I’m publishing this last one just under the wire. On Thursday of this week the Washington Supreme Court will be visiting the UW School of Law to hear arguments on three cases. I’ve already previewed two of those cases: State v. Escalante and Lee v. Evergreen Hospital

This post discusses Gerlach v. The Cove Apartments, which could be about a few different things. It might be a tort case about the defense of voluntary intoxication. It might be an interesting landlord-tenant case about the rights of invitees. It might be a case about implied rights of action based on statutes. 

Or it might be a really fact-specific case that depends on the wording of a trial court’s evidentiary decision. You’ll just have to find out. As always, you can skip my summary analysis and just read the briefs yourself, all 450 pages of them!

The Supreme Court will be here Thursday. That’s tomorrow!

Facts and Trial Court Proceedings

The underlying facts of this case are relatively simple: Kim Gerlach lived with her fiance in a unit in The Cove Apartments, which were managed Weidner Property Management. One night, Gerlach, her fiance, and two friends headed back to the apartment after a night out drinking. Here is where the parties’ versions of events diverge. Everyone seems to agree that sometime after she arrived back at the apartment, Gerlach fell from the apartment’s balcony when a rotted railing from the balcony gave way. Gerlach sustained a severe head injury from the fall. She does not remember the event. 

Gerlach sued Weidner/Cove under two causes of action. First, she asserted a traditional common law negligence claim under the normal duty a landlord has to invitees on a property. Second, she asserted a claim under the warranty of habitability under Washington’s Residential Landlord-Tenant Act, RCW 59.18.010, et seq. 

At trial, Gerlach advanced the following theory of events: She returned to the apartment, went inside, made her way to the balcony, and leaned against the railing. The rotted railing then gave way and she fell. Gerlach argued that Weidner breached its duty of care to her by not properly maintaining the railing. She weighed approximately 125 pounds at the time. And she argued that a properly maintained, non-rotted railing should have easily supported her weight.

Weidner offered a competing theory: When Gerlach returned to the apartment, she could not enter because she did not have keys. Therefore, as she had done on prior occasions, she climbed toward the balcony in an attempt to enter the apartment via the balcony door. But as Gerlach reached the railing, while attempting to climb over, the rotted railing gave way and she fell to the ground. According to Weidner/Cove, Gerlach’s intoxication and reckless conduct caused the accident.

One of Weidner’s legal defenses at trial was that Gerlach’s voluntary intoxication, not the rotted railing, caused the accident. Washington law provides a complete defense to a personal injury claim based on the plaintiff’s voluntary intoxication. To succeed on the defense, a defendant must prove (1) the plaintiff was intoxicated, (2) the intoxication was a proximate cause of the injury, and (3) the plaintiff was more than 50% at fault. RCW 5.40.060. 

A side note here: Based purely on my reading of the appellate briefing, Weidner/Cove’s voluntary intoxication defense seems like it was the main issue at trial. But I doubt that’s correct. The trial lasted fifteen days spread over four weeks. I suspect that Weidner/Cove also argued that the railing wasn’t that bad, or that they didn’t know about the rot, or that they had no duty to fix the rot, or that it would have broken even without the rot, or whatever. I have no idea. It was a long trial. I didn’t review the entire record! So I’m sort of stuck looking for my keys where the street light happens to shine, here in the appellate briefing.

Anyway, in support of its defense, Weidner/Cove needed to prove both that Gerlach was intoxicated and that her intoxication was mostly to blame for the accident. To make this showing, Weidner/Cove intended to introduce evidence of a blood draw taken from Gerlach when she was admitted to the hospital, less than an hour after her accident. The draw showed that Gerlach’s blood alcohol level was .238, nearly three times the legal limit of .08. 

Normally, that evidence would almost certainly be admissible. But Gerlach short circuited Weidner/Cove’s strategy by admitting she was legally intoxicated at the time of the accident. She therefore conceded the first element of Weidner/Cove’s affirmative defense: intoxication. 

The trial court therefore ruled that the BAC results were inadmissible in light of Gerlach’s concession. The trial court’s exact reasoning on this point is not clear from the appellate briefing or from the Court of Appeals decision. And in fact, there appears to be a bit of conflict on this point. But more on that later.

In short, the trial court seems to have had two bases for its decision. First, under ER 403, the court concluded the evidence would be more prejudicial than probative. Sure, the test would be relevant to show intoxication. But that element had been conceded. And though the high BAC might be relevant to show the level fault, the trial court thought its probative value was outweighed by other factors.

One of those factors might have been the trial court’s second basis for its decision: the statutory requirements of Washington’s voluntary intoxication defense. The statute that provides the defense also provides a definition of intoxication; it incorporates the definition found in the state’s “driving while under the influence” statute, RCW 46.61.502. You might think that this incorporated definition would be helpful. You’d be wrong.

The definition has two potentially relevant parts. First, a person is intoxicated if they have a .08 BAC based on a test given in compliance with the state’s toxicology standards. RCW 46.61.502(1)(a). Second, if that definition doesn’t do the trick, the statute defines a person as intoxicated when “the person is under the influence of or affected by intoxicating liquor.” RCW 46.61.502(1)(c). Thanks. 

Here’s the problem for Weidner/Cove’s defense: The hospital blood test that resulted in a .238 wasn’t conducted in accordance with the state’s toxicology standard. It was a blood draw at the hospital to help with Gerlach’s emergency medical treatment. It wasn’t taken for evidentiary purposes. So it doesn’t fall under the first definition, which the parties call the “per se” rule.

The trial court apparently interpreted this statute to… well… I’m not sure what the trial court did. The parties are not exactly clear on that. 

So based on some combination of ER 403 discretion and the terms of the statute, the trial court refused to admit the BAC results, as well as expert testimony based on those BAC results. That’s the first issue on appeal.

The second issue on appeal, as far as I can tell, had almost no effect on the trial whatsoever. As I mentioned way back at the start, Gerlach brought two claims against Weidner/Cove: one based on the common law duty to invitees, and another based on the RLTA’s warranty of habitability. Weidner/Cove argued that the RLTA, as a statute setting out rights and duties between renters and landlords, did not apply to non-renters like invitees or girlfriends or fiancees who were not on the lease. 

The trial court disagreed and let both claims go to the jury. But here’s the messy part: The jury form didn’t ask the jury to determine liability separately for the two different claims. Weidner/Cove apparently didn’t object to the jury form. Here are the questions for the jury regarding the defendants’ liability:

The first two questions on the jury form.

I’m not sure why Weidner/Cove wouldn’t have insisted on separate liability verdicts under the two different theories, assuming that the two theories and underlying duties were actually different. 

Anyway, Weidner/Cove lost at trial. But it wasn’t a complete loss. Yes, the jury found that Weidner/Cove was negligent. The jury also found, however, that Gerlach was partially negligent, that her negligence was a proximate cause of the accident, and that 7% of the injury was attributable to her negligence. In other words, on Weidner/Cove’s defense of voluntary intoxication: Gerlach was intoxicated, and she proximately caused some of the accident, but her share fell well below the 50% necessary to constitute a complete defense. Weidner/Cove then appealed. 

The Court of Appeals Reverses and Remands for a New Trial

Here’s where things really get fun. Weidner/Cove listed 17 assignments of error in its appeal. I’m going to focus on the two issues the Supreme Court will be considering: the BAC-related evidence and the RLTA claim. The Court of Appeals reversed the trial court on both issues. It concluded that the BAC-related evidence (the test and the expert testimony) should have been admitted. And it concluded that the RLTA claim should have been dismissed.

I think both of these claims are quite interesting, but mostly for reasons that have nothing to do with the merits. Rather, I think the interaction between appellate review and trial procedure is doing a lot of work here behind the scenes. And I’m interested in how the Supreme Court is going to sort through all of it.

The Court of Appeals Decision on the BAC Evidence

The Court of Appeals reviewed the trial court’s BAC evidentiary decision for abuse of discretion. In other words, the Court of Appeals was not just looking at the evidence and deciding whether it thought the BAC results were more prejudicial than probative under ER 403. An appellate court’s disagreement is not sufficient to reverse a decision placed within the discretion of the trial court, like a decision regarding evidentiary admissibility. Rather, to be reversed the trial court’s decision must constitute an abuse of discretion—a decision that is “manifestly unreasonable or based on untenable grounds or untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). Of course, a trial court’s discretion is not unlimited. A trial court abuses its discretion if, for example, its decision is based on an incorrect understanding of the relevant legal rule.

With that standard of review in mind, take a look at the Court of Appeals’ discussion of the trial court’s decision on the admissibility of the BAC evidence:

[T]he trial court granted Gerlach’s motion because Gerlach offered to stipulate to the jury that she was intoxicated at the time of the accident. The court determined that if Gerlach admitted she was intoxicated, evidence of her blood alcohol level was not necessary to establish a defense under RCW 5.40.060(1). The trial court explained that, under Peralta v. State, 187 Wn.2d 888, 389 P.3d 596 (2017), an admission of intoxication was sufficient to establish intoxication under RCW 5.40.060(1) and the admission of Gerlach’s blood alcohol level would have been more prejudicial than probative under ER 403. Because the trial court misapplied Peralta and ER 403, its exclusion of the blood alcohol evidence was an abuse of discretion.

Gerlach v. Cove Apartments, LLC, 8 Wn. App. 2d 813, 446 P.3d 624, 629 (2019).

The rest of the Court of Appeals decision has a similar tone. And I think there are two ways to read it. On one reading, the Court of Appeals seems to be redoing the trial court’s work and vigorously disagreeing with it. On that read, the trial court abused its discretion just because it got the analysis so very wrong.

But on another reading, the Court of Appeals seems to be saying that the trial court made a legal mistake—that a mistaken understanding of the three elements of the intoxication defense and a mistaken understanding of the holding of Peralta caused the trial court to think that it was compelled to exclude the evidence, when in reality the trial court should have done more balancing based on the specific contours of the parties’ arguments. That would constitute an abuse of discretion based on the trial court’s understanding of the applicable law, not court’s judgment regarding how the law applies to this case’s facts.

This is an important point, so I’ll put it another way. Notice that I’m not discussing the holding in Peralta. That’s because I don’t think the holding of Peralta, on its own, matters here. What matters on appellate review for abuse of discretion is the trial court’s understanding of the holding of Peralta. If the trial court got the holding right, but just applied it to these specific facts in this specific trial in a way that the Court of Appeals might disagree with, that’s probably not an abuse of discretion. But if the trial court misunderstood the holding in Peralta, and that misunderstanding infected its decisionmaking, then that mistake would likely be an abuse of discretion.

The same goes for the trial court’s interpretation of the statute that creates the “per se” intoxication standard, RCW 46.61.502(1)(a). The Court of Appeals’ discussion of the trial court’s treatment of the statute makes it seem like the trial court simply misinterpreted the statute:

Because the blood alcohol evidence in this case could be evidence of intoxication under that non-per-se method, the test used need not comply with the requirements of RCW 46.61.506 to be admissible. This was not a proper basis for excluding the evidence.

Gerlach v. Cove Apartments, LLC, 8 Wn. App. 2d 813, 446 P.3d 624, 631 (2019)

That seems exactly right to me. After all, the statute is not a rule about evidentiary admissibility. It’s a rule about evidentiary sufficiency—i.e., what evidence is sufficient to establish that a person was intoxicated. If the trial court refused to admit the BAC results because they did not comply with the state toxicology procedures under the “per se” part of the statute, then that would have been a misunderstanding of the law. A trial court may (but also may not!) allow evidence of a BAC test that does not follow the strict toxicology procedures. The reliability and meaning of the test are then issues the parties can argue to the jury. 

So again in that case, if the trial court misinterpreted the statute, that’s an easy abuse of discretion. If, however, the trial court properly interpreted the statute, but then exercised its discretion in a way that the Court of Appeals found incorrect, that’s a tougher case.

I’m simplifying here. And I’m not putting in the amount of thought and record review that the Court of Appeals did. Or perhaps I’m over-thinking it! The Court of Appeals panel on this case comprised three distinguished former Superior Court Judges. If all three of them thought the trial court got it wrong, maybe that’s sufficient to establish an abuse of discretion!

But I think the Supreme Court is going to care about this stuff, drilling down on precisely how the trial court abused its discretion. So it’s worth thinking about before the argument.

The Court of Appeals Decision on the RLTA Claim

The Court of Appeals made quick work of the RLTA claim. Everyone seems to agree that the RLTA creates a duty “to keep the premises in habitable condition [and] provides tenants with a negligence cause of action against landlords who fail to do so.” Gerlach v. Cove Apartments, LLC, 8 Wn. App. 2d 813, 446 P.3d 624, 635 (2019) (emphasis added). But the Restatement (Second) of Property goes further, stating that the landlord has a duty to “the tenant and others upon the leased property with the consent of the tenant.Id. (quoting the Restatement). 

You might be asking yourself: Why does it matter that the Restatement, which is not a law passed by the legislature and signed by the government, might say something different from our state’s codified landlord-tenant act? Well, that’s a good question. But the Court of Appeals didn’t really reach the merits. It instead noted that the question had already been decided in a recent case, which held that the Restatement rule didn’t apply to guests. [Don’t you want to add a 6000-word digression about whether the Court of Appeals should have relied on this prior panel opinion? –ed. Don’t tempt me.]

The Court of Appeals’ rejection of Gerlach’s RLTA claim doesn’t mean she loses, however. Instead, the Court remanded the case for retrial on her negligence claim, which would survive based on a common law duty the landlord owed to her as an invitee. And I assume she would still be entitled to the instruction that the violation of a law is evidence of a violation of a duty. So I’m not sure how much different the retrial would look without the RLTA claim. Recall that the jury verdict didn’t even make the distinction.

Supreme Court Review and My Random Thoughts

At this point, you basically know all you need to know for the argument. But the briefing takes some interesting twists at the Supreme Court. So let’s discuss those!

First, Gerlach argues that the jury actually adopted Weidner/Coves theory of liability. It’s a clever argument. Basically, Gerlach makes this argument because if the Court agrees that the jury adopted Weidner/Cove’s theory of liability, then perhaps none of the purported errors would require reversal. They would all be harmless. The basis for Gerlach’s argument is that the jury found Gerlach 7% responsible for her own injuries. Given the wholly different factual arguments presented at trial—Gerlach arguing that she went upstairs and leaned on the railing, Weidner/Cove arguing that her intoxication inspired her to recklessly climb the balcony—only Weidner/Cove’s argument permitted any allocation of liability to Gerlach. So the jury must have sided with Weidner/Cove. I’ll admit, I’m skeptical that the Court would adopt this argument. Weidner/Cove is arguing that the BAC evidence isn’t just evidence to show causation and fault, but also the amount of fault. They want that 7% to get to 50%. And they think the BAC evidence might help them get there.

Second, Weidner/Cove seems ready to relitigate factual issues that (I would have thought) were already decided by the jury. For example, Weidner/Cove’s brief to the Supreme Court argues: “There is no evidence in the record that Cove actually knew of the rot in the cap or elsewhere on the apartment’s balcony.” Resp. Supp. Br. at 4. I’m not sure how that argument relates to the issues on appeal. Perhaps the RLTA claim makes certain factual arguments relevant. Or perhaps this is something the Court will push on during oral argument.

And then there’s this: “[T]he degree of “Gerlach’s inebriation was additionally relevant on proximate cause, i.e., Gerlach was so intoxicated that she fell off the balcony due to her own physical limitations, rather than any defect in Cove’s balcony.” Resp. Supp. Br. at 11. I’m not sure how that argument works in the Supreme Court. The jury already found Weidner/Cove liable. The railing actually broke and fell to the ground. There are pictures of a detached rotted railing in the record. I’m not sure what “physical limitations” of Gerlach’s could have caused the rotted railing to fall from the balcony. And I’m not sure how that question will be relevant in the Supreme Court.

Third, on the RLTA issue, both sides frame the argument as whether the RLTA includes an implied right of action for non-tenants. The text of the statute does not provide a right of action to non-tenants. To determine whether the RLTA creates an implied right of action for folks like Gerlach, the Court will likely apply the Bennett test: 

To determine whether the statute contained an implied cause of action, the court adopted a . . .  three-part test: “first, whether the plaintiff is within the class for whose ‘especial’ benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.”

Swank v. Valley Christian Sch., 188 Wn.2d 663, 675, 398 P.3d 1108, 1116 (2017) (quoting Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990)).

But this issue doesn’t get much briefing because, again, it doesn’t seem to make much difference in this case. On remand, Gerlach would likely still get an instruction that a violation of a statutory or regulatory duty can constitute negligence. Weidner/Cove essentially concedes that Gerlach would have a claim even without the RLTA: “Gerlach had ample grounds under common law premises liability principles against which to proceed against Cove.” Resp. to Pet. for Review at 24. And I’m still not sure what the Court will do with the fact that Weidner/Cove agreed to a jury form that did not distinguish between RLTA liability and common law liability. 

Fourth and finally, even at the Supreme Court, the BAC evidentiary issue seems dominated by the parties’ competing conceptions of the trial court’s decisionmaking process. For example, here’s how Gerlach describes the question on appeal: “The Court of Appeals . . . [held] as a matter of law that the result of an unverified hospital blood draw is always admissible in a civil case in which the defense alleges the plaintiff’s intoxication as a complete defense to liability.” Pet’r Supp. Br. at 11. 

Now, that’s certainly one reading of the Court of Appeals decision. But that reading relies on a specific understanding of the Court of Appeals’ view of the trial court’s decision—that the trial court basically got the law right, but didn’t have the discretion to exclude the BAC evidence in light of Weidner/Cove’s defense. If, however, the Court of Appeals thought that the trial court just got the law wrong, then an “unverified hospital blood draw” wouldn’t necessarily be admissible as a matter of law in all cases or even on remand. It could be inadmissible. But the trial court would just have to apply the right legal standard first.

One area that the parties don’t spend much time on, but that also matters in review for abuse of discretion, are the arguments the parties made to the trial court. Whether the trial court made an error depends, at least in part, on what the court was given to work with in the first place. For example, here’s how Gerlach describes Weidner/Cove’s argument to the trial court: “Weidner relied exclusively on RCW 46.61.502(1)(a) [the “per se” rule] to argue it had a ‘legal right’ to conclusively establish Gerlach’s intoxication through her Harborview blood test.” Gerlach Ct. of Appeals Br. at 30 n.4. 

A trial court’s error should be evaluated in light of the arguments and facts presented to it. If Weidner/Cove incorrectly argued to the trial court that the statute required admission of the BAC results, that argument would have been wrong (and likely a bit muddled). If the trial court then rejected that argument with a muddled understanding of the statute as well, should that really constitute an abuse of discretion? Again, in my view, a lot of this depends on the specific process in the trial court.

And with that, I’ll end on these two points: On the RLTA issue, I hope oral argument elucidates the stakes. I get how the implied-right question is interesting as a legal and intellectual inquiry. But what does it matter? The parties’ briefing treats it as something of an afterthought. The consequences are never really made clear. And Weidner/Cove, the party who fought the RLTA claim in the trial court, didn’t even bother to separate out the two claims on the jury form. If it didn’t matter then, why does it matter now?

On the BAC evidentiary issue, I think so much of this depends on the trial court’s reasoning. Perhaps that’s why these questions are generally left to a trial judge’s discretion. The judge in this case was best positioned to understand the parties’ arguments about intoxication. And the arguments in this case seem very different from the run-of-the-mill intoxication defense. This isn’t a case where everyone agrees the plaintiff tripped on a stairwell and the jury just needs to decide whether she tripped because she was drunk or because the stairwell was negligently maintained. 

Instead, the parties’ disagreed on what Gerlach actually did: Did she climb the balcony from below or did she lean on it from above? As far as I can tell, Gerlach’s intoxication was not relevant to determine how carefully she climbed the balcony or how carefully she leaned on the railing from above. A railing should hold a drunk person leaning on it just as well as a sober person. 

Weidner/Cove’s argument below seemed to be one step removed from that. The defendant wasn’t arguing that Gerlach didn’t climb the balcony carefully enough. For goodness’ sake, the railing ripped off! Rather, Weidner/Cove seemed to argue that being drunk would have caused Gerlach to make reckless decisions. And an increased likelihood of making reckless decisions in turn makes it more likely that the defendant’s version of events—she climbed to the balcony—is what actually happened, as opposed to the plaintiff’s less reckless version of events—that she walked inside and then went out to the balcony. (Now is when you pause to see if you can remember Bayes’s rule and to reflect on conditional probabilities.)

The relevance of Gerlach’s intoxication is already somewhat tenuous on that theory. Again, it’s an abnormal intoxication defense, more about probabilistically guessing what Gerlach did, not evaluating the care with which she did it. Given that strange context, and the fact that the trial court was already looking at a four-week trial, perhaps it was reasonable to avoid the side-show of arguments about what .238 meant or how reliable that test was. Maybe the trial court was concerned the number would unfairly prejudice the jury against Gerlach and distract them from the more direct evidence pertaining to what actually happened: the accident reconstruction experts, the description of the apartment, Gerlach’s lack of keys, her prior habit of climbing, the statements of contemporaneous witnesses, etc. 

Or maybe the trial judge just got the law wrong and Weidner/Cove should get a new trial.