by
Sablan, when combined with the language in the special verdict form, did not give the jury an
accurate statement of the law overall.
Moreover, the absence of a Rollins instruction combined with the special verdict form was
misleading. Despite the presence of an intentional tortfeasor, the pattern verdict form that the trial
court gave the jury considered liability and damages for only negligent conduct. But even
indivisible harms may have concurrent causes with overlapping responsibility for the plaintiff’s
damages. Tegman, 150 Wn.2d at 117; Rollins, 148 Wn. App. at 382. The special verdict form here
required the jury to determine Tisdale’s “total damages” and then it used language that required
apportionment between APRO and Tisdale alone, requiring their percentages to equal 100 percent.
CP at 1333. Even if the jury thought that Sablan was solely responsible for a portion of Tisdale’s
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“total damages,” there was no ability to reflect that determination in the verdict form. Id. Although
the trial court reasoned that it did not need to affirmatively mention segregation of damages caused
solely by Sablan so long as it otherwise correctly stated the law, this reasoning fails to account for
the impact of the reference to “total damages” and segregation between only APRO and Tisdale
in the verdict form.
As a result, the trial court’s instructions, without a Rollins instruction, and the special
verdict form did not adequately inform the jury of the applicable law. Anfinson, 174 Wn.2d at 860.
This error was also misleading because the jury was not specifically instructed to take care to avoid
penalizing APRO for damages stemming solely from Sablan’s conduct that were not proximately
caused by APRO’s negligence. Id.
And even if we assume prejudice is required, APRO suffered prejudice from the misleading
instructions and verdict form. During closing argument, when APRO attempted to inform the jury
that it “must segregate damages caused by intentional tortfeasors,” Tisdale objected to the
argument as a misstatement of the law, and the trial court sustained the objection. 11 VRP at 2013.
On one hand, a truly correct statement of the law would be that the jury must segregate damages
caused solely by intentional tortfeasors and not proximately caused by the defendant’s negligence.
Nevertheless, the trial court’s refusal to allow APRO to argue about segregation of damages arising
solely from Sablan’s intentional tort undermines Tisdale’s argument on appeal that the trial court’s
instructions as given allowed APRO to fully argue just that.
The verdict form gave the jury no indication that it could segregate damages caused solely
by Sablan’s intentional conduct. Even if this case presents concurrent causes of indivisible harm,
the Supreme Court and Division One have held that an indivisible harm can still lead to damages
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that are segregable between intentional and negligent tortfeasors. Tegman, 150 Wn.2d at 117; Doe,
141 Wn. App. at 438. Thus, the lack of a Rollins instruction and the language of the verdict form
prejudiced APRO.
CONCLUSION
It was legal error for the trial court to decline to give a Rollins instruction on segregating
damages when the case involved a negligent defendant and a nonparty intentional tortfeasor. And
collectively, the lack of a Rollins instruction, the sustained objection regarding segregation during
closing, and the special verdict form were both misleading and prejudicial.4
Because of the way the instructions and special verdict form were presented to the jury, we
cannot be certain whether the $91 million verdict represented the total amount of damages caused
by intentional tortfeasors and negligent parties or only the amount caused by negligent parties.
Therefore, we must remand for retrial on damages. After calculating Tisdale’s total damages, the
fact finder must segregate the portion of the total damages, if any, solely caused by Sablan’s
intentional conduct. The jury’s determination that Tisdale is 10 percent contributorily negligent
need not be relitigated, so the trial court must then apportion to Tisdale 10 percent of the remainder
after segregation, and APRO will be responsible for 90 percent of the remainder after segregation.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record in accordance with RCW 2.06.040, it is so ordered.
4 For the same reasons, the trial court erred in not recognizing this error posttrial when APRO
brought a motion for a new trial under CR 59. In light of the error of law in the jury instructions
and verdict form, the trial court should have granted a partial new trial on damages. CR 59(a)(8).
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UNPUBLISHED TEXT
After trial began, APRO moved to compel Tisdale to attend trial. The trial court denied
APRO’s motion because of APRO’s failure to provide timely notice requiring Tisdale’s attendance
under CR 43. The trial court allowed the jury to watch a recording of Tisdale’s deposition but
denied APRO’s motion to admit a recent surveillance video of Tisdale as an alternative to
compelling his appearance. The trial court also declined to instruct the jury on the definition of a
“business licensee” in contrast to a “business invitee.”
APRO argues the trial court erred when it denied its request that the trial court instruct the
jury on the definition of a “business licensee,” denied its motion to compel Tisdale to attend trial,
and excluded the surveillance video. APRO also contends that the trial court erred by denying its
posttrial motion for remittitur.
We hold the trial court did not abuse its discretion when it declined to instruct the jury on
the definition of a “business licensee,” denied the motion to compel Tisdale to appear at trial, and
excluded the surveillance video. We need not address the motion for remittitur.
ADDITIONAL FACTS
I. TRIAL
A week before trial, both APRO and Tisdale submitted witness lists naming Tisdale as a
potential witness. Tisdale, along with over 100 others, was also listed as a possible witness in the
joint statement of evidence. APRO did not send Tisdale’s counsel a CR 43 notice before trial to
compel Tisdale’s attendance and testimony as an adverse party witness.
Trial began on June 2, 2021. Before opening statements, Tisdale’s counsel stated that
Tisdale would not be attending the trial. The next day, APRO moved to require Tisdale to attend
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No. 56067-4-II
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the trial, arguing that Tisdale was “listed as a witness in both parties’ cases, and he hasn’t been
here the entire time.” 4 VRP at 632. Tisdale responded that APRO had not followed the procedure
for compelling attendance of an adverse party under CR 43(f)(1), which required 10 days notice
before trial. When the trial court asked whether Tisdale would be testifying, Tisdale’s counsel said,
“I don’t know. I can’t answer that question, I really can’t.” Id. at 633. APRO continued to protest:
“We’re happy to bring a motion of a notice to attend trial and on a motion to shorten time if we
need to do that, but it’s our position that they’re just keeping him away from the jury at this point
in time.” Id. The trial court reasoned that “in the absence of a motion or a notice,” there is no
“requirement that a party actually attend their trial.” Id. The trial court denied the motion.
Tisdale’s doctor testified that watching videos of the assault or attending the trial would
likely aggravate Tisdale’s post-traumatic stress disorder. Watching a video of the assault during
his deposition had triggered a panic attack.
The following day, APRO filed a written motion to compel Tisdale to attend the trial under
CR 43 and to shorten the time for serving a notice to appear at trial under CR 6. In response,
Tisdale again pointed out that APRO had not timely served Tisdale with a notice to testify in
compliance with CR 43(f). APRO’s counsel orally raised the motion again a few days later,
explaining that he believed Tisdale’s counsel was “concealing” Tisdale from the jury. 5 VRP at
812. The trial court disagreed, explaining, “First, there’s no requirement that a party attend trial.
Second, the fact that somebody puts anybody on their witness list, including their own client,
doesn’t require them to produce them at trial.” Id. at 1033. Because APRO had failed to follow the
CR 43(f) procedures for compelling Tisdale’s attendance, the trial court denied the motion.
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In light of the ruling, APRO moved to admit Tisdale’s videotaped deposition under CR 32,
which allows the use of a witness’s deposition when the witness is unable to testify. Tisdale
opposed the use of the deposition, again arguing that there had not been sufficient notice. The trial
court allowed APRO to play Tisdale’s deposition on the basis that APRO had relied on Tisdale
testifying at trial, explaining, “[I]f you’re not going to produce Mr. Tisdale live, I think that the
defense is well within the rules to play the deposition.” 7 VRP at 1406.
APRO also moved to admit a surveillance video of Tisdale recorded by private
investigators during the trial, which showed Tisdale driving. It also showed him walking with
another person who was carrying alcohol. Tisdale’s counsel stated that Tisdale’s reason for not
attending the trial was because he suffered post-traumatic stress disorder, not because he was
incapable of running errands or driving. The trial court denied the motion, reasoning that APRO
could have compelled Tisdale’s appearance if they had followed CR 43 procedures and that the
surveillance video was not a substitute for appearance.
APRO then argued that the video was admissible as impeachment evidence to undercut
Tisdale’s claim for damages and to raise questions in the jury’s mind about Tisdale’s failure to
attend the trial. “They are claiming that he has complete disability and . . . can’t manage his own
daily affairs. He no longer consumes alcohol and he cannot drive. The surveillance video clearly
contradicts that testimony.” 9 VRP at 1643. The trial court declined to change its ruling.
Throughout the trial several witnesses testified about the extent of Tisdale’s injuries, their
effect on his daily living, and the services he would need going forward. For example, Tisdale,
who was a former professional dancer, briefly worked at a cannabis dispensary after the assault.
His supervisor from the dispensary testified that, while Tisdale could perform his duties as a
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No. 56067-4-II
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cashier, when he was promoted to assistant manager, he could not perform necessary tasks such
as tracking cash deposits and scheduling, and he was fired.
A neurosurgeon testified that a 2019 MRI of Tisdale’s brain showed that part of Tisdale’s
brain tissue had died, leaving scar tissue that “often serve[s] as a focus for seizures.” 5 VRP at 864.
The neurosurgeon stated that because of the damage to his brain, Tisdale was at high risk for
depression, memory problems, and loss of executive function. He also had an increased risk of
dementia from the brain damage and a reduced life expectancy because of his seizures.
Tisdale’s primary doctor testified that Tisdale “had several episodes of multiple seizures”
in the years since the assault. 4 VRP at 763. Tisdale’s doctor also testified that Tisdale suffered
from memory and concentration issues that caused him to frequently forget to take the medication
for his seizures. Tisdale would benefit from a home care companion to help him remember to take
his medications and attend appointments. A life planner testified that the annual cost of a home
care companion was approximately $215,000 per year, with a total cost of roughly $7,670,000 to
$9,250,000 over Tisdale’s projected lifespan.
After Tisdale rested, APRO moved for a directed verdict under CR 50 that Tisdale lost his
status as a business invitee and became a business licensee, when he left the store to confront
Sablan. If Tisdale were a licensee instead of an invitee, then APRO would have had a lesser duty
to protect him from dangerous conditions on APRO’s property. See RESTATEMENT (SECOND) OF
TORTS §§ 342, 344 (AM. L. INST. 1965). The trial court denied the motion, explaining that Tisdale
had not left APRO’s property when he pursued Sablan into the store’s parking lot, so he had
retained his business invitee status throughout the incident.
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No. 56067-4-II
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APRO played Tisdale’s deposition during the presentation of its case. The deposition had
been taken approximately seven months before the trial. In the deposition, Tisdale acknowledged
that he had continued to consume alcohol after the assault despite his health care providers’
recommendations not to. He denied currently consuming alcohol. He also stated that he had
instructions to not operate vehicles for six months after a seizure, although he had continued to do
so. Tisdale admitted that his driver’s license was currently suspended, although he was not sure
why.
II. ADDITIONAL JURY INSTRUCTIONS AND CLOSING ARGUMENT
Instruction 11 defined a “business invitee” as “a person who is either expressly or impliedly
invited onto the premises of another for some purpose connected with a business interest or
business benefit.” CP at 1348. APRO proposed additional jury instructions defining a “business
licensee,” the duty of care owed to a business licensee, and how a business invitee becomes a
licensee by exceeding the scope of their invitation. When the trial court declined to give APRO’s
proposed instructions to the jury, APRO objected, arguing that Tisdale “strayed from the store and
went from a passive bystander to a proactive party by charging Sablan. His status [had] changed
from a business invitee to a licensee, so . . . we think it would have been appropriate to provide the
definition of a [‘]licensee.[’]” 10 VRP at 1944.
Instead, the trial court’s instruction 10 explained to the jury that an owner of a business
owed a duty of care “to a person who has an express or implied invitation to come upon the
premises,” and the duty was “to exercise ordinary care to protect the person from criminal harm
that the operator knows or has reason to know is occurring or about to occur and reasonably
foreseeable criminal conduct by third persons.” CP at 1347.
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No. 56067-4-II
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Instruction 23 informed the jury, “The law has not furnished us with any fixed standards
by which to measure noneconomic damages. With reference to these matters you must be governed
by your own judgment, by the evidence in the case, and by these instructions.” CP at 1361.
During closing argument, Tisdale reminded the jury that he had lost the use of brain tissue,
which affected his memory, attention, and moods. He referenced the expert testimony from
multiple doctors agreeing that Tisdale’s seizure disorder was permanent. Tisdale drew a
comparison to the salaries of professional athletes and corporate executives to argue that if other
corporations “are valuing their assets at hundreds of millions of dollars, then APRO should be
valuing their assets and their customers who are coming in and buying their products.” 11 VRP at
1979. He contended that the value of his damages was $91 million. APRO did not object to
Tisdale’s closing argument.
III. MOTION FOR NEW TRIAL OR REMITTITUR
After the jury’s verdict, APRO moved for a new trial or in the alternative, remittitur of the
verdict to $15 million, reiterating many of the arguments recited above.
The trial court rejected APRO’s reiterated legal arguments and found that substantial
evidence supported the jury verdict and damage award. It reasoned that there was conflicting
testimony from multiple experts at trial regarding the extent and lifetime consequences of Tisdale’s
injuries. The trial court reasoned that the jury had found some expert testimony more compelling
than others and denied the motion for new trial or remittitur. APRO then appealed the denial of
the motion.
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No. 56067-4-II
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ANALYSIS
I. BUSINESS LICENSEE INSTRUCTION
APRO argues that the trial court erred by declining to instruct the jury on the definition of
a “business licensee,” and had the jury found Tisdale was merely a licensee at the time of the
assault, that would have reduced APRO’s duty of care. APRO contends the jury should have been
asked to determine as a factual matter whether Tisdale became a licensee when he left APRO’s
store to confront Sablan in the parking lot. APRO claims the instructions instead told “the jury that
Tisdale was an invitee as a matter of law.” Am. Br. of Appellant at 41. We disagree.
When the possessor of land allows public entry for business purposes, they may be liable
“to members of the public . . . for physical harm caused by . . . intentionally harmful acts of third
persons” and for the failure of the possessor to discover the danger and warn visitors or otherwise
protect against it. RESTATEMENT, supra, § 344. The fact that a danger is generally known to the
person injured does not necessarily insulate the possessor of the land from liability. Ford v. Red
Lion Inns, 67 Wn. App. 766, 770, 840 P.2d 198 (1992).
In contrast, a possessor of land is liable for harm to licensees caused by conditions on their
land if the possessor “knows or has reason to know of the condition and should realize that it
involves an unreasonable risk of harm to such licensees, and should expect that they will not
discover or realize the danger,” “fails to exercise reasonable care to make the condition safe, or to
warn the licensees of the condition and the risk,” and “the licensees do not know or have reason to
know of the condition and the risk involved.” RESTATEMENT, supra, § 342.
We note that the denial of a CR 50 motion for a directed verdict does not constitute a ruling
as a matter of law. See Morton v. Lee, 75 Wn.2d 393, 397-98, 450 P.2d 957 (1969) (affirming
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No. 56067-4-II
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the denial of a motion for a directed verdict because reasonable minds could differ on the factual
issue, which was a question for the jury).5 When there is conflicting evidence about a plaintiff’s
status as a licensee or invitee, it is proper to submit the question to the jury. Adkins v. Alum. Co. of
Am., 110 Wn.2d 128, 149-50, 750 P.2d 1257 (1988). However, when the facts regarding a
plaintiff’s entry onto a property are uncontested, “the legal status of the entrant as invitee, licensee,
or trespasser is a question of law.” Ford, 67 Wn. App. at 769.
Here, it was undisputed that the convenience store was open to the public, that the parking
lot was a part of APRO’s property, and that Tisdale entered the property for a business purpose as
a customer of the convenience store. Accordingly, Tisdale was a business invitee.
In Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 205, 943 P.2d 286 (1997), the Supreme
Court expressly adopted Restatement § 344 to hold that “a business owes a duty to its invitees to
protect them from imminent criminal harm and reasonably foreseeable criminal conduct by third
persons. The business owner must take reasonable steps to prevent such harm in order to satisfy
the duty.” There is no duty “unless the harm to the invitee by third persons is foreseeable,” which
“is ordinarily a fact question” for the jury. Id.; see also McKown v. Simon Prop. Grp., Inc., 182
Wn.2d 752, 768, 344 P.3d 661 (2015) (explaining that with regard to Restatement § 344,
“foreseeability is not merely used to determine the scope of a duty already owed, it is a factor in
determining whether the duty is owed in the first place”). While foreseeability is generally
5 “A trial court may grant a motion for a directed verdict only if there is no evidence or reasonable
inference which would support a jury verdict in favor of the nonmoving party.” Bays v. St. Lukes
Hosp., 63 Wn. App. 876, 880, 825 P.2d 319 (1992). “Likewise, the denial of a motion for
a directed verdict should be reversed only if no evidence or reasonable inference exists which
would be sufficient to sustain a verdict for the nonmoving party.” Id.
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No. 56067-4-II
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determined by a trier of fact, it “‘will be decided as a matter of law only where reasonable minds
cannot differ.’” Mortensen v. Moravec, 1 Wn. App. 2d 608, 616, 406 P.3d 1178 (2017) (quoting
Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 477, 951 P.2d 749 (1998)).
The jury instructions in this case explained that a business owed a duty of care “to a person
who has an express or implied invitation to come upon the premises.” CP at 1347. That duty
entailed exercising “ordinary care to protect the person from criminal harm that the operator knows
or has reason to know is occurring or about to occur and reasonably foreseeable criminal conduct
by third persons.” Id. 1347. And the instructions defined a “business invitee” as “a person who is
either expressly or impliedly invited onto the premises of another for some purpose connected with
a business interest or business benefit.” CP at 1348. These instructions were consistent with
Restatement § 344, which the Supreme Court has adopted.
APRO relies on Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 875 P.2d
621 (1994), to argue that Tisdale forfeited his status as a business invitee by leaving the store to
protect his own personal property and confronting Sablan in the parking lot. In Tincani, a zoo
visitor was injured when he fell off a rock after wandering off of the marked trails. 124 Wn.2d at
125-26. Tincani is distinguishable because Tisdale stayed on the public portions of the APRO
property, the store and the parking lot.
APRO argues that another way to exceed the scope of a business invitation is to engage in
conduct unconnected to the purpose of the invitation. APRO relies on Adkins and Beebe v. Moses,
113 Wn. App. 464, 54 P.3d 188 (2002), to argue that Tisdale lost his business invitee status when
he left the store to confront Sablan because confronting Sablan was not a business purpose that
had economic benefit for APRO or Tisdale. In Adkins, a roofer was injured when he reached into
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No. 56067-4-II
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an exhaust vent to retrieve a fallen tube of caulk. 110 Wn.2d at 131. But there, the scope of the
business invitation was governed by a roofing contract that stated what Adkins was invited to do
on the property. Id. at 150. No such written limitations existed here. And in Beebe, the plaintiff
was injured at a family member’s home, and there were facts supporting a conclusion that the
plaintiff was making a social visit when he was injured, rather than visiting the property for a
business purpose. 113 Wn. App. at 468.
Here, APRO’s property was open to the public, and while some conduct or activity could
exceed the scope of an implied invitation to the public for business purposes, it seems clear that
customers were invited to park their cars in APRO’s parking lot. And it is eminently foreseeable
that invitees would interact with others in the parking lot, especially if they thought their cars were
being broken into. The cases APRO cites do not suggest that these facts supported a licensee
instruction. Moreover, the instructions provided the jury with the definition of a “business invitee,”
but they left it for the jury to determine whether Tisdale met that definition. The trial court did not
commit legal error, nor did it abuse its discretion when it declined to give a business licensee
instruction in this case.
II. EVIDENTIARY ISSUES
APRO argues that the trial court erred by denying APRO’s motion to compel Tisdale’s
attendance at trial. APRO contends that it “reasonably relied on Tisdale’s representation in his
witness list and the Joint Statement of Evidence that he would testify at trial, and thus a notice to
attend trial under CR 43 was unnecessary.” Am. Br. of Appellant at 58. And APRO asserts that
declining to require Tisdale to testify at trial prejudiced APRO.
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APRO also argues that the trial court erred by excluding a video of Tisdale filmed by
private investigators during the trial without addressing the Burnet v. Spokane Ambulance6 factors.
APRO insists that the video was admissible under the evidence rules related to relevance, including
ER 403, and that the trial court erred by finding the video irrelevant and cumulative. APRO
contends, “The exclusion of the video, combined with the failure to direct Tisdale to appear at
trial, deprived the jury of the opportunity to fully assess Tisdale’s damages.” Am. Br. of Appellant
at 62. We disagree.
Burnet addressed a trial court order limiting discovery and precluding expert testimony as
a sanction for a violation of a discovery order under CR 37. 131 Wn.2d at 492. Trial courts must
consider the factors from Burnet “before excluding untimely disclosed evidence” because
excluding such evidence “amounts to a severe sanction.” Keck v. Collins, 184 Wn.2d 358, 368,
357 P.3d 1080 (2015); see also Petters v. Williamson & Assocs., Inc., 151 Wn. App. 154, 171, 210
P.3d 1048 (2009) (stating that Burnet applies only to CR 37(b)(2) sanctions).
This case does not involve a discovery violation under CR 37, and APRO does not show
that Burnet has been extended to apply to evidentiary rulings related to relevance or failure to
comply with CR 43. Thus, Burnet is not the correct lens to analyze APRO’s claim of error. Here,
the trial court ruled that APRO had not followed the proper procedures for securing Tisdale’s
appearance at trial under CR 43(f). And the trial court allowed APRO to play Tisdale’s video
deposition as a substitute for live testimony so that the jury could assess his credibility.
6 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). Before excluding evidence as a sanction for a
discovery violation, a court must consider whether the “refusal to obey a discovery order was
willful or deliberate and substantially prejudiced the opponent's ability to prepare for trial” and
whether a lesser sanction would be an adequate remedy. Id.
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Further, we review a trial court’s evidentiary decisions, including those based on relevance,
for abuse of discretion. State v. Orn, 197 Wn.2d 343, 353, 482 P.3d 913 (2021). APRO’s purpose
of presenting the surveillance video was for impeachment, but the video was not admissible for
impeachment purposes. “Evidence offered to impeach is relevant only if (1) it tends to cast doubt
on the credibility of the person being impeached, and (2) the credibility of the person
being impeached is a fact of consequence to the action.” State v. Allen S., 98 Wn. App. 452, 459-
60, 989 P.2d 1222 (1999). APRO offered the video to impeach Tisdale’s assertions about the scope
of his injuries and damages. But Tisdale’s claims for damages were based on expert testimony
from doctors who explained that Tisdale would endure seizures and an array of cognitive and
mental health problems for the remainder of his life. Tisdale did not argue that he was unable to
drive or walk around town, so the video was not properly offered for impeachment purposes.
Finally, even if relevant for impeachment purposes, the video was cumulative under ER
403, which allows for exclusion of relevant evidence “if its probative value is substantially
outweighed” by considerations such as “needless presentation of cumulative evidence.” At least
one of Tisdale’s own witnesses had referred to his continued alcohol consumption as evidence of
lasting brain damage that interfered with his ability to follow recommendations from doctors. And
Tisdale admitted to driving and drinking alcohol even when his doctors recommended against
these things. Thus, the video was cumulative.
In sum, the trial court’s decisions were evidentiary rulings, not discovery sanctions. The
trial court did not exclude all testimony on Tisdale’s alcohol consumption or continued driving,
and it allowed APRO to play Tisdale’s two-hour-long deposition for the jury. Although it would
not have been unreasonable for the trial court to compel Tisdale’s appearance, it was also not an
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No. 56067-4-II
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abuse of discretion under these circumstances to decline to do so but allow the jury to see his
deposition testimony. And APRO has not shown what information the surveillance video would
have provided that was not duplicative of Tisdale’s deposition or other testimony. We hold that
the trial court did not abuse its discretion by refusing to compel Tisdale to attend trial or by
excluding the surveillance video.
For the same reasons, the trial court properly denied APRO’s motion for a new trial based
on the same arguments. And because we remand for a new trial on damages, we need not address
the challenge to the trial court’s denial of remittitur.
CONCLUSION
We remand for a new trial solely on the issue of damages. After calculating Tisdale’s total
damages, the fact finder must segregate the portion of the total damages, if any, solely caused by
Sablan’s intentional conduct. The jury’s determination that Tisdale is 10 percent contributorily
negligent need not be relitigated, so the trial court must then apportion to Tisdale 10 percent of the
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No. 56067-4-II
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remainder after segregation, and APRO will be responsible for 90 percent of the remainder after
segregation. We otherwise affirm.
Glasgow, C.J.
We concur:
Lee, J.
Veljacic, J.
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