Suppose you’re interviewing a prospective new client who tells you she was seriously hurt in an accident while riding as a passenger on a friend’s motorcycle. She also tells you her friend only had an instruction permit and couldn’t legally carry passengers (or drive at night). She wonders if she has a good case and astutely asks whether the fact her friend violated the conditions of his permit can be used to establish his fault.

So what do you do? If you want my recommendation, you politely excuse yourself for a moment and go read Kappelman v. Lutz, 141 Wn. App. 580 (2007). As that case shows, reasonable minds can certainly differ on whether the absence of a proper motorcycle endorsement should properly be considered by a jury.

Let’s provide more details.

One evening Theodore Lutz took his then girlfriend, Amber Kappelman, for a ride on his motorcycle. (Sorry, no information regarding their respective ages.) Since Lutz only had an instruction permit, he couldn’t yet carry passengers or operate his motorcycle during the hours of darkness. See RCW 46.20.510(2).

After confronting a deer in the roadway, Lutz applied his brakes but was unable to avoid the animal by stopping or steering around it. Both driver and passenger were ejected upon impact from the motorcycle, which, per the subsequent police investigation, slid down the roadway approximately 330 feet. Even Kappelman wound up some 200 feet from the point of impact.

Kappelman later sued Lutz for damages in Klickitat County Superior Court.

Prior to trial, the defendant moved to exclude evidence that he wasn’t properly licensed on lack-of-relevancy grounds. He also argued that its prejudicial value outweighed its probative value. Siding with Lutz, the trial court barred any evidence that Lutz lacked the proper motorcycle endorsement, or that he had violated the terms of his instruction permit by riding in the nighttime with a passenger. The real issue, the trial court reasoned, related to whether Lutz was negligent – not whether he was “fully qualified” as a motorcycle operator under Washington law.

One of the issues at trial was whether Lutz had driven his motorcycle at an excessive speed.

Kappelman testified that during the ride, Lutz kept accelerating to the point she became “nervous,” and that she felt like she was “being sucked off” due to the speed. She also said the deer (which Lutz saw first) was between 250 and 300 feet away when she first noticed it in the roadway.

The accident reconstruction expert hired by Kappelman testified that Lutz was traveling between 70 and 77 miles per hour before he applied his brakes, and that even at the lower end of the range, the probable speed at impact was 63 miles per hour. (According to the police investigation, the skid marks were only 42 feet long.) Even Lutz reportedly told the investigating officer that he may have been going 60 miles per hour (i.e., five miles over the posted speed limit) when he struck and killed the deer.

In addition to excessive speed, Kappelman presented evidence that Lutz was an inexperienced motorcyclist; that he probably made errors in judgment in maneuvering his motorcycle while trying to avoid the deer; that he reacted poorly to the hazard posed by the deer; and that he lost control of the motorcycle after hitting the brakes.

Lutz, of course, didn’t just throw in the towel. Claiming he was confronted by a sudden emergency that placed him in peril, the defendant requested – and the jury was eventually given over Kappelman’s objection – an instruction based on the emergency doctrine. See WPI 12.02.

I’ve never tried a case in Klickitat County, so I don’t know firsthand how conservative juries are in that neck of the woods. I do know, though, that despite the apparent strength of Kappelman’s case, this particular jury found for Lutz.

In the ensuing appeal, the primary issue pertained to the exclusion of the evidence that Lutz lacked the proper motorcycle endorsement. In a split decision, the Court of Appeals (Division Three) ultimately affirmed.

At the outset, the majority noted that a trial court’s decision to exclude evidence is reviewed for abuse of discretion. This rests on whether the trial court had tenable grounds or reasons to exclude the evidence.

As already mentioned, the trial court granted the defense motion to exclude because it felt the “real issue” related to Lutz’s negligence, not to whether he was fully qualified to operate a motorcycle. This reasoning, said the majority, was not only tenable – it was “easily supported by compelling case law.”

Like the trial court, the majority hung its hat on Holz v. Burlington N. R.R., 58 Wn. App. 704 (1990). In that case, a 16-year-old boy died after driving his motorcycle into a black railroad car that was straddling an unlit country road. Affirming the trial court’s refusal to admit evidence that the plaintiff wasn’t properly licensed, the Holz court (Division One) said the “critical question” was whether “a person with a motorcycle endorsement, enabling that person to ride unsupervised and at night, [would] have been any better off, i.e., any less likely to have suffered the same fate[.]”

Against this background, the majority in Kappelman approved the trial court’s reasoning:

[T]he question here, like the question in Holz, is whether the accident would have been avoided if Mr. Lutz were properly licensed? The trial judge concluded that it would not have been avoided and that is supported by the record.

141 Wn. App. at 586.

The majority then observed:

At the end of the day, Mr. Lutz is the motorcycle driver he is, with his experience, training, and background. And he reacted the way he did whether or not he was properly licensed. The fact that he was not licensed is not relevant to how and why he drove his motorcycle in the way he did on the evening of this accident; only his driving conduct is relevant.

Id.

In short, with one exception, the Kappelman majority said Holz wasn’t distinguishable. The lone distinction? That the rule applied in Holz cut against the defendant, not against the plaintiff as in Kappelman’s case. But that, said the majority, was “not a reason to apply the rule differently.”

Viewed alone, the majority’s opinion in Kappelman reads well and makes sense. But the dissenting opinion – authored by now Supreme Court Justice Debra Stephens – makes some persuasive counterpoints.

First of all, the dissent argued that a motorcycle endorsement isn’t just a “piece of paper.” To the contrary, consistent with the general purpose of chapter 46.20 RCW to prevent reckless or negligent drivers from operating vehicles on public highways, the motorcycle endorsement program, said the dissent, is “designed to assure that motorcycle operators have the skills necessary for safe on-street operation.” 141 Wn. App. at 592.

The dissent also discussed RCW 5.40.050, which says a breach of duty imposed by statute may be considered by the trier of fact as evidence of negligence. Like most states, Washington follows the four-part test set forth in the Restatement (Second) of Torts § 286 to determine if a statute imposes such a duty. Despite “much argument and briefing on this issue,” said the dissent, the trial court failed to address either RCW 5.40.050 or the Restatement test in ruling on Lutz’s motion in limine. By refusing to allow evidence of Lutz’s statutory violation without applying the proper legal standard, said the dissent, the trial court’s discretionary decision was untenable.

Finally, the dissent strongly disagreed that Holz even controlled. There, although the railroad company (for the obvious reason) wanted the jury to know the decedent lacked the proper motorcycle endorsement, it presented no evidence and didn’t even argue the decedent was less experienced or knowledgeable than one who held such an endorsement. Moreover, instead of speed being a significant factor, “the problem was a lack of visibility, not any lack of skill, capability, or care that a fully licensed rider would have possessed or exercised but [the decedent] did not.” 141 Wn. App. at 596 (quoting from Holz, 58 Wn. App. at 712). The dissent thus said:

In contrast to Holz, Mr. Lutz’s skill, capability, and care as a motorcycle operator were squarely at issue in this case. Contrary to the reasoning of the majority, the test under Holz is not whether a party ‘could have still been negligent with the endorsement,’ (majority at 587) but whether the lack of an endorsement provided evidence of negligence making the accident more or less likely. [Citation omitted.] The situation here is more analogous to White v. Peters, 52 Wn.2d 824, 329 P.2d 471 (1958), which the court in Holz recognized reflects the general rule that this is an issue of proximate cause to be decided by the jury….The majority erroneously reads Holz as providing a general rule of exclusion, as did the trial court. The result is that the jury in this case was deprived of probative evidence asked to render a verdict without the benefit of having all the facts.

Id.

Let’s return to that prospective new client.

So how do you answer her question about whether she has a good case because her friend lacked a proper motorcycle endorsement? If it were me, I think I’d reply with a definite “maybe.” Because as Lutz v. Kappelman shows, there are arguments both ways depending on various considerations, including the factual circumstances of the accident, the causation issues, and possibly even where you file.