January, 2010
It's official: don't count on using evidence that defendant lacked a proper motorcycle endorsement
by Andrew Bergh

By a 9-0 tally, the Washington Supreme Court recently affirmed Kappelman v. Lutz, 141 Wn. App. 580 (2007). The upshot of this unanimous decision? If your client has an injury claim against a motorcyclist who lacked the proper motorcycle endorsement and/or violated the terms of his instructional permit, don’t expect to get these facts into evidence.

Amber Kappelman is the unlucky plaintiff who learned this lesson the hard way.

Kappelman went for a motorcycle ride one evening with her then boyfriend, Theodore Lutz, who had no motorcycle endorsement on his license. On top of that, although he did have an instructional permit, Lutz wasn’t supposed to carry passengers or operate his motorcycle during the hours of darkness. (See RCW 46.20.510(2).)

While exceeding the 55 mile per hour speed limit, Lutz saw a deer approaching from his left. After realizing almost instantaneously that the deer was going to enter the roadway, he swerved to the right and started decelerating by both braking lightly and downshifting. Unfortunately, when the deer continued into his lane and was only 50 feet away, Lutz realized an impact was inevitable, so he slammed on his brakes and skidded into the animal. All told, only three to four seconds elapsed between the time Lutz first saw the deer and the moment of impact.

Kappelman, who suffered unspecified injuries in the collision, later sued Lutz for damages in Klickitat County Superior Court.

Prior to trial, the defendant moved on lack-of-relevancy grounds to exclude evidence that he wasn’t properly licensed and had violated the restrictions on his instructional permit. Even if such evidence was relevant, said Lutz, its probative value was outweighed by its prejudicial effect. Siding with the defense, the trial court reasoned that the “real issue” related to whether Lutz was negligent – not to whether he was “fully qualified” as a motorcycle operator under Washington law.

At the subsequent trial, Lutz testified regarding his prior experience with motorcycles and other off-road vehicles. He also told the jury that he initially didn’t apply his brakes very hard so as to avoid losing control of his motorcycle. After the trial court, as requested by Lutz, instructed the jury on the so-called “sudden emergency” doctrine, a defense judgment followed.

The primary issue on appeal was whether the trial court had abused its discretion by excluding evidence that Lutz, at the time of the accident, lacked a proper motorcycle endorsement and had violated the conditions of his instructional permit.

Time for a brief digression.

A similar issue arose in Holz v. Burlington Northern Railroad, 58 Wn. App. 704 (1990). There, a 16-year-old boy died after driving his motorcycle at night into a black railroad car that was straddling an unlit country road. In the subsequent wrongful death action, the railroad company sought to prove contributory negligence by showing the decedent had violated the law by not having either a valid motorcycle endorsement or learner’s permit. This evidence was relevant, said the defendant, because the statutory violation was a “cause-in-fact” of the accident. Rejecting this argument, the Court of Appeals (Division One) said the “crucial question” was whether a rider with a motorcycle endorsement would have suffered the same fate. Since there was no evidence a properly licensed operator would’ve been less likely to collide with the railroad car, Division One concluded that whether the decedent lacked an endorsement was irrelevant because Burlington Northern had not established the requisite causal connection.

Returning to Kappelman v. Lutz, the trial court had cited Holz for the “general rule” that whether the rider had a valid endorsement is “really irrelevant to how he [had] operated the motorcycle.” By a 2-1 margin, the Court of Appeals (Division Three) affirmed, likewise relying on Holz. (As a quick aside, the dissenting judge was Debra Stephens, who now sits on the Washington Supreme Court and didn’t participate in its disposition of the case, given her earlier involvement.)

Making it three for three, our high court in Kappelman v. Lutz similarly found Holz “informative.” Its observations included the following:

Curiously, while concurring with the result, the justices in Kappelman nowhere expressly approved the reasoning of either the trial court or the Court of Appeals. Moreover, the high court declined to adopt a hard-and-fast rule that evidence of license status is never relevant to negligence. To the contrary:

We caution that evidence of unlicensed status may be relevant in other cases. Under our modern rules of evidence, the threshold to admit relevant evidence is low and even minimally relevant evidence is admissible. [Citation.] Another trial court may have decided that evidence of Lutz’s license violations was relevant. But even relevant evidence must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Here, the trial court recognized that the kind of evidence carries a very high potential of unfair prejudice. And the probative value of such evidence was relatively low because the jury heard other evidence relating to Lutz’s skill and experience operating motorcycles. The trial court’s decision to exclude the evidence was based on these legitimate considerations, and therefore we cannot say it was based on untenable grounds.

167 Wn.2d at 9.

Hmm. Instead of stronger adjectives like “dispositive,” “controlling” or “persuasive,” the justices only refer to Holz as “informative.” Instead of a black-and-white rule against admissibility, they say evidence of unlicensed status “may” be relevant in other cases, and that “another court” could’ve decided that evidence of Lutz’s license violations was relevant. And instead of praising the trial court for its ruling, they only say its decision wasn’t based on untenable grounds. All things considered, it sure seems that rather than being slammed shut, the door is still ajar for evidence regarding a defendant’s unlicensed status, especially when the defendant presents scant or no evidence regarding his skill and prior experience. (Of course, the defense bar’s take on Kappelman will likely be a tad different.)

The secondary issue in Kappelman was whether the trial court abused its discretion by giving the jury an emergency instruction. Under the sudden emergency rule, “[a] defendant who is suddenly confronted by an emergency through no fault of his own and chooses a damaging course of action in order to avoid the emergency is not liable for negligence although the particular act might constitute negligence had no emergency been present.” 167 Wn.2d at 10. While the doctrine only applies in “limited circumstances,” the justices nonetheless ruled in Lutz’s favor:

On the facts of this case, the trial court did not err in giving the emergency instruction. Deer are quick, erratic, and unpredictable; they may run to the road and then across, or suddenly freeze. The appearance of a deer on the road can happen suddenly – as it did here – and is rare enough that a driver might not reasonably anticipate its occurrence. The trial court’s decision to give the emergency instruction here was not an abuse of discretion.

Id.

Kappelman v. Lutz really doesn’t break any new ground vis-à-vis the emergency doctrine. For more details, please see WPI 12.02. Combined with the ruling that kept out evidence of Lutz’s unlicensed status, however, the emergency instruction posed a real double whammy for Amber Kappelman.

Andrew Bergh, WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases, including professional liability and insurance bad faith.