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STRATEGIES FOR PROVING DIFFICULT OR COMPLEX LIABILITY IN AUTO CASES

By C. Steven Fury & William S. Bailey

Fury Bailey

710 – 10 th Avenue East

Seattle , WA 98102

(206) 726-6600

Lawyers are not magicians as much we may want our clients to think that we are. The only way to prove liability in difficult or complex auto cases is sophisticated legal analysis and hard work, not smoke and mirrors. No amount of trial artistry or negotiation savvy will replace a lack of evidence to support the client's case.

IT ALL STARTS WITH A THOROUGH INVESTIGATION

The evidence that supports your liability theory or theories comes from dedicated and effective investigation. For the police, traffic engineers or others who investigate auto accidents, finding the facts may be the only goal, but for lawyers it is merely the starting point. Facts are useless to our client's case unless they can be converted into admissible and persuasive evidence. For example, measuring skid marks at a scene can be important. Unless these are recorded accurately by a witness with first hand knowledge who can testify at the time of trial, they are useless in presenting the case.

DO IT NOW

Evidence vanishes, disappears, evaporates into thin air. Witnesses forget. Tire marks on the pavement are erased by traffic. Dramatic wrecks of cars are repaired or junked. You may know the information, but unless you take the second step of a lawyer's investigation and preserve that evidence now in a form admissible at trial later , your knowledge is worthless.

Go get it now.

WHAT TO DO

Because the lawyer's task in an investigation is complicated by the need to preserve information as evidence, you cannot simply follow up leads and find out information yourself. What you know as a lawyer cannot be evidence. You cannot testify at trial as to crucial information unless you give up your role as a lawyer. Any investigation that you do requires that you ensure that someone else has testimonial knowledge.

Nonetheless, do it yourself. Go to the scene. Talk to the witnesses. The knowledge you gain by personal investigation will enormously enhance your ability to properly examine witnesses and to accurately and persuasively convey how the event occurred.

You also need to make sure what is found in an investigation is preserved as evidence in an admissible and persuasive form. As a trial lawyer you know the rules of evidence and principles of trial practice. You can direct whoever is ferreting out the information how to preserve persuasive evidence. You can get witness and the facts together so that the witness has testimonial knowledge. If measurements of the scene of an accident are important to your case, you can determine who is the best, most credible witness to testify at trial. Your client? Investigator? Accident reconstruction expert? An eyewitness to the accident who returns to the scene later? The investigating officer? A surveyor whose only role is measurement? Get that witness to the scene while everything is still there to measure and make sure everything is recorded. You have now created a witness to important facts which the witness did not know before.

An investigator is well worth the expense. First, and perhaps most importantly, the investigator can be the witness you create to take measurements or make a diagram or take photographs. If an investigator personally interviews a hostile witness who refuses to sign a statement you still have a way to impeach the witness.

Second, an investigator is a second pair of eyes and legs which permit you to be not only more efficient, but more effective. A second pair of eyes, if they know what to look for, may see things that you would miss.

Third, investigators can go some places and do some things more readily than lawyers. Face it, many people are intimidated or frightened by lawyers, or just plain don't like us. An investigator may be able to get a timid witness to talk where a lawyer could not. An investigator can approach a potential defendant and perhaps get a statement. (Nonetheless, an investigator who works for you must comply with the code of Professional Responsibility concerning contact with an unrepresented person RPC 4.3.) Some lawyers look like lawyers and can't help it. An investigator can blend in with the scenery.

Finally, though you want a good investigator who may be busy, the investigator may not be as busy as you. If you are in a series of depositions, out of town or in trial, you may not be able to start the investigation immediately. The investigator can.

WHAT DO YOU LOOK FOR?

The rules of evidence tell lawyers what to look for in an investigation. Generally we want witnesses with testimonial knowledge, or real (things that can be brought into the courtroom), photographic and documentary evidence. As an investigator you can find or create witnesses and photographs, preserve real evidence and hunt down documents.

How do you do it? You get out of your office. Almost no part of an investigation can be done in your office except perhaps requesting documents.

A good investigation must be both thorough and thoughtful. To be thorough, you need to follow up any possible lead. The use of checklists can be helpful to the uninitiated or to the jaded practitioner who knew it but has forgotten over time.

To be thoughtful, you need to know something of the technical aspects of investigation and reconstruction. Traffic Collision Investigation (New Traffic Accident Investigation Manual) By Kenneth S. Baker (New edition 2001) “the definitive guide to collision investigation” is published by the Northwestern University Center for Public Safety. You can order from Ms. Zoila Sosa (telephone: 800-323-4011; e-mail: z-sosa@northwestern.edu ), or on line at http://server.traffic.northwestern.edu . Traffic Collision Investigation is doubly valuable because it is recognized as reliable by most law enforcement officers who investigate car crashes, many of whom have studied at the Center. The Center also publishes other useful texts, including Traffic Accident Reconstruction (Volume 2 of Traffic Collision Investigation) by Lynn B. Fricke et al. (First Edition, 1990)

THE BASICS OF AN INVESTIGATION

Do it yourself. If you are familiar with the physical location it will assist you later. Satisfy yourself that all evidence that can be gathered at the scene has been preserved. Take your investigator to make sure you have a witness able to testify at trial. What do you look for:

1. General Layout. Make measurements. Make a good diagram. Record the measurements on the diagram. Good diagrams can later be used at trial as demonstrative aids.

If there is a lot to be recorded, you may want to have a survey done by a qualified surveyor. In a major case involving substantial issues of liability such as a highway design case you will frequently need a survey eventually. Do it now to make the surveyor a witness to the conditions shortly after the accident but that disappear over time. On some surfaces such as a gravel roadway or construction site even measurements will change over time.

If you do not want to incur the expense of the surveyor but want an accurate scale diagram, check with the state department of transportation or the city or county engineering department to see if you can get an as built drawing or detailed map of the particular roadway or intersection. Often you can use these as a basis for a diagram of the accident.

Read Traffic Collision Investigation about how to take measurements.

2. Identify The Area And Details. Obviously, you need to know the street or road names.

•Is it public or private, rural or urban?

•What is the nearest mile post?

•What is the surface? Concrete, blacktop, gravel? What is the contour? What are the lane markings?

•How much traffic is there?

•What traffic control devices, including signs, are in the area? Check the signs for some distance from the scene in all directions.

•Is there any dangerous condition in the roadway such as a sharp curve or a hill? Are there warning signs?

•Are there any defects in the roadway such as cracks or drop offs?

•Is there debris in the highway? Where is it? What is the location with reference to other marks on the highway or fixed objects? Debris from the accident can help identify the point of impact.

•Are there tire marks? What is the length, direction, width and general nature of the tire marks. Are they skid marks, scuff marks, rolling print marks or other marks?

•Are there gouges in the pavement or furrows in the shoulder?

•What is the lighting in the area? Where are the lights located? What type of fixtures and how far from the ground?

3. Take Photographs. To photograph everything in sight may be a good general adage, but it is not sufficient in itself. Having numerous photographs which do not illustrate the issues can be confusing to the jury and not particularly helpful (though better than no photographs at all). Remember, with every photograph you take, you create evidence. A few tips:

•Take general wide-angle shots of the whole area showing the general physical layout.

•Take close-up shots of particular details such as tire marks, gouge marks, debris, etc. Whenever you take a close-up shot, take a shot further back to show where the close-up was taken.

•Take photographs at right angles, i.e., looking along the roadway and looking across the roadway at reference points.

•Use a reference in the photograph for perspective. Any rectangular sheet such as a legal pad or a specially prepared "perspective grid" can be used in a photograph to later diagram the scene. By use of a perspective grid, an accurate scale diagram can be drawn even if detailed measurements were not taken. This can permit you to simply take photographs at the time and save the expense of making a scale diagram until later. There is a detailed explanation of this process in Traffic Collision Investigation .

•Get aerial photographs. They can be impressive, show important detail and sometimes used instead of maps. - If you want to avoid the expense of hiring an aircraft, you may be able to get one from the Department of Transportation (http://www.wsdot.wa.gov/ppsc/aerial/)or a commercial service such as Walker & Associates, Inc., Photogrametric Engineers, 6264 Stanley Avenue South , Seattle , Washington 98108 (telephone 763-9858). There are now commercial website s from which you can obtain aerial or satelite photos or maps such as www.terraserver.com , www.city-scenes.com or www.atrphoto.com . Alternatively, if there is a tall building nearby, you may be able to use a photograph from the building in place of an aerial shot.

•Take photographs of the driver's view, either in a car or from a tripod. You need the measurements for the car (ground to driver's seat) and driver (seat to eye level) to be accurate.

•Videotape a drive through. Playing back a videotape repeatedly, or in slow motion, can highlight features you may miss the first time

•Videotape measurements of the scene.

•Be creative with videotape. Reenactments. Investigation. Experiments. Take notes. But be careful it may become discoverable.

•Use film rather than videotape for night photography. Hire a photographer for night photography.

•If you miss taking all the photographs you need shortly after the accident, or if you are not retained until long after, take photographs on the anniversary date and time of the accident. The vegetation and lighting will be as close to the same as you can get. Your attention to detail will not go unnoticed.

4. Canvass The Area. You may well know before you go to the scene the names of witnesses to the accident. Talk to them if they are in the area. Other witnesses may be found in the neighborhood of the accident. This simply requires going door to door and talking to people to find out what they know about the accident, prior accidents, the defendant or other issues. You can get some very useful information. A Involved.

Damage done to the cars and trucks in an accident can demonstrate the force of impact. Even where liability is clear photographs showing the amount of damage can be persuasive that it was a major accident. We all know the use the defense tries to make of no or minimal damage photos in a low impact case. If you have crash damage, use it!

Where liability is unclear, the nature of the damage to the vehicles can prove how the accident happened, the speed of the vehicles and the angle of impact. Evidence from inspection of the vehicles is critical to determine whether there was a defect which contributed to the accident. You may have a product liability claim or a claim against a repairer of the car. If a defect in the defendant's car (such as sudden brake failure) is to be raised as a defense, examination of the car or the offending part may be the only way to respond to the defense.

Some of the things to look for:

1. The Nature Of The Damage. Where is the damage? How much damage? Examine the car both inside and out. Take measurements.

2. Take Photographs Of The Damage. Photograph everything on the car. Take both photographs that permit you to see the entire car and close-ups of particular damage.

Often the car will be towed to a junkyard. Taking a picture of a car in a junk yard can be difficult and at times less than dramatic. If you are trying to show severe damage to this car, it is distracting to show a background of smashed cars. There are often tight spaces in the junk yard making it hard to get between the cars and take perspective shots.

For a fee, most towing operators will pull the car out into a area where you can get better photographs of it, perhaps without other damaged cars as a backdrop.

3. Consider Preserving The Car Or At Least Parts Of It. However informed you are, and even if you have read and studied Mr. Baker's book, you are likely not to know exactly what to look for or what may become important in responding to the defenses. Keep the cars available not only for further study, but potentially to bring into the courtroom.

4. Identify The Vehicle. Be sure to check the license plate, registration and vehicle identification numbers and make sure you have the right car. Record the information. Photographing or inspecting the wrong vehicle can be worse than embarrassing.

5. There are too many other things to look for on the damaged vehicle to list here. An accident reconstruction expert, or even a good auto bady repair person can help you. For just one example examination of the filaments in tail lights or head lights can be dispositive evidence of whether or not they were on at the time of the accident.

Talk To The Witnesses .

Before you can talk to witnesses, you have to find out who they are. The first, and usually most important, witness is your client. The client interview is the beginning of your investigation and the lead to other information such as the names of other witnesses. The client's personal efforts can help your investigation.

In addition to the client and other witnesses that your client identifies, the following may be useful witnesses:

1. Investigating police officer.

2. The follow-up police officers including accident investigator, accident reconstructionist, commercial vehicle inspectors, etc.

3. Fire Department personnel.

4. Ambulance driver.

5. Tow truck driver.

6. Persons disclosed in documents you obtain.

7. Witnesses listed on the police report.

8. Witnesses who reported the accident to the police and others.

9. Canvass of the scene.

10. When you interview any witness, you should ask if there are other witnesses they are aware of who know anything about the accident.

11. Advertisement.

You should interview the witnesses and make a memorandum for your own references. Make your own judgement concerning the witness' credibility, judgment, character and powers of observation.

Unless the witness is unusually cooperative and friendly, taking a statement is a task which is best left to an investigator.

Taking the statement and getting the assent of the witness to its the contents can be a delicate task. If done by a lawyer, it can be quite imposing for the witness. An investigator can often make it less formal and thus more palatable. If the witness ultimately refuses to sign a statement, the investigator can testify at trial, to what the witness said.

A statement can be recorded in many ways. An investigator can make notes of the interview, prepare a formal typed statement and return it to the witness for signature. In the field, the investigator can write out a handwritten statement and ask the witness to sign it. A tape recorder or a court reporter can be used.

The statement, in most cases, is not itself admissible into evidence. Unless it is a statement from an adverse party, it usually is hearsay. Its primary use is to refresh the witness' recollection or to impeach the witness should the story change. The formality of a court reporter to take a statement may scare off, and ultimately turn off, some witnesses. Using a court reporter (or more preferably a videographer) may be useful for a statement taken from a witness who is at risk of dying to add to its credibility and admissibility pursuant to Evidence Rule 804(b)(2).

Written statements are much preferable to recorded statements. With a written statement, you are in control of how the statement is worded. Facts can be stated in the most direct and favorable way or in a manner to make the statement more useful for later impeachment.

Sometimes you want a "negative statement" where the witness admits, "I saw nothing. I know nothing." Be sure to use the vernacular of the witness when preparing the statement rather than legalese so that the statement has the ring of truth.

A recorded statement may have more credibility because it is in the exact words of the witness but a recorded statement is rarely wholly one sided. The witness may wander, bring up irrelevancies or say things not beneficial to your client's case. These comments are all down in black and white too be used against you should the statement see the light of day.

If you do take a recorded statement, be sure to prepare for it. Talk to the witness some ahead of time to know what the witness will say and to make sure that the witness knows what questions you will be asking. Remember that Chapter 9.73 RCW must be followed or you are not only guilty of a crime but the statement is not admissible. If a recorded statement is taken over the telephone you have to obtain the witness' permission.

You should avoid taking a statement from a witness over the telephone. Only in person can you make some judgement about the character and credibility of the witness, make diagrams or demonstrate how an event occurred or develop the necessary personal rapport with the witness to engender trust and cooperation in the future.

It is essential that the witnesses be contacted quickly. Not only do memories fade, but usually the first investigator to contact the witness will be the one to develop the personal relationship. The first side to contact the witness will likely be able to establish that witness' testimony so it is characterized favorably. If you get there before your

opponent does you have a distinct advantage. In an automobile accident case of any magnitude, usually an insurance adjuster begins an investigation quite promptly. You are quite literally in a race to the witnesses.

Cooperative witnesses will readily sign a statement. Others may be leery of signing anything. Some have been told from childhood to be careful about signing anything given to them by lawyers. Asking witnesses to simply "put" their names at the end of a statement rather than "sign" the statement may be helpful. A witness who steadfastly refuses to sign a written statement may agree to write in "Yes" after the question: "Is everything set forth in this statement true and accurate?". The witness may also agree to make changes in the statement in handwriting if there are any errors. Even if a hostile witness will not agree to sign a statement, your investigator can read a memorandum made of the interview to the witness and ask for the witness' agreement that it is correct. This oral admission can be used during examination at deposition or trial. The investigator can testify to the confirmation of the accuracy of the statement even though it is not signed.

Witnesses should be interviewed separately. Each witness will generally have a different perspective and different observations. It is nearly physically impossible for them to have seen the same thing. If the second one has heard what the first one has said, the witness will feel it is redundant to tell the whole story anew. A second witness may "remember" things that were told by the first witness and not personal observations.

Occasionally it may be tactically wise to interview witnesses together. The less friendly or even hostile witness may be swayed to be more friendly by being interviewed together with a more friendly or cooperative witness.

Interviewing a witness, especially a police officer, at the scene of the accident can be very helpful. The witness can show and demonstrate how the accident took place. Even if the witness did not make measurements at the time of the accident, during your interview at the scene you can have a cooperative witness assist with measurements for testimony at trial. Consider photographing or videotaping this interview at the scene.

As with any other witness, it is important to speak with the police officer quickly. Police officer's memories fade too. They are involved in many different accident investigations. It is especially important to talk to a Washington State Patrol officer soon after an accident if you anticipate a case against the State of Washington for defective highway design, signing or maintenance. Since State Patrol officers are not managing agents you are not interviewing a potential defendant. Wright v. Group Health, 103 Wn.2d 192, 691 P.2d 564 (1984). Nonetheless, often the State of Washington will instruct State Patrol officers not to speak with an investigator or lawyer on behalf of the plaintiff once suit is filed. Then the only discussion that can be had with the State Patrol officer is either after court order or by deposition.

Should you give a copy of the witness' statement to the witness? Generally not, or the other side will get likely it, but if the witness asks for one, Civil Rule 26(b)(4) requires that you turn it over. Anything prepared by you or your investigator or other assistants after contacted by your client are prepared in anticipation of litigation, Civil Rule 26(b)(3), and protected from normal discovery. They often contain your mental impressions. Witness' memories fade and adjust over time. It is almost impossible for a witness to testify both at a deposition and again at trial entirely consistently with the written statement. For that reason the statement, if in the hands of an adversary, may well be used to impeach or suggest inaccuracy on the part of the witness.

Collect Documents And Records.

If you know where to look and who to ask, there is a vast array of documents and records made of many automobile accidents. Armed with an authorization from your client, or a simple freedom of information act or other request, you can obtain much of this information. Some sources include:

1. The Police Report. When asking for the police or other law enforcement agency report concerning an accident, remember it is not simply a single document. Many police officers, particularly state patrolmen, carry a field notebook in which they make notes concerning their observations. They may take brief witness statements or make diagrams. These notes are essential to obtain.

Often there is a follow-up investigation which is not part of the initial accident report. Sometimes the police will collect evidence at the scene or take photographs. Other investigators such as a police accident reconstruction expert or a vehicle inspector may make reports that are recorded separately.

You should ensure that you make your request both broad and specific enough to ensure that you have everything. It is usually helpful to use the particular form prepared by the agency to make your request.

2. Fire Department Records. The Fire Department may well come to any accidents where there is a risk of fire such as those where there is gasoline spilled on the highway.

3. Ambulance Records.

4. Tow Truck Records. Tow truck drivers or their employers may take photographs of the cars.

5. Court Documents. If there is a citation issued to the other driver, there will be court proceedings concerning the citation. The other driver's plea of guilty is admissible in evidence and maybe collateral estoppel.

If there is a citation given to your client, using the court proceedings may be the quickest easiest and cheapest way to get a comprehensive set of the police records.

Court documents from separate actions can be a fruitful source about a potential defendant. If the defendant has been divorced, you may find a wealth of information.

6. News Agencies. Major traffic accidents are often items of news interest. Newspaper photographers may not take the best photographs for documenting physical evidence at the scene, but they do take human interest photographs which may be dramatic for jury impact. They are good photographers. Newspapers may be reluctant to provide you with the photographs which were not published in the paper but usually will provide you with high quality reprints of the published photographs. Many newspapers maintain archives that can be easily searched on the internet to see if there is a report of your crash.

Television and radio stations are often reluctant to give up the audio or video tape of their reports on First Amendment grounds. They are particularly reluctant to disclose any video tape which was not broadcast. They almost never will provide it without a subpoena. Fortunately, there is a private company called Tempo IV, 12006 - 98th Ave NE, #103 , Kirkland , WA 98034 ; telephone: (425) 825-5544 which records all local and national news broadcast on television and radio. It will sell you a videotape of the television broadcast or an audiotape or transcript of the radio broadcast for a fee. They only keep their master tapes for a number of weeks; time is again of the essence.

7. State of Washington Department of Transportation. The State of Washington keeps a number of useful records for accident investigations many of which are essential for claims against the state for highway design or maintenance. They have maps, diagrams and drawings of the roadways themselves. They keep an accident history for state roads, maintenance logs and sign logs, a file concerning complaints and other activities for many stretches of roadway.

Of particular help for any accident is the photography lab of the Washington State Department of Transportation, Phone: 360 709-5550; Fax: 360 709-5599; e-mail: walkerj@wsdot.wa.gov . They have most, if not all, of the roadways in the state photographed from the air and will make them available to the public. I recommend that you go to Olympia and view the negatives that they have before ordering a particular negative because there is often many views taken at different times available.

The Department of Transportation also has road log films and videotapes.

8. City or County Engineering Department. The City or County engineering or traffic department is likely to have plans or drawings of different roadways and records of traffic control devices.

9. Weather Records. The National Weather Service (7600 Sandpoint Way N.E., Seattle, WA 98115-6349; telephone: (206) 526-6087; website: http://www.wrh.noaa.gov/Seattle/) is a good source of official records for weather. You may also be able to obtain weather information from the Washington State Department of Transportation, the State Patrol or the city or county highway department. Many times there will not be a record of the weather at the time and location that the accident occurred. A forensic meteorologist can be helpful to perform a “hindcast” from available records.

10. Freelance Photographers. If you find one who took photographs, they will be for sale.

11. Liquor Control Board. In cases against a bar, tavern or restaurant for excessive serving of alcohol to a drunk driver who crashes into your client (a "dram shop" case), the records of the Liquor Control board are essential. The state headquarters of the Liquor Control Board may not have all of the records. Go to the local office and talk to the enforcement officer to ferret out all of the personal notes, reports and complete records. The enforcement officer will probably be a cooperative and helpful witness.

12. Advertisement . If you have exhausted other sources and still do not have adequate information that you can turn into useable evidence, you may consider a newspaper or other advertisement for witnesses. To be effective, advertisements must be placed quickly after the accident so that the witnesses still recall the accident and respond. Local neighborhood newspapers, notices placed at bus stops and notices placed in neighborhood businesses can be effective.

ACCIDENT RECONSTRUCTION

Accident reconstruction is part of a complete accident investigation. Traffic Collision Investigation speaks of the five levels of accident investigation. The last two are professional reconstruction and cause analysis. A complete level five investigation including reconstruction and cause analysis requires an expert.

When Do You Need An Accident Reconstruction Expert?

Opinion testimony, if well supported, can be decisive in difficult or complex liability auto cases. The expert's opinion concerning how the accident happened becomes your theory of the case. The expert makes the same presentation through testimony , that you later make by argument to the jury. You will have the benefit of the expert's knowledge to know what to look for and the help of an expert witness to preserve that evidence. Personal observations shortly after the accident provide the foundation for opinions and make the expert's ultimate opinion much more credible.

Who Should You Use As An Accident Reconstruction Expert?

Accident reconstruction experts come from many backgrounds. The two most common types are engineers and former law enforcement officers. An accident reconstruction expert should not be confused with a traffic engineer. A traffic engineer provides expert testimony concerning the standard of care for highway design, construction and signing. An accident reconstruction expert provides analysis concerning the dynamics and cause of the accident itself. Some traffic engineers also are willing and able to offer testimony concerning reconstruction of the accident. It is important to examine their credentials carefully to be sure that they have sufficient qualifications in both areas.

The basic equations and other mathematical tools used in accident reconstruction are well accepted. You can study them yourself in the second volume of The Traffic-Accident Investigation Manual . Select an expert to fit the needs of your case. An accident reconstruction expert with a engineering background is helpful whenever the reconstruction involves detailed mathematical calculation or computer analysis, because of the added credibility given by the credentials. Whenever the investigating police officer is hostile to my client's position, or the accident was not investigated by the police, I consider retaining an accident reconstruction expert with a law enforcement background. The expert's testimony can help to diffuse the negative testimony of the hostile police officer or replace the absent police officer as a pivotal witness to set the scene at trial.

The Foundation Of The Expert's Opinion.

Any expert opinion is only as good as its foundation. The assumptions made in order to reach an opinion may be the weakest points of a strong opinion. Avoid having an accident reconstruction expert rely on witness statements, which can expose the opinion to attack. It is frequent that a witness statement may vary in some degree from testimony at trial because loyalties change, bias or prejudice comes into play, or different language is used. If the witness statement relied upon by the expert is different from the testimony at trial, the ultimate opinion is open to criticism. Having the expert interview the witnesses can expose the expert to detailed and effective cross-examination as to what a witness said rather than the effect it had on the opinion. Limiting the amount of information which an expert has to assume which is not based upon personal observation reduces the opportunities for cross-examination.

It may well be helpful to the expert in gathering data to interview witnesses at the scene of the accident, but it does not mean that the expert has to rely on the witness interviews to reach an opinion. Witness statements taken by a reconstruction expert may well be legally insufficient to provide a foundation for an opinion. The comments to Federal Rule of Evidence 703 state in part:

[T]he rule requires that the facts or data 'be of a type reasonably relied upon by experts in the particular field.' The language would not warrant admitting in evidence the opinion of an 'accidentologist' as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied. See Comment, Cal. Law Rev. Comm'n, Recommendation Proposing an Evidence Code 148-150 (1965).

Use of hypothetical assumptions often provides a tactically safer and legally sounder basis for the expert's opinion.

Here is one approach to limiting and controlling the assumptions relied on by your expert. Before the expert's deposition, prepare a notebook of information submitted to the expert as the information upon which to rely in reaching any opinions. It may not be the entire file, but would be the only information used to reach an opinion. The notebook contains a letter from counsel stating all assumed facts to be considered in reaching the conclusions. These assumed facts are carefully crafted to be provable at trial from other sources and limited in number to those facts necessary for the expert to reach an opinion. The letter also instructs the expert to rely upon his or her own investigation and calculations so that the expert can, to an extent, provide his own foundation. Other information in the notebook includes photographs and relevant documents. Do not include witness statements. Any information necessary from a witness statement is set forth in the letter as an assumed fact. Any witness statement relied upon by the expert it is discoverable.

This approach cannot be used in every case. When it can, the notebook provides a limited and self-contained set of facts, data and assumptions upon which the expert's opinion is based. It has been carefully prepared so that everything in it can be established at trial. The opinion based on it rests on a solid foundation.

THE TOP TEN – POTENTIAL LEGAL THEORIES

FOR COMPLEX LIABILITY AUTO CASES *

There are many potential choices of legal theories and target defendants in complex or difficult liability auto cases. After obtaining all the facts in a thorough investigation, a plaintiff's attorney must choose among theories which best track with all the known facts and bring in all entities that share any fault for the accidents. Failure to name potential “empty chair” defendants may cause the attribution of partial or complete fault to those who have not been sued. It is nearly certain that the defense will seek to blame entities not sued in most serious injury cases. Over the years, the following categories of potential defendants has been established by Washington court decisions:

1. Bars And Taverns.

An action may be possible where liquor is furnished to persons who are obviously intoxicated, helpless, or in a special relationship to the furnisher of the intoxicants. Young v. Caravan Corp. , 99 Wn.2d 655, 663 P.2d 834 (1983); Wilson v. Steinbach , 98 Wn.2d 434, 656 P.2d 1030 (1982) Christen v. Lee , 113 Wn.2d 479, 780 P.2d 1307 (1989); Purchase v. Meyer , 108 Wn.2d 220, 737 P.2d 661 (1987). However, a social host is not responsible for providing alcohol to an adult. Burkhart v. Harrod , 110 Wn.2d 381, 755 P.2d 759 (1988).

2. Retail Liquor Sales.

RCW 66.44.200 provides:

No person shall sell any liquor to any person apparently under the influence of liquor . (Emphasis added.)

The Washington State Supreme Court has recognized the statute as establishing “a strong public policy” against selling liquor to intoxicated persons. Purchase v. Meyer , 108 Wn.2d 220, 225, 737 P.2d 661 (1987).

WAC 314-16-150 provides:

No retail licensee shall give or otherwise supply liquor to any person under the age of 21 years, either for his own use or for the use of his parents or of any other person; or to any person apparently under the influence of liquor; or to any interdicted person (habitual drunkard); nor shall any licensee or employee thereof permit any person under the said age or in said condition or classification to consume liquor on his premises, or on any premises adjacent thereto and under his control, except where liquor is administered to such person by his physician or dentist for medical purposes. (Emphasis added.)

RCW 66.08.010 provides:

This entire title shall be deemed an exercise of the police power of the state for the protection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose.

The duty imposed by these alcohol statutes is owed to the general public. Purchase v. Meyer , 108 Wn.2d 220, 228, 737 P.2d 661 (1987); Dickinson v. Edwards , 105 Wn.2d 457, 716 P.2d 814 (1986).

3. Highway Design.

Responsible governmental entities have an obligation to exercise due care in constructing the roadway in a reasonably safe manner after considering the host of criteria applicable to the project. Stewart v. State , 92 Wn.2d 285, 597 P.2d 101 (1979); Boeing v. State , 89 Wn.2d 443, 572 P.2d 8 (1978).

But there are definite limits to this obligation, with only that duty of care necessary to maintain such roads for ordinary travel by persons using them in the proper manner. There is no duty to update every road to present day standards or to anticipate and protect against all imaginable acts of negligent drivers. Ruff v. County of King , 125 Wn.2d 697, 887 P.2d 886 (1995).

4. Traffic Control Devices.

A governmental entity must use traffic control devices, signs, signals and markers where necessary for safe driving. See Chapter 47.36 RCW; see also Grimsrud v. State , 63 Wash. App. 546, 821 P.2d 513 (1991) (holding that the adequacy of the construction warning signs could not be determined as a matter of law). All the signs and traffic control devices must be erected and maintained in accordance with the MUTCD (1978 Edition), as adopted by the Secretary of Transportation for the State of Washington on March 17, 1980 . RCW 47.36.030; Chapter 468-95 WAC.

5. Roadside.

Shoulders and adjacent roadside areas are as much a part of the roadway as the regularly traveled portion, and they are subject to the same duty of care by the governmental entity. Simmons v. Cowlitz County , 12 Wash. App. 84, 120 P.2d 479 (1941). See also Gibson v. Tacoma , 62 Wash. App. 26, 803 P.2d 1 (1990) (city had a statutory responsibility to maintain embankment adjacent to the road).

It is widely known that vehicles travel outside of their roadway lane, and counties must take this foreseeable event into account when designing or maintaining their roadways. Tanguma v. Yakima County , 18 Wash. App. 555, 560-561, 569 P.2d 1225 (1977). The “duty to eliminate a hazardous condition” applies whenever “the situation alongside the highway, even though outside of the traveled portion of the highway , is inherently dangerous”. Raybell v. State , 6 Wash. App. 795, 804, 496 P.2d 599 (1972) (emphasis added). 5. Maintenance.

It is the duty of the governmental entity to exercise ordinary care in the repair and maintenance of its public roadways, keeping them in a reasonably safe condition for ordinary travel by persons using them in a proper manner and exercising ordinary care for their safety. Boeing v. State , 89 Wn.2d 443, 572 P.2d 8 (1978). This duty will apply to a variety of patterns that may develop. See McCluskey v. Handorff-Sherman , 68 Wash. App. 96, 841 P.2d 1300 (1992) (slippery condition of roadway); Leiva v. King County , 38 Wn.2d 850, 233 P.2d 532 (1951) (potholes in the road); Provins v. Bevis , 70 Wn.2d 131, 422 P.2d 505 (1967) (stump at the end of the road); Boeing v. State , 89 Wn.2d 443, 572 P.2d 8 (1978) (the clearance of underpass that is too low). The duty to keep roads in a reasonably safe condition also potentially applies to accumulations of snow and ice. Niebarger v. Seattle , 53 Wn.2d 228, 299, 332 P.2d 463 (1958); Walters v. Seattle , 97 Wash. 657, 167 P. 124 (1917); Bull v. Spokane , 46 Wash. 237, 89 P. 555 (1907).

6. Auto Product Liability.

The liability of vehicle manufacturers is governed by RCW 7.72.030.

Although RCW 7.72.030(1) uses the term “negligence”, strict liability is still alive. See Ayers v. Johnson & Johnson , 117 Wn.2d 747, 818 P.2d 1337 (1991); Falk v. Keene Corp. , 113 Wn.2d 645, 782 P.2d 974 (1989).

A special type of design defect case can arise if a vehicle occupant suffers aggravated or enhanced injuries in a collision as a result of the design of that vehicle. Baumgardner v. American Motors , 83 Wn.2d 751, 522 P.2d 829 (1974).

Also, the manufacturer can be held liable for the lack of reasonable safety devices. See Brown v. Yamaha Motor Corp. , 38 Wash. App. 914, 691 P.2d 577 (1984).

7. Owner Liability.

Even when the owner of a motor vehicle is not the driver of the vehicle, the owner may be liable. One who furnishes an automobile for the use of the family is liable to a third person for injuries sustained as a result of the negligence of the family member in the operation of the automobile. Cameron v. Downs , 32 Wash. App. 875, 650 P.2d 260 (1982) (“family car doctrine”). Further, the owner of an automobile who entrusted it to a servant is liable for damages resulting from the servant's negligent use of the auto when the servant was acting within the scope of employment. Leuthold v. Goldman , 22 Wash. App. 583, 157 P.2d 326 (1945). Whether the servant was acting within the scope of employment must be determined by both the facts of a case and the reasonable inferences therefrom. Sanders v. Day , 2 Wash. App. 393, 468 P.2d 452 (1970).

An owner can also be held liable if he or she negligently maintains the vehicle. Nawrocki v. Cole , 41 Wn.2d 474, 249 P.2d 969 (1952). RCW 46.37 imposes upon a motor vehicle owner broad duties to equip the vehicle with proper equipment and to maintain the vehicle in a safe operating condition.

8. Negligent Entrustment.

A person can be liable to an injured party if he or she entrusts to another under circumstances in which the person knew, or in the exercise of ordinary care, should have known that the entrustee was an unfit driver. Restatement (2 nd ) of Torts § 390 (1965). Liability for negligent entrustment of a vehicle extends not only to the owner of the vehicle, but to any person who entrusts a vehicle when that person has control of the vehicle or was responsible for its use. Cameron v. Downs , 32 Wash. App. 875, 650 P.2d 260 (1982). Negligent entrustment has been found where a person knew or reasonably should have known that the entrustee was intoxicated ( Cameron v. Downs , supra ); was about to become intoxicated ( Mitchell v. Churches , 119 Wash. 547, 206 P. 6 (1922)); was a reckless, heedless or incompetent driver ( Jones v. Harris , 122 Wash. 69, 210 P. 22 (1922)); and was a minor under the age of 16 ( Atkins v. Churchill , 30 Wn.2d 859, 194 P.2d 364 (1948)).

9. Negligent Repair Of A Vehicle.

A person or entity that negligently repairs a motor vehicle can be held liable for damages. See Lundgren v. Whitney's, Inc. , 94 Wn.2d 91, 614 P.2d 1272 (1980).

10. Landowner Liability.

Generally, an abutting property owner must use and keep his premises in a condition so that adjacent public ways are not rendered unsafe for ordinary travel. Collais v. Buck & Bowers Oil Co. , 175 Wash. 263, 27 P.2d 118 (1933).