author: Leach, J.

text:
    STATE of Washington, Respondent, v. TIEN THUY HO, Appellant.
    No. 76519-1-I
    Court of Appeals of Washington, Division 1.
    FILED: March 25, 2019
    Edward C. Chung, Ruth Vizcaino, Attorney at Law, Chung, Malhas & Mantel, PLLC, 1511 3rd Ave. Ste. 1088, Seattle, WA, 98101-3635, for Appellant.
    Seth Aaron Fine, Attorney at Law, Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave., Everett, WA, 98201-4061, for Respondent/Cross-Appellant.
    PUBLISHED OPINION
   Leach, J.

¶1 Tien Thuy Ho appeals her conviction for second degree assault of a child. She claims that the trial court improperly admitted evidence found during a search of her home, statements she made to an investigating officer, and statements made by the victim. She also challenges the sufficiency of the charging information. Because no illegal search occurred, Ho was not in custody when she spoke with officers, the victim's statements were admissible as prior inconsistent statement, and the information sufficiently described the elements of the charged crime, we affirm.

FACTS

¶2 In January 2016, Child Protective Services (CPS) received an anonymous complaint that a 10-year-old boy had severe bruising on his buttocks and the backs of his legs. The trial court's unchallenged findings, made after a hearing on Ho's request to suppress evidence, describe the investigation of this complaint:

A. On or about January 15, 2016, between approximately 1:41 p.m. and 4:45 p.m. the following events took place;
B. Deputy Koster was working uniformed patrol for Snohomish County driving a patrol car equipped with emergency lights and siren. At approximately 1:41 p.m. he was dispatched to a CPS (Child Protective Services) complaint located at 11831 Freeway Place, Everett, WA. According to the text of the call, Dianna Lucas, a Social Worker with DSHS [Department of Social and Health Services] called 9-1-1 requesting the assistance of SCSO (Snohomish County Sheriff's Office) to check the welfare (health and safety check) of a juvenile child at the listed address.
C. Upon arrival, Ms. Dianna Lucas explained to the deputy that a referral came into CPS the prior day regarding severe bruising on the buttocks of a ten year-old child (victim, N.Y.) who lived at the listed address.
D. According to the referral, the witness described the bruising and explained that it appeared to have been caused by a paddle with holes in it.
E. CPS/DSHS Social Worker Dianna Lucas and Deputy Koster made contact at the residence and spoke with Shun-Kai Yang, the alleged victim's biological father. Ms. Lucas and Deputy Koster introduced themselves and explained the reason for the contact (health and safety check of N.Y.). Shun-Kai Yang allowed them to enter the residence while they interviewed him. Mr. Yang explained that his wife, (defendant) Tien Ho and (victim) N.Y. were at the Mall [Tien Ho is N.Y.'s step-mother]. Ms. Lucas requested that Mr. Yang have Tien Ho and N.Y. return to the residence for an interview. Mr. Yang called Tien Ho, who agreed to return home.
F. While Ms. Lucas and Deputy Koster were waiting for Tien Ho and N.Y. to return, Shun-Kai Yang explained that Tien Ho is the primary caregiver for their son. He explained that he works first shift at Boeing, so most of the parenting responsibilities are handled by Tien Ho. When questioned about how N.Y. gets disciplined, Mr. Yang told Deputy Koster that they talk with him, and occasionally spank him if needed. He denied knowing anything about bruising on his son, N.Y.
G. A short time later, defendant Tien Ho and N.Y. arrived at the location. Dianna Lucas and Deputy Koster introduced themselves and explained the reason for the contact. Ms. Lucas requested to interview the victim in his bedroom. Shun-Kai Yang and Tien Ho did not object to the interview. The deputy stood by while Ms. Lucas interviewed N.Y. in his bedroom.
H. Deputy Koster reported that N.Y. seemed hesitant and reserved during the conversation. Ms. Lucas started with some introductory questions involving school, hobbies, etc. When Ms. Lucas asked N.Y. about how he is disciplined, the victim claimed that his mom (the defendant) "accidentally gets mad, she accidentally slaps my hand." N.Y. said she slapped him with an open hand, and that it happened about two days prior. N.Y. also stated that he falls down a lot and was not being careful.
I. When Ms. Lucas asked if he had any bruising, N.Y. indicated that he had bruising on his bottom because [he] fell from a tree. When asked what tree he fell from, N.Y. said that he did not know. Ms. Lucas asked N.Y. if she left the room would he show the bruises to the deputy. The victim then said that he did not want to talk anymore. Deputy Koster reported that N.Y. essentially shut down at that point, and looked at his feet when he told Ms. Lucas he did not want to talk anymore.
J. Dianna Lucas and the deputy re-contacted Shun-Kai Yang and Tien Ho in the living room. Ms. Lucas then requested that Mr. Yang and the defendant take N.Y. to the hospital for an evaluation. Tien Ho reportedly made several excuses why she could not take N.Y. to the hospital.
K. Deputy Koster explained to the defendant that based on the accusations it was necessary for N.Y. to be evaluated. He explained to Ms. Ho that spanking a child (within reason) is legal in Washington. Tien Ho explained that N.Y. reportedly has ADHD [attention deficit hyperactivity disorder ] and that he has difficulty obeying instruction[s]. The defendant subsequently admitted to the deputy that N.Y. did have bruising on his buttocks.
L. The defendant admitted to the deputy that she had spanked N.Y. two times with her hand because she was overwhelmed by N.Y.'s behavior. Again, Tien Ho was asked by the CPS Social Worker and the deputy to take N.Y. to the hospital, but she continued to argue.
M. Tien Ho eventually admitted that she used a "stick" to spank N. Y. Deputy Koster asked the defendant if it was a stick in the yard or one in the house. Ms. Ho told Koster that the "stick" was in the house. Koster asked Tien to show him the "Stick."
N. The defendant escorted Deputy Koster to the downstairs portion of the house to the rear sliding glass door. Tien Ho removed a wood dowel approximately three feet long and approximately slightly more than 1 inch in diameter.
O. Deputy Koster then took custody of the dowel/"stick." He confirmed with the defendant "You used this to spank [N.Y.]?" to which Tien Ho replied "Yes." The defendant and the deputy then returned to the upstairs living room and Koster showed Ms. Lucas the "stick" that the defendant admitted using to spank N.Y. Tien Ho then volunteered "I promise, this will never happen again." The defendant subsequently explained that in her culture that it is ok to spank your child.
P. Deputy Koster explained to the defendant the seriousness of using the dowel to spank the victim.
Q. The deputy consequently contacted SCSO Sgt. Heitzman with the Special Investigation Unit and briefed him on the incident. It was confirmed with the sergeant that N.Y. should be taken to the hospital for an evaluation, and that Tien Ho should be arrested.
R. Deputy Koster then told Tien Ho that she was under arrest. He advised Ms. Ho of her Constitutional Rights. Koster asked Tien Ho if she understood her rights to which she replied "Yes." The deputy then asked the defendant if she was willing to speak with him to which she replied "Yes." Tien Ho subsequently asked the deputy "Can I have a pen and piece of paper to write a letter to the Judge to tell him that this will never happen again?" Deputy Koster told the defendant that he would allow her to write a statement once they got to the Snohomish County Jail.
S. Upon arrival at the Jail, prior to entry into booking, Tien Ho told Deputy Koster "I think I want to talk to a lawyer." He did not ask Tien Ho any further questions about the incident.

(Some alterations in original.)

¶3 The State charged Ho with second degree assault based on two theories, assault with a deadly weapon and an alternative "torture" theory. During the jury trial, the State called N.Y. as a witness. He testified that he "wasn't hit with a stick." He said he did not receive any injuries from his stepmother and did not remember bruising on his body. After N.Y.'s testimony, the State used parts of his pretrial forensic interview to impeach his credibility. The court instructed the jury to consider these statements only to evaluate N.Y.'s credibility and not to consider them for the truth of the matter asserted. The jury did not take the interview transcript with it into the jury room.

¶4 After the State rested, the prosecutor recognized that the information did not allege all of the elements necessary for its "torture" theory and withdrew its pertinent proposed instruction. The court dismissed this alternative theory and instructed the jury only on second degree assault with a deadly weapon.

¶5 The jury returned a verdict of guilty of second degree assault. Ho appeals.

STANDARD OF REVIEW

¶6 When we review a trial court's decision to deny a motion to suppress, we look to the record to determine whether substantial evidence supports the court's findings of fact and then determine whether the findings support its conclusions of law. Here, because Ho does not challenge any finding, we accept them as true. We review de novo whether the findings support the conclusions of law.

¶7 We review evidentiary rulings by the trial court to admit or exclude evidence for an abuse of discretion.

ANALYSIS

¶8 Ho makes multiple challenges to the evidence admitted at trial. She also challenges the sufficiency of the information. Specifically, she claims that Deputy Koster illegally seized her at her home, making all evidence obtained after this seizure inadmissible. She also claims that Deputy Koster subjected her to custodial questioning without required Miranda warnings and conducted a warrantless search of her home without her consent. And she claims the trial court abused its discretion by admitting parts of the forensic interview of N.Y. because it was hearsay and conducted in violation of RCW 26.44.030 and RCW 26.44.100. Finally, she claims the trial court should have dismissed the case because the State improperly amended its charge.

¶9 In her reply brief, Ho first discusses the admissibility of the photographic evidence of N.Y.'s injuries. She does not raise this issue in her opening brief and only appears to be responding to the State's discussion of the issue. "[A] contention presented for the first time in the reply brief will not receive consideration on appeal." We decline to review this issue.

¶10 Ho also filed a statement of additional grounds raising the same issues asserted in her counsel's opening brief.

¶11 Because none of Ho's claims warrant appellate relief, we affirm.

Suppression of Evidence

¶12 The trial court's unchallenged findings support its conclusions that no seizure occurred, that Ho was not subject to custodial interrogation when she confessed, and that the search of her home was consensual. So the trial court did not err when it denied her motions to suppress.

A. Search and Seizure

¶13 Ho contends that Deputy Koster unlawfully seized her and conducted custodial questioning without first giving her constitutionally required warnings. We disagree.

¶14 Both the Fourth Amendment to the United States Constitution and article 1, section 7 of the Washington Constitution prohibit unreasonable search and/or seizure. An appellant making an unconstitutional seizure claim has the burden of proving that a seizure occurred.

¶15 Because article I, section 7" 'grants greater protection to individual privacy rights than the Fourth Amendment,' " we analyze Ho's claim under it. A seizure occurs under article I, section 7 when an officer restrains an individual's freedom of movement and, given the officer's display of authority or use of physical force, she would not reasonably believe that she is free to leave or decline a request. The test is objective. So, if the officer uses no physical force, the defendant must establish that, given all the circumstances, a reasonable person would have experienced an unreasonable restraint on her freedom. Whether an interaction is a seizure does not depend on "the officer's suspicions" but instead on "the interaction between the person and the officer."

¶16 An officer commanding a person, issuing orders, or demanding a particular action all establish a situation where a reasonable person would likely not feel free to end the encounter. By contrast, if an officer merely questions a person, he has not seized that person. Further, an officer does not seize a person by entering a home if a person with authority to consent to the entry does so, regardless of whether the officer advised the person of his right to refuse consent.

¶17 Here, Yang consented to Koster's entry. Throughout their time in the house, Lucas and Koster told Ho what they were doing. They asked permission to interview N.Y. in his bedroom and stopped the interview when N.Y. said he did not want to speak anymore. They did not investigate the house, apart from the time spent in the entryway and living room talking to Yang and Ho, in N.Y.'s bedroom, and in the basement, after being led down there by Ho. Ho handed Koster the dowel. Koster and Lucas repeatedly asked Ho to take N.Y. to the hospital. Only after all of these events and after talking to Heitzman did Koster decide to arrest Ho. These facts provide sufficient evidence to support a conclusion that a reasonable person would feel she could terminate the interview or leave to a different room.

¶18 Ho compares this case to Rogers v. Richmond. Yet the court in Richmond did not focus on a Fourth Amendment claim of unreasonable search and seizure but rather on a Fourteenth Amendment due process claim. Further, Richmond is factually distinguishable. In Richmond, the accused was incarcerated and, after refusing to confess, was told that his wife would be taken into custody. Here, Ho was in her house and free to ask the officer to leave or to move to a different room.

¶19 We conclude that Ho failed to demonstrate that Koster seized her. The trial court did not err when it denied her motion to suppress this evidence.

B. Custodial Interrogation

¶20 Ho asserts that the State violated her right against self-incrimination because Koster did not give her a Miranda warning until he said he was going to arrest her and thus the trial court erred by not suppressing her confessions.

¶21 The Fifth Amendment to the United States Constitution protects against compelled self-incrimination. For a confession made while in custody to comply with the Fifth Amendment, the State must show that it informed the suspect of her right to remain silent and she knowingly and intelligently waived it. This requirement is triggered when that person is in custody and being interrogated by a state agent. A person is in custody if "a reasonable person in the individual's position would believe ... she was in police custody to a degree associated with formal arrest." This is an objective test. Whether or not an officer intended to take the person into custody or was focusing on the person as a potential suspect does not affect the analysis.

¶22 This court looks at the totality of the circumstances to decide whether a suspect was in custody. To show that she was in custody at the time she confessed, the defendant must show by objective facts that the presence of the officer restricted her freedom of movement If the confession was made in her home and the defendant shows that officers had "turned the otherwise comfortable and familiar surroundings of the home into a 'police dominated atmosphere,' " she demonstrates custody. United States v. Craighead identifies the factors a court considers when reviewing the circumstances to determine if a police atmosphere occurred as

(1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made.

¶23 The Craighead court found a police-dominated atmosphere because eight officers, a subset with their weapons drawn, entered the house. And the suspect in that case was isolated in a storage room, he could not leave because an armed guard stood between him and the exit, and he knew the officers would not leave the premises until they completed the search for which they had a warrant.

¶24 Here, Yang gave permission for Koster and Lucas to enter. Only one enforcement officer was present, albeit armed, when Ho made her confessions. She was not isolated from her husband, Yang. These circumstances are very different from those in Craighead and support the conclusion that this was not a custodial interrogation. Only the fact that Ho was not told she could leave or terminate the interview supports the assertion that she was in custody. This fact alone is insufficient to outweigh the substantial evidence indicating Ho was not in custody when she made her confessions.

¶25 We conclude that Ho did not establish that she was in custody. The trial court did not err by denying her motion to suppress.

Additional Claims

A. RCW 26.44

¶26 Ho asserts a violation of RCW 26.44.030 and RCW 26.44.100. She claims that this violation required suppression of evidence.

¶27 RCW 26.44 establishes guidelines for reporting child abuse. RCW 26.44.030(1)(a) lists professions mandated to report suspected child abuse. It also requires an investigation or a family assessment be made in response to a report of alleged abuse. During the investigation, "the preferred practice is to request a parent's ...

permission to interview the child." The investigator must determine whether the child wishes a third party to be present. RCW 26.44.100(2) guides investigators primarily as to how to provide notification of a child abuse allegation and what to include in their report once they complete the investigation.

¶28 RCW 26.44.030 does not state, or even suggest, that suppression is the appropriate remedy for a violation. The legislature adopted RCW 26.44 to protect children from child abuse. We cannot assume that the legislature would intend a court to suppress evidence that might establish abuse was occurring because of a guideline violation. Ho cites no authority for her contrary position. We assume that counsel searched and found none. We reject this claim.

¶29 Ho also fails to establish that RCW 26.44.100 was violated because this statute contains no requirement that the parents be advised about their due process rights when a child abuse allegation is investigated. We reject Ho's argument.

B. Forensic Testimony

¶30 Ho claims that the trial court abused its discretion by admitting part of the videotaped forensic interview with N.Y. because it was inadmissible hearsay. She also contends the admission violated her rights under the confrontation clause of the Sixth Amendment.

¶31 Prior inconsistent statements may be admitted to impeach a witness's credibility. If a court admits a statement for impeachment purposes, it does not admit the evidence as proof of the matter asserted. So the evidence is not subject to the requirements of the confrontation clause. ¶32 Here, a segment of the forensic interview was admitted to impeach N.Y. after he testified that he had not been hit with a stick. The trial court included an instruction to the jury limiting their consideration of this evidence. The jurors did not have a transcript of the interview in the jury room. Ho claims that it was improperly admitted under hearsay exceptions for a recorded recollection or a prior inconsistent statement. But she does not contest its status as impeachment evidence, making it admissible as a prior inconsistent statement.

¶33 Here, the State did not offer parts of the forensic interview to establish the truth of the matters asserted. Since the State offered them for impeachment, their admission did not violate Ho's confrontation clause rights. The trial court did not abuse its discretion by admitting them.

C. Charging Document

¶34 Ho contends that the court improperly allowed the State to amend the charging document after it rested its case. She claims that when the State rested its case, the information charged her with assault of a child in the third degree and that the State asked to amend it to second degree assault. The record does not support Ho's claim. Instead, it shows that the State, after resting its case, asked to withdraw one of its two theories of second degree assault of a child. The court dismissed the "torture" based charge and instructed the jury only on the remaining charge of second degree assault with a deadly weapon.

¶35 We reject this claim.

D. Fourteenth Amendment Claims

¶36 Ho periodically and briefly contends that her Fourteenth Amendment due process rights have been violated. Ho provides no argument to support her claim and no authority for her assertions. Without authority, " 'the court may assume that counsel, after diligent search, has found none.' " We decline to review this claim.

Statement of Additional Grounds

¶37 Ho filed a statement of additional grounds for review. In it she asserts that the admitted evidence stemmed from an investigation that violated her Fourth Amendment rights, as well as the rights of Yang and N.Y. She also asserts a violation of her Fifth Amendment right against self-incrimination and her Fourteenth Amendment right of due process. These claims overlap with those made in her opening brief. As discussed above, we find no merit in Ho's assertions.

A. Fourth Amendment

¶38 Ho claims that she, N.Y., and her husband Yang were subject to an unreasonable search and seizure and any evidence flowing from it should be suppressed. As previously discussed, this claim fails.

¶39 Also, she does not have standing to assert a violation of N.Y.'s or Yang's Fourth Amendment rights against unreasonable search and seizure.

B. Fifth Amendment

¶40 Ho asserts that her Fifth Amendment right against self-incrimination was violated because when she made her confessions she was in custody. She also asserts this claim in her brief. For the reasons discussed above, she fails to prove this assertion.

C. Fourteenth Amendment

¶41 Ho claims that her Fourteenth Amendment right to due process was violated. As we stated above, we find no merit in this claim.

CONCLUSION

¶42 We affirm. Ho does not show violations of her Fourth and Fifth Amendment rights warranting suppression of evidence. She fails to show that the State's alleged violation of RCW 26.44.100 and RCW 26.44.030 entitled her to relief. And she fails to establish the trial court abused its discretion by admitting impeachment evidence. The record does not support her contention that the State improperly amended its charge. She does not provide argument or authority to support her claim of a Fourteenth Amendment due process violation.

WE CONCUR:

Chun, J.

Schindler, J.

      The day before withdrawing the instruction, the State attempted to amend but discovered it could not amend once it had rested.

      State v. Weyand, 188 Wash.2d 804, 811, 399 P.3d 530 (2017).

      State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003).

      Weyand, 188 Wash.2d at 811, 399 P.3d 530 ; State v. Weller, 185 Wash. App. 913, 922, 344 P.3d 695, (2015).

      State v. Gunderson, 181 Wash.2d 916, 922, 337 P.3d 1090 (2014).

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Fosbre v. State, 70 Wash.2d 578, 583, 424 P.2d 901 (1967).

      State v. Young, 135 Wash.2d 498, 509-10, 957 P.2d 681 (1998).

      State v. Flores, 186 Wash.2d 506, 512, 379 P.3d 104 (2016) (quoting State v. Harrington, 167 Wash.2d 656, 663, 222 P.3d 92 (2009) ).

      State v. Beito, 147 Wash. App. 504, 508, 195 P.3d 1023 (2008).

      Young, 135 Wash.2d at 511, 957 P.2d 681.

      O'Neill, 148 Wash.2d at 574, 62 P.3d 489 ; Young, 135 Wash.2d at 510-11, 957 P.2d 681.

      O'Neill, 148 Wash.2d at 575, 62 P.3d 489.

      O'Neill, 148 Wash.2d at 577, 62 P.3d 489.

      O'Neill, 148 Wash.2d at 574, 62 P.3d 489.

      State v. Khounvichai, 149 Wash.2d 557, 563, 69 P.3d 862 (2003).

      365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961).

      Richmond, 365 U.S. at 543-44, 81 S.Ct. 735.

      Richmond, 365 U.S. at 535-36, 81 S.Ct. 735.

      Miranda, 384 U.S. at 457-58, 86 S.Ct. 1602.

      Miranda, 384 U.S. at 471, 478-79, 86 S.Ct. 1602.

      State v. Lorenz, 152 Wash.2d 22, 36, 93 P.3d 133 (2004).

      Lorenz, 152 Wash.2d at 36-37, 93 P.3d 133.

      Lorenz, 152 Wash.2d at 36-37, 93 P.3d 133.

      Lorenz, 152 Wash.2d at 37, 93 P.3d 133.

      United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008).

      State v. Post, 118 Wash.2d 596, 607, 826 P.2d 172, 837 P.2d 599 (1992).

      Craighead, 539 F.3d at 1083-84.

      539 F.3d 1073, 1084 (9th Cir. 2008).

      Craighead, 539 F.3d at 1085.

      Craighead, 539 F.3d at 1086, 1088-89.

      RCW 26.44.030(11)(a).

      RCW 26.44.030(14)(a)(i).

      RCW 26.44.030(14)(a)(i).

      Mercer Place Condo. Ass'n v. State Farm Fire & Cas. Co., 104 Wash. App. 597, 606, 17 P.3d 626 (2000) (quoting Grant County v. Bohne, 89 Wash.2d 953, 958, 577 P.2d 138 (1978) ).

      State v. Allen S., 98 Wash. App. 452, 466, 989 P.2d 1222 (1999).

      Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      Mercer Place Condo. Ass'n, 104 Wash. App. at 606, 17 P.3d 626 (quoting Bohne, 89 Wash.2d at 958, 577 P.2d 138 ).


source: Caselaw Access Project

author: Andrus, J.

license: Public Domain

text:
    Kevin B. HENDRICKSON and Jane Doe Hendrickson, husband and wife and the marital community composed thereof; and John and Jane Does Nos. 1-10, Appellants, v. Erik J. MURPHY, Respondent.
    No. 77526-0-I
    Court of Appeals of Washington, Division 1.
    FILED: March 25, 2019
    B. Jacob Bozeman, Law Office of B. Jacob Bozeman, 4211 Alderwood Mall Blvd. Ste. 100, Lynnwood, WA, 98036-3750, for Appellants.
    Per E. Oscarsson, Beresford Booth PLLC, 145 3rd Ave. S Ste. 200, Edmonds, WA, 98020-3593, for Respondent.
    PUBLISHED OPINION
   Andrus, J.

¶1 Kevin Hendrickson appeals the trial court's order terminating an easement that crossed, but dead-ended within the boundaries of, property owned by Erik Murphy. Because the easement serves no beneficial use to Hendrickson, we affirm.

FACTS

¶2 Erik Murphy owns property at 11431 North Dogwood Lane, Woodway, Washington (hereinafter the Murphy Property). Kevin Hendrickson and his wife own nearby property at 11411 North Dogwood Lane (hereinafter the Hendrickson Property). Both properties originated from the Priscilla Collins Short Plat, established in 1978 and comprised of four lots: Lot 1, Lot 2, Lot 3, and Lot 4. According to the Collins Short Plat, the Murphy Property is Lot 2, and the Hendrickson Property is Lot 4. The properties are not adjacent to each other.

¶3 The Collins Short Plat included an ingress, egress, and utilities easement running in a northwesterly direction from its southern terminus near North Dogwood Lane, a public street, and ending at what was then the western boundary of the Murphy Property. The Hendrickson Property's 1993 statutory warranty deed subjects its title to the easement "for the benefit of Lots 2 and 3." But it also grants to the Hendrickson Property an "ingress, egress and utilities" easement as described in the "Town of Woodway Short Plat." The Collins Short Plat describes the easement as "serving Lots 1,2,3 and 4."

¶4 A diagram of the lots is below. Lot 1 is outlined in blue; Lot 2 (the Murphy Property) is outlined in orange; Lot 3 is outlined in green, and Lot 4 (the Hendrickson Property) is outlined in yellow. See https://perma.cc/WBD4-EE6k. The easement appears in purple.

The western portion of the easement crossed through the Murphy Property, as is diagramed below.

¶5 In 1994, the owner of Lot 2 proposed relocating its property line 60 feet to the west. The "Proposed Property Line" as depicted in the diagram above became the official adjusted property line on July 27, 1994, per the approval of the Woodway Planning Commission. The easement language was not modified in any way at the time, and the diagram depicts the easement where it now dead-ends within the Murphy Property.

¶6 The Murphy Property is landlocked by Lots 1, 3, and 4. The easement serves as the only way by which the owner of Lot 2 (the Murphy Property) can access a public road. Lot 4 (the Hendrickson Property) has frontage directly onto North Dogwood Lane and is also serviced by the southern portion of the easement. The portion of the easement located on the Murphy Property does not provide ingress to, or egress from, the Hendrickson Property, to any public road.

¶7 Dennis Delahunt, the successor trustee of the Robert M. Ryan Living Trust, the then owner of the Murphy Property, commenced this action in May 2017, seeking to quiet title to the portion of the easement that crossed the Murphy Property. The trial court granted the motion and quieted title in favor of Delahunt and the Trust.

ANALYSIS

¶8 The sole issue on appeal is whether the trial court erred in quieting title to the western portion of the easement to the Murphy Property. We conclude no error occurred because the easement (1) dead-ends within the boundary of the Murphy Property and (2) serves no beneficial use to the Hendrickson Property.

Standard of Review

¶9 This court reviews de novo a motion for summary judgment, engaging in the same inquiry as the trial court. Highline Sch. Dist. No. 401, v. Port of Seattle, 87 Wash.2d 6, 15, 548 P.2d 1085 (1976). "[S]ummary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Herskovits v. Grp. Health Co-op. of Puget Sound, 99 Wash.2d 609, 613, 664 P.2d 474 (1983). The reviewing court must draw all reasonable inferences in favor of the nonmoving party. Id.

The Easement's Western Terminus

¶10 Hendrickson first contends there is a material issue of fact as to whether the easement dead-ends within the Murphy Property or terminates at the Murphy Property's western boundary with Lot 1. As originally platted in 1978, the easement terminated at the western boundary of Lot 2 (the Murphy Property), where it met the eastern boundary of Lot 1. The easement provided in relevant part:

An easement for ingress, egress and utilities over, across and under a strip of land 30.00 feet in width having 15.00 feet on each side of the following described center-line: Commencing at a stone monument at the center of Section 26, Township 27 North, Range 3 East, H.M.; thence S 89°31'18" E along the east and west center-line of said section 699.595 feet {S 89°38'30" E 700.00 feet in previous descriptions} to a monument; ... thence S 84°03'04" N 138.25 feet, more or less, to an Intersection with the east line of Lot 1 in the Priscilla Collins Short plat, said intersection being the terminus of the center-line of said easement for ingress, egress and utilities; the side-lines of said easement shall be lengthened or shortened in order to intersect the east line of said Lot 1 and the north line of said Lot 5A.

The survey attached to the easement shows the easement terminus at the boundary of Lot 1 and the Murphy Property (then known as Lot 2).

¶11 Hendrickson argues that when the boundary of the Murphy Property shifted west, the western terminus of the easement similarly extended to maintain an intersection with the eastern boundary of Lot 1. The rules of contract interpretation apply to interpretation of an easement. Pelly v. Panasyuk, 2 Wash. App. 2d 848, 864, 413 P.3d 619 (2018). The interpretation of an easement is a mixed question of law and fact. Id. What the original parties intended is a question of fact and the legal consequences of that intent is a question of law. Id. The intent of the original parties to an easement is determined from the deed as a whole. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wash.2d 873, 880, 73 P.3d 369 (2003). If the plain language is unambiguous, extrinsic evidence will not be considered. Id. An easement can be expanded over time only if the express terms of an easement manifest a clear intention by the original parties to modify the initial scope of the easement based on future demands. Id. at 884, 73 P.3d 369. But the face of the easement must manifest this clear intent. The "four corners" rule ensures subsequent purchasers have clear actual or constructive notice of the encumbrance based on future demands. Id. ¶12 Hendrickson's argument is inconsistent with the clear language of the easement itself and the legal requirement to follow metes and bounds descriptions in the instrument creating the easement.

¶13 Here, the four corners of the easement identified the exact location of the metes and bounds of the easement's lines and terminus. From this description, a surveyor located the area covered by the easement without recourse to any other document. The survey documents show the easement now terminates within the Murphy Property. We are bound by this legal description. See Maier v. Giske, 154 Wash. App. 6, 16, 223 P.3d 1265 (2010) (when easement location is described by metes and bounds description, the precise land covered by easement can be ascertained without resort to extrinsic evidence); Kave v. McIntosh Ridge Primary Road Ass'n, 198 Wash. App. 812, 820, 394 P.3d 446 (2017) (trial court lacked authority to quiet title to easement in any location other than metes and bounds description in instrument creating easement).

¶14 There is nothing in the easement to indicate the original parties intended to lengthen the easement in the event the boundary of Lot 1 changed from where it was originally located. The phrase "the sidelines of said easement shall be lengthened or shortened" to intersect with Lot 1's eastern boundary does not evidence such an intent. The metes and bounds of the easement are based on a described "center-line." The language regarding the "sidelines" merely ensured the sidelines corresponded to the center line, which is defined with specific compass coordinates. Although the boundary line adjustment led to the loss of ingress or egress onto Lot 1, Hendrickson does not own Lot 1 and has no legal right to ingress into or egress from that parcel.

¶15 Because the easement does not contemplate any change in length, we conclude as a matter of law the easement's terminus remained at the old property boundary, which placed it inside the Murphy Property after the 1994 boundary line adjustment. There are no issues of material fact as to the location of the easement's western terminus.

Beneficial Use of the Easement to the Hendrickson Property

¶16 Hendrickson next claims that the easement onto the Murphy Property has future beneficial value to the Hendrickson Property because his currently undeveloped property might be able to use the easement for ingress or egress or for accessing utilities. He argues the trial court erred in concluding the easement has no beneficial use.

¶17 Hendrickson's argument, however, is foreclosed by our Supreme Court's holding in Coast Storage Co. v. Schwartz, 55 Wash.2d 848, 351 P.2d 520 (1960). As the Supreme Court held, "[a]n easement is a use interest, and to exist as an appurtenance to land, must serve some beneficial use." Id. at 853, 351 P.2d 520. An easement terminates as a matter of law when it serves no beneficial use to the dominant estate. Id. In Coast Storage, by virtue of several property transfers, the easement became a dead-end roadway in the middle of the plaintiff's property. Id. The Court held that because the easement no longer lead to any public roadway and dead-ended on the plaintiffs' property, the defendants no longer had any beneficial use from the easement. Id. The Supreme Court affirmed the order quieting title of the easement to Coast Storage.

¶18 This case is analogous to Coast Storage. Like the easement in that case, the part of the easement running across the Murphy Property now dead-ends on that parcel. The dead-end easement leads to no public roadway, and thus, provides no ingress to or egress from the Hendrickson Property. Furthermore, there is no evidence that the easement onto the Murphy Property could ever be used by Hendrickson to access any utilities. To make it useful for utility installation, Hendrickson would either have to cross Lot 1 to reach a public roadway or gain access to Lot 1's utility easement on the western side of that lot. Hendrickson has no right to cross Lot 1, as the easement now ends on the Murphy Property. Under Coast Storage, there is no current or future beneficial use to be gained from the portion of the easement ending within the Murphy Property.

¶19 The trial court did not err in granting summary judgment and extinguishing the easement where it crossed the Murphy Property.

¶20 Affirmed.

WE CONCUR:

Chun, J.

Leach, J.

      Although "Jane Doe" Hendrickson is a named party in this appeal, we will refer to Kevin and "Jane Doe" Hendrickson collectively as Hendrickson.

      This diagram, as submitted to the record, does not show the easement as it crosses over the Murphy Property. The multicolored lines have been added for clarity. Please note this is for illustrative purposes only.

      In the diagram, Lot 1 is referred to as Parcel A, and Lot 2 (the Murphy Property) is referred to as Parcel B. The dotted line shows the easement location as it crossed the Murphy Property.

      The easement, as originally created, also benefitted the property north and east of the Hendrickson Property, known as Lot 3, but that owner released his interest in the portion of the easement crossing the Murphy Property because it serves no beneficial purpose to Lot 3. Thus, Hendrickson is the only person who claims a right of ingress and egress across the Murphy Property.

      Murphy purchased the property from the Trust in mid-2018 and became the Respondent in the present action. This court granted Respondent's motion to substitute Murphy for Delahunt on July 27, 2018.

      "Metes and bounds" are "[t]he territorial limits of real property as measured by distances and angles from designated landmarks and in relation to adjoining properties." Black's Law Dictionary 1012 (8th ed. 2004).

      Our conclusion is further supported by the fact that Lot 1 no longer needs the easement for access after a public road, identified as either Chinook Road or 117th Place in the two surveys in the record, was built along Lot 1's western border.


author: Lee, J.

text:
    In the MATTER OF the DETENTION OF: Ausagetalitama Shell FAGA, Appellant.
    No. 50077-9-II
    Court of Appeals of Washington, Division 2.
    Filed March 26, 2019
    Jodi R. Backlund, Backlund & Mistry, Po Box 6490, Olympia, WA, 98507-6490, for Petitioner.
    Mary Elizabeth Robnett, Pierce County Prosecutor, 930 Tacoma Ave. S., Rm. 946, Tacoma, WA, 98402-2102, for Respondent.
    PUBLISHED OPINION
   Lee, J.

¶ 1 Ausagetalitama S. Faga appeals the superior court's order denying his motion to purge his contempt. Because Faga has not proven his inability to comply with the superior court's original order to participate in evaluations with the State's experts, the superior court did not err in denying Faga's motion to lift the contempt sanctions and set a trial date. We affirm the superior court's order denying Faga's motion to purge his contempt; however, we remand for the superior court to consider the underlying issues Faga raises.

FACTS

¶ 2 In 2012, the State filed a petition seeking Faga's civil commitment as a sexually violent predator (SVP) under chapter 71.09 RCW. The State filed a motion to compel Faga to participate in evaluations as required by RCW 71.09.050. In 2013, the superior court ordered Faga to participate in evaluations with the State's experts.

¶ 3 On January 31, 2014, the State filed a motion for contempt based on Faga's refusal to participate in evaluations required by the State's expert, Dr. Harry Hoberman. The superior court found that Faga intentionally disobeyed its earlier order to participate in evaluations. Based on Faga's intentional disobedience, the court found Faga in contempt of court. The court ordered that Faga could purge his contempt by "fully complying" with the court's order requiring Faga to participate in evaluations with the State's experts and by "meeting with Dr. Hoberman, cooperating with the evaluation, submitting to a clinical interview and such psychological and physiological testing as deemed appropriate by Dr. Hoberman." Clerk's Papers (CP) at 172. As a sanction for the contempt, the court stayed Faga's civil commitment trial until he purged the contempt.

¶ 4 On August 18, 2016, Faga filed a motion to lift the contempt sanctions and set a trial date. Faga stated that he had attempted to participate in the evaluations but, because he would not sign the informed consent waivers, the experts refused to conduct the evaluations. Faga argued that the waivers required him to waive other important rights and, therefore, he should not have to sign them. Faga also argued that "he cannot actually purge his remaining conditions of contempt because the State is withholding that opportunity until he signs their extrajudicial waivers." CP at 190. Faga asserted that he would participate in the evaluations as long as he did not have to sign any waivers. The only relief Faga requested was lifting the contempt sanctions and setting a trial date.

¶ 5 The superior court concluded that Faga "has not met his burden of producing persuasive, credible evidence that he does not have the ability, through no fault of his own, to comply with the court's earlier order." CP at 299. The court denied Faga's motion to lift the contempt sanctions.

¶ 6 Faga filed a motion for discretionary review with this court. We granted Faga's motion for discretionary review.

ANALYSIS

¶ 7 Faga argues that the superior court erred by denying his motion to lift the contempt sanctions. We disagree.

A. LEGAL PRINCIPLES

¶ 8 We review the superior court's conclusion regarding whether Faga can comply with the condition set by the court to purge the contempt sanction for an abuse of discretion. Moreman v. Butcher , 126 Wash.2d 36, 40, 891 P.2d 725 (1995) ; see also King v. Dep't of Soc. & Health Svcs. , 110 Wash.2d 793, 802-03, 756 P.2d 1303 (1988) ("At what point incarceration for civil contempt no longer serves a coercive purpose is a matter left to the sound discretion of the trial judge to be decided on a case-by-case basis."). "An abuse of discretion is present only if there is a clear showing that the exercise of discretion was manifestly unreasonable, based on untenable grounds, or based on untenable reasons." Moreman , 126 Wash.2d at 40, 891 P.2d 725.

¶ 9 A civil contempt sanction is valid only if it is remedial as opposed to punitive. See In re the Interest of Silva , 166 Wash.2d 133, 141-42, 206 P.3d 1240 (2009). A remedial sanction is one imposed to coerce performance. RCW 7.21.010(3) ; Silva , 166 Wash.2d at 141, 206 P.3d 1240.

¶ 10 One requirement of a remedial sanction is that the sanction is within the contemnor's power to perform. RCW 7.21.030(2). Civil contempt sanctions lose their coercive effect when the contemnor no longer has the ability to comply with the court's order. King , 110 Wash.2d at 804, 756 P.2d 1303. Once it becomes clear that the contemnor no longer has the ability to comply, the court must lift the contempt sanctions. Id .

¶ 11 Similarly, a contempt order must contain a purge condition allowing the contemnor to purge the sanction through an affirmative act. Silva , 166 Wash.2d at 141-42, 206 P.3d 1240. The contemnor must have the ability to satisfy the purge condition. In re Structured Settlement Payment Rights of Rapid Settlements, Ltd. , 189 Wash.App. 584, 613, 359 P.3d 823 (2015), review denied , 185 Wash.2d 1020, 369 P.3d 500 (2016).

¶ 12 "[T]he law presumes that one is capable of performing those actions required by the court." King , 110 Wash.2d at 804, 756 P.2d 1303. The inability to comply with the court's order is an affirmative defense. Id . The contemnor bears the burden of proving his or her inability to comply with credible evidence. Id ."These principles extend also to situations where the failure to comply with an order may be constitutionally protected." Id. at 804-05, 756 P.2d 1303. The merits of a constitutional claim must be determined initially by the trial court. Id. at 805, 756 P.2d 1303.

B. ABILITY TO COMPLY WITH PURGE CONDITIONS

¶ 13 Faga makes three arguments to support his contention that the superior court erred by denying his motion to lift the contempt sanctions and set a trial date: (1) he is unable to comply with the purge condition because compliance is conditioned on the actions of third parties, (2) the court improperly modified the purge conditions by requiring Faga to sign the waivers, and (3) the court cannot create a purge condition that violates Faga's rights. But Faga's arguments do not support his requested remedy. Here, because Faga has failed to demonstrate that he is unable to comply with the court's purge condition, the superior court did not abuse its discretion by denying Faga's motion to lift the contempt sanction.

1. Compliance Conditioned on Third Party Action

¶ 14 Faga argues that the superior court improperly based Faga's ability to purge his contempt on the actions of third parties. Faga relies on In re the Interest of M.B. , 101 Wash.App. 425, 3 P.3d 780 (2000), to support his argument.

¶ 15 In M.B. , the trial court required the juvenile contemnor to enroll and be accepted into a treatment program in order to purge her contempt. Id . at 459, 3 P.3d 780. Division One noted that "[t]he contemnor must carry the keys of the prison door in her own pocket." Id. at 460, 3 P.3d 780. The court noted that, while the contemnor could control whether to enroll in a program, she could not control whether she was accepted. Id . When a contemnor cannot control whether to purge the contempt because purging the contempt is dependent on the actions of third parties, outside of the contemnor's control, the purge condition is inappropriate. Id .

¶ 16 But Faga's purge condition is distinguishable from the condition in M.B. Here, Faga's ability to purge the contempt remains entirely in Faga's control. All Faga has to do is to sign the required forms and the State's experts will perform the evaluations. The fact that Faga does not want to sign the forms does not mean that he no longer has the ability to purge his contempt. Accordingly, Faga has failed to demonstrate that the purge condition is improperly dependent on the actions of third parties.

2. Improper Modification of Purge Condition

¶ 17 Faga also argues that the superior court improperly modified Faga's purge condition by adding the requirement that he sign waivers. Again relying on M.B. , Faga asserts "[a] purge condition 'is not subject to ongoing modification and increasing onerousness.' " Br. of Appellant at 12 (quoting M.B. , 101 Wash.App. at 462, 3 P.3d 780 ).

¶ 18 In M.B. , another juvenile was found in contempt and was required to write a 15-page paper explaining why he had failed to follow the court's order and how he would comply in the future in order to purge his contempt. 101 Wash.App. at 461, 3 P.3d 780. The trial court rejected the juvenile contemnor's first paper because the paper did not specifically address how the juvenile contemnor's actions affected his mother and caused her to lose her housing. Id . In declaring the new purge condition unlawful, the M.B. court explained,

[I]n rejecting [the juvenile contemnor's] first paper as inadequate, the court imposed content requirements not originally described. The purge condition is not subject to ongoing modification and increasing onerousness. The court has discretion to determine whether the contemnor has satisfied the purge condition, but the court must state its expectations with sufficient clarity to communicate what is required. Here, the court's imposition of additional requirements not originally included as part of the condition was punitive in effect and purpose and, therefore, unlawful.

Id. at 462, 3 P.3d 780.

¶ 19 And even if the superior court had improperly modified the purge condition, the modification is unlawful-not the original condition. Id . Here, that would mean requiring Faga to sign the waivers would have been unlawful, and the appropriate remedy would be for the superior court to intervene and enter an order requiring the evaluations to take place without the waivers, which Faga notes had occurred in other cases.

¶ 20 Moreover, this is not a situation like in M.B. where the contemnor performed the task requested by the trial court and the trial court rejected the effort because it did not meet undisclosed expectations. Here, Faga refused to sign the waiver forms required by the evaluators in order to allow the evaluations to take place. The waivers were not a modification or an additional requirement imposed by the court. Thus, Faga's argument that the superior court erred by not lifting his contempt sanctions because it improperly modified his purge condition by adding requirements fails.

3. Violation of Rights

¶ 21 Faga argues that the waivers are improper because they violate his First Amendment rights by compelling him to state the evaluations are voluntary. He also argues that the waivers require him to disclose information protected by attorney-client privilege. And Faga argues that the waivers require him to waive his rights to discovery, to seek redress for negligence or malfeasance, and to limit the distribution of private information. However, Faga did not specifically ask the superior court to address the merits of these claims, nor did he request a remedy that was appropriate if the court were to find that the waivers infringed upon his rights. He only asked the court to lift his contempt sanctions and set a trial date.

¶ 22 Faga admits that he is capable of complying with the superior court's order by participating in the evaluations; he is refusing to do so because he believes that the waivers he is being asked to sign infringe upon his rights. But Faga's remedy for that complaint is to ask the superior court to address the specific issues he has with the waivers, not to ask that the contempt be lifted. See id. at 805 (holding that whether the court's order violated the contemnor's constitutional rights is properly addressed by the trial court). Faga has not sought court intervention to allow the evaluations to proceed without waivers.

¶ 23 Also, while failure to comply with an order may be constitutionally protected, the contemnor still bears the burden of proving his rights exceed the interests protected by the court's order to establish an inability to comply. Id. at 804-05. This determination is left to the sound discretion of the trial courts. Id. at 805 (holding whether the court's order violated the right against self-incrimination "must be determined initially by the trial court"). As discussed above, the superior court's decision to rule on Faga's specific request was not unreasonable or based on untenable grounds. Accordingly, the superior court did not err by denying Faga's requested relief; specifically, to lift the contempt sanctions and set the case for trial.

¶ 24 Although the superior court did not err by refusing to grant Faga his requested relief-lift the contempt sanctions and set a trial date-Faga has raised significant issues that remain unaddressed by the superior court. This case is exceptionally old and, while we recognize Faga's intransigence in this case, the superior court's failure to take the opportunity to consider and resolve the underlying issues regarding the waivers only prolongs it. Accordingly, we remand to the superior court for consideration of Faga's underlying concerns regarding the waivers. See id. (the merits of a claim that failure to comply with an order is constitutionally protected must be initially determined by the trial court).

¶ 25 The superior court's order denying Faga's motion to lift his contempt is affirmed, but we remand to the superior court for further proceedings consistent with this opinion.

We concur:

Johanson, J.P.T.

Maxa, C.J.

      RCW 71.09.050(1) states, in relevant part,
      The prosecuting agency shall have a right to a current evaluation of the person by experts chosen by the state. The judge may require the person to complete any or all of the following procedures or tests if requested by the evaluator: (a) A clinical interview; (b) psychological testing; (c) plethysmograph testing; and (d) polygraph testing. The judge may order the person to complete any other procedures and tests relevant to the evaluation.

      Faga also argues that the superior court's order violates due process by subjecting him to indefinite commitment based solely on a finding of probable cause. However, this is the fundamental truth underlying every contempt order subjecting a contemnor to incarceration. This is why "[t]he contemnor must carry the keys of the prison door in [his] own pocket." M.B. , 101 Wash.App. at 460, 3 P.3d 780. As explained above, Faga continues to be in control of whether his contempt is purged. Therefore, the superior court's order does not violate due process by subjecting Faga to indefinite commitment.


author: Sutton, J.

text:
    EXPRESS SCRIPTS, INC., Appellant, v. State of Washington, DEPARTMENT OF REVENUE, Respondent.
    No. 50348-4-II
    Court of Appeals of Washington, Division 2.
    Filed March 26, 2019
    George Carl Mastrodonato, Michael Barr King, Carney Badley Spellman, P.S., 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, for Appellant.
    Charles E. Zalesky, Attorney General of Washington, Rosann Fitzpatrick, Washington Attorney General, Po Box 40123, Olympia, WA, 98504-0123, for Respondent.
    Brett S. Durbin, Lane Powell PC, 1420 5th Ave. Ste. 4200, Seattle, WA, 98101-2375, Chauncey Alan Maclean, Stoel Rives LLP, 600 University St. Ste. 3600, Seattle, WA, 98101-4109, Amicus Curiae on behalf of Optumrx, Inc.
    PUBLISHED OPINION
   Sutton, J.

¶1 Express Scripts Inc. (ESI), a pharmacy benefit management company (PBM), appeals the superior court's order granting summary judgment in favor of the Department of Revenue. ESI argues that it should not be subject to Washington's business and occupation (B&O) tax for payments it receives from clients for the value of prescription drugs because that value qualifies as "pass-through" funds. In the published portion of this opinion, we hold that the portion of payments ESI receives from its clients representing the value of the prescription drugs does not qualify as "pass-through" funds and is subject to the B&O tax.

¶2 In the unpublished portion of this opinion, we reject ESI's remaining arguments. Accordingly, we affirm.

FACTS

I. EXPRESS SCRIPTS

¶3 ESI is a PBM company headquartered in Missouri. ESI's clients include health maintenance organizations, health insurers, third-party administrators, employers, union-sponsored benefit plans, and government health programs. These clients hire ESI, in relevant part, to manage the clients' prescription drug benefit programs. ESI's services include pharmacy network management, claims processing, mail order and specialty mail order pharmaceuticals through ESI affiliates, formulary development, and rebate management.

¶4 ESI negotiates with pharmaceutical manufacturers to obtain rebates and other payments to ESI based on utilization of the pharmaceutical manufacturers' products by ESI's clients' members. Those rebates and fees are negotiated and set forth in contracts independently negotiated and entered into between ESI and the pharmaceutical manufacturers. Pursuant to separate contracts between ESI and its clients, ESI generally pays a portion of the rebates it receives to the clients, and may also guarantee a minimum rebate per prescription dispensed to the clients' members. The rebate portion that the clients receive varies according to each client's contract with ESI.

¶5 ESI contracts with independent third-party retail pharmacies to provide prescription drugs to ESI's clients' members. ESI negotiates with the pharmacies to determine the price at which the pharmacies will provide prescription drugs to the members. When a member presents his or her identification card at a network pharmacy, the network pharmacist sends the specified member and prescription information through ESI's systems which process the claim and respond back to the pharmacy. ESI confirms the member's eligibility for benefits and the conditions or limitations of coverage. If a member's claim is accepted, ESI confirms to the pharmacy that it will receive payment for the drug dispensed according to the agreement entered into between ESI and the pharmacy.

¶6 Periodically, ESI invoices its clients. These invoices include amounts related to the prescription drugs provided by the pharmacies to the clients' members, and administrative and dispensing fees due under the clients' contracts with ESI.

II. DEPARTMENT'S AUDITS OF ESI

¶7 In 2007, the Department audited ESI's corporate subsidiary ESI Mail Pharmacy, Inc. for the period of January 2001 through December 2006. The resulting audit report stated:

Express Scripts also receives a dispensing fee for the costs of providing the pharmacy benefit service. WAC 458-20-194 explains the application of various business and occupation taxes to persons doing business inside and outside of Washington State. Tax is not due upon any part of the gross income received for services incidentally rendered to persons in Washington by a person who is not domiciled or does not maintain a place of business in Washington. Because Express Scripts does not have physical presence in the state and all of the activities associated with this fee occur outside of Washington, none of this fee would be subject to the B&O tax.

Clerk's Papers (CP) at 619-20.

¶8 Several years later, in 2011, the Department audited ESI for the tax period of January 1, 2007 through December 31, 2010. As a result of the audit, the Department issued a tax assessment of $ 11,794,092.00 plus interest and penalties for a total obligation of $ 14,190,659.00.

¶9 ESI paid the assessed amount and sued for a refund under RCW 82.32.180. ESI also sought to invalidate a Department administrative rule, former WAC 458-20-194 (2006)

(Rule 194 (2006) ) under the Administrative Procedure Act (APA). The superior court addressed ESI's claims in two phases: a rule challenge under the APA and a tax refund action under RCW 82.32.180. See CP at 303.

III. PROCEDURAL FACTS

¶10 On January 23, 2017, the Department moved for summary judgment of all of ESI's claims. Two days later, the Department moved for partial summary judgment on the issue of whether ESI had a physical presence in Washington during the audit period, such that it was subject to the B&O tax. The superior court granted the Department's motion for partial summary judgment on the issue of physical presence on March 10.

¶11 On March 24, the superior court entered an order granting the Department's motion for summary judgment on all remaining issues except "the 'pass-through' issue." CP at 949. The superior court ruled that it would take the pass-through issue under advisement and consider additional briefing on the issue. After reviewing supplemental briefing from both parties, the superior court entered an order granting the Department's motion for summary judgment in its entirety on April 14, 2017.

¶12 ESI appeals.

ANALYSIS

I. "PASS-THROUGH" FUNDS

¶13 ESI argues that the superior court erred by granting the Department's motion for summary judgment because payments from its clients for the value of the prescription drugs, or "ingredients," should be exempted from the B&O tax assessment because those amounts are merely "pass-through" funds moving from its clients, through ESI, to the pharmacies. Br. of Appellant 25-26. The Department disagrees and argues that because ESI takes on the obligation to pay retail pharmacies for the prescription drugs as part of its business model, and ESI independently negotiates payment of and recuperation for the value of the prescription drugs with both the retail pharmacies and ESI's clients, it is subject to the B&O tax on the money it receives from its clients. We agree with the Department.

¶14 We review summary judgment orders de novo, performing the same inquiry as the superior court. Washington Imaging Servs., LLC v. Dep't of Revenue , 171 Wash.2d 548, 555, 252 P.3d 885 (2011). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

¶15 B&O taxes are assessed on every person "for the act or privilege of engaging in business activities." RCW 82.04.220(1). The tax is assessed on the "gross income of the business," which is defined as "the value proceeding or accruing by reason of the transaction of the business engaged in" without deductions for business expenses. RCW 82.04.080. Gross income includes "compensation for the rendition of services." RCW 82.04.080. "Value proceeding or accruing" is consideration "actually received or accrued." RCW 82.04.090. In a tax refund action, the taxpayer seeking the refund has the burden of establishing that the Department incorrectly assessed the tax and that the taxpayer is entitled to a refund. RCW 82.32.180.

¶16 The B&O tax does not apply to amounts that "merely 'pass through' a business in its capacity as an agent." Washington Imaging , 171 Wash.2d at 560, 252 P.3d 885 (quoting City of Tacoma v. William Rogers Co. , 148 Wash.2d 169, 175, 60 P.3d 79 (2002) ). Generally, the only way funds qualify for "pass-through" treatment is under WAC 458-22-111 (Rule 111). Washington Imaging , 171 Wash.2d at 559, 252 P.3d 885. "Rule 111 excludes from the definition of 'gross income' certain 'advances' and 'reimbursements' for which the taxpayer assumes solely agent liability." Rho Co., v. Dep't of Revenue , 113 Wash.2d 561, 567, 782 P.2d 986 (1989). B&O tax jurisprudence has routinely required evidence of an agency relationship in order to consider funds as "pass-through" payments. See, e.g., Walthew, Warner, Keefe, Arron, Costello & Thompson v. Dep't of Revenue , 103 Wash.2d 183, 189, 691 P.2d 559 (1984) (compensation qualified as "pass-through funds" where law firm was "acting solely as agent for the client in advancing the type of litigation expense involved here").

¶17 Despite arguing that the payments ESI receives from its clients for the value of the prescription drugs qualify as "pass-through" payments, ESI does not contend that Rule 111 applies. Indeed, ESI acknowledges that no agency relationship exists between ESI and its clients. Instead, ESI argues that First American Title Ins. Co. v. Dep't of Revenue , 144 Wash.2d 300, 27 P.3d 604 (2001) created an alternative basis to achieve "pass-through" status. However, ESI ascribes undue weight to the First American court's use of the term "pass-through."

¶18 First American involved a title insurance company that operated with several underwritten title companies (UTCs) to provide a bundle of services to consumers. First American , 144 Wash.2d at 301-02, 27 P.3d 604. The bundled services included title insurance provided by First American and title abstracting services provided by the UTCs. First American , 144 Wash.2d at 302, 27 P.3d 604. Our Supreme Court's decision in First American relied heavily on the unique nature of the business of UTCs and title insurance companies. See First American , 144 Wash.2d at 304-05, 27 P.3d 604. The court did not mention "pass-through funds" until the very end of its opinion when it concluded "the UTCs merely act as a pass-through entity for the proportional value of the product contributed by the insurer, i.e., 10 percent of the gross proceeds from sale, which is the value of the insurance policy." First American , 144 Wash.2d at 305-06, 27 P.3d 604. The court did not explain what "pass-through funds" meant or outline any standards to be applied in future cases. We hold that the First American court's use of the term "pass-through funds" was dicta and did not create an alternative means of achieving pass-through status for B&O tax purposes. Thus, we analyze ESI's pass-through argument under Rule 111.

¶19 ESI's PBM services include managing all of its clients' drug benefit programs, including the obligation to pay retail pharmacies for drugs dispensed to plan members. Pursuant to its contracts with retail pharmacies, ESI is solely responsible for payment to the pharmacies for the drugs dispensed to plan members and assumes the credit risk of ESI's clients' ability to pay for the drugs. ESI negotiates the payment it receives from its clients for the value of the prescription drugs and separately negotiates how much it will pay retail pharmacies to settle its obligation to them. As such, ESI does not act as a mere pass-through agent for its clients. Rather, the compensation ESI receives from its clients for the value of the prescription drugs is an integral part of ESI's business model for its PBM services.

¶20 ESI analogizes its business to that of credit card processors, who "are not subject to B&O tax on amounts passed through to merchants." Br. of Appellant 27. But ESI and other PBM companies differ from credit card processors because credit card processors are not parties to the contractual agreement between bank, cardholder, and merchant, whereas PBM companies independently negotiate prices with both clients and pharmacies.

¶21 Credit card processors' activities are limited to processing the credit card payment, for which it receives gross income in the form of a merchant discount fee. See , Br. of Appellant, App. A, (Excise Tax Advisory 3204.2017). The funds forwarded by the issuing bank to the merchant in settlement of the cardholder's debt obligation are unrelated to the credit card processor's business activity.

¶22 In contrast, the portion of ESI's payment from its clients representing the value of the prescription drugs is part and parcel of the amount ESI contracted to receive in compensation for its PBM services. Under its contracts, ESI assumes the obligation to pay retail pharmacies for the prescription drugs dispensed to its clients' members, and ESI retains the right to realize a profit on the difference between the amount it pays pharmacies and the amount it charges clients for its services. The relationship between pharmacies, ESI, and ESI's clients is significantly different from the relationship between issuing banks, credit card processors, and merchants. Thus, ESI's analogy fails. ¶23 We hold that the portion of payments ESI receives from its clients representing the value of the prescription drugs does not qualify as "pass-through" funds and is subject to the B&O tax. Accordingly, we affirm the superior court's order granting summary judgment in favor of the Department.

¶24 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.

We concur:

Lee, A.C.J.

Worswick, J.

      Ch. 82.04 RCW.

      Ch. 34.05 RCW.


author: Melnick, J.

text:
    Jodi BRUGH, an individual, Appellant, v. FUN-TASTIC RIDES CO., an Oregon corporation; Midway Rides LLC, a Washington limited liability company; John Doe Manufacturer, an unknown entity, Respondents.
    No. 51055-3-II
    Court of Appeals of Washington, Division 2.
    Filed March 26, 2019
    William Christopher Schroeder, KSB Litigation, P.S., 221 N. Wall St., Ste. 210, Spokane, WA, 99201-0824, for Appellant.
    Patricia Kay Buchanan, Timothy T. Parker, Patterson Buchanan Fobes & Leitch, Timothy Hall Campbell, Attorney at Law, 2112 3rd Ave., Ste. 500, Seattle, WA, 98121-2326, for Respondent.
    PUBLISHED OPINION
   Melnick, J.

¶ 1 While riding a roller coaster at the Washington State Fair, Jodi Brugh received a severe injury that resulted in a subdural hematoma that required brain surgery. Brugh sued Fun-Tastic Rides Co., Midway Rides LLC, and John Doe Manufacturer (collectively Fun-Tastic), alleging negligence. She relied on the doctrine of res ipsa loquitur to establish a breach of duty. Fun-Tastic moved for summary judgment on the theory that res ipsa loquitur did not apply, and after reconsideration, the trial court granted the motion.

¶ 2 We reverse.

FACTS

¶ 3 Fun-Tastic operated a roller coaster at the Washington State Fair. Before the start of the Fair, the Department of Labor and Industries (L&I) inspected the roller coaster for safety. L&I issued a permit for the roller coaster. Fun-Tastic inspected the ride on September 16, 2013, found no abnormalities, and noted that the "Ride is Running well." Clerk's Papers (CP) at 46.

¶ 4 On September 16, Brugh rode Fun-Tastic's roller coaster. Brugh described the last turn of the roller coaster as a sudden and violent jolt. As a result of the jolt, she struck both sides of her head on the roller coaster's safety harness. Subsequently, she lost hearing in her right ear. Fearing that she had a blown eardrum, she went to the Fair's medical tent for assistance. The Fair's medical staff recommended that she either go to urgent care or see her doctor the next day.

¶ 5 The next day, Brugh saw her primary care physician, Dr. Rachael Gonzalez. Brugh was bleeding from her ears.

Because Brugh had a history of ear infections, Dr. Gonzalez attributed the bleeding to an ear infection.

¶ 6 On October 7, Brugh again saw Dr. Gonzalez. Brugh reported "severe and debilitating" head and neck pain. CP at 89. Dr. Gonzalez diagnosed Brugh with, among other injuries, "[s]evere traumatic brain injury" and a "[s]ubdural hematoma post head injury." CP at 90. Dr. Gonzalez believed the injuries were, more probably than not, "directly related to the head trauma Ms. Brugh suffered from the rollercoaster ride." CP at 90.

¶ 7 Dr. Gonzalez referred Brugh to a neurologist for an emergency consultation. Brugh had brain surgery for the subdural hematoma on October 16.

¶ 8 Brugh then filed a complaint alleging Fun-Tastic's negligence. After some discovery, Fun-Tastic moved for summary judgment. The court denied the motion.

¶ 9 Fun-Tastic filed a motion for reconsideration. The court heard oral argument, granted Fun-Tastic's motion, and dismissed Brugh's claims. Brugh appeals.

ANALYSIS

I. LEGAL PRINCIPLES

A. Summary Judgement

¶ 10 We review an order for summary judgment de novo, performing the same inquiry as the trial court. Aba Sheikh v. Choe , 156 Wash.2d 441, 447, 128 P.3d 574 (2006). "We consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party." Rublee v. Carrier Corp. , 192 Wash.2d 190, 199, 428 P.3d 1207 (2018). "Summary judgment is proper when the record demonstrates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Munich v. Skagit Emergency Commc'ns Ctr. , 175 Wash.2d 871, 877, 288 P.3d 328 (2012).

B. Res Ipsa Loquitur

¶ 11 In an action for negligence, a plaintiff must prove four basic elements: "(1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause." Degel v. Majestic Mobile Manor, Inc. , 129 Wash.2d 43, 48, 914 P.2d 728 (1996). The parties dispute only breach of duty.

¶ 12 Res ipsa loquitur "provides an inference as to the defendant's breach of duty." Curtis v. Lein , 169 Wash.2d 884, 892, 239 P.3d 1078 (2010). Whether res ipsa loquitur applies is a question of law. Pacheco v. Ames , 149 Wash.2d 431, 436, 69 P.3d 324 (2003).

¶ 13 A plaintiff may rely on res ipsa loquitur's inference of breach of duty if three elements are met: "(1) the accident or occurrence that caused the plaintiff's injury would not ordinarily happen in the absence of negligence, (2) the instrumentality or agency that caused the plaintiff's injury was in the exclusive control of the defendant, and (3) the plaintiff did not contribute to the accident or occurrence." Curtis , 169 Wash.2d at 891, 239 P.3d 1078. The parties dispute only the first element.

¶ 14 The first element is satisfied in any of three conditions:

"(1) When the act causing the injury is so palpably negligent that it may be inferred as a matter of law ... ; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; [or] (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries."

Curtis , 169 Wash.2d at 891, 239 P.3d 1078 (internal quotation marks omitted) (quoting Pacheco , 149 Wash.2d at 438-39, 69 P.3d 324 ). The parties here dispute the applicability of the second condition.

¶ 15 "[T]he res ipsa loquitur doctrine allows the plaintiff to establish a prima facie case of negligence when he cannot prove a specific act of negligence .... Once the plaintiff establishes a prima facie case, the defendant must then offer an explanation, if he can." Pacheco , 149 Wash.2d at 441, 69 P.3d 324. Res ipsa loquitur is inapplicable only where the defendant's evidence completely explains the plaintiff's injury. Pacheco , 149 Wash.2d at 440, 69 P.3d 324. "Thus, the plaintiff may be entitled to rely on the ... doctrine even if the defendant's testimony, if believed by the jury, would explain how the event causing injury to the plaintiff occurred." Pacheco , 149 Wash.2d at 440, 69 P.3d 324. Fun-Tastic does not argue that it presented evidence explaining Brugh's injury. Instead, it contends that Brugh has not established her prima facie case.

¶ 16 To summarize, the parties do not dispute that Fun-Tastic owed Brugh a duty as a business invitee, that Brugh's injuries were caused by Fun-Tastic, or that Brugh suffered damages. They dispute only whether Fun-Tastic breached its duty of care. They dispute the applicability of res ipsa loquitur to establish this element.

¶ 17 Regarding the applicability of res ipsa loquitur, the parties do not dispute that Fun-Tastic maintained exclusive control of the roller coaster that caused Brugh's injury. They also agree that Brugh did not contribute to her own injury. The parties dispute only the applicability of res ipsa loquitur's first element. In determining whether this element is established, the parties dispute whether " 'the general experience and observation of mankind teaches that the result would not be expected without negligence.' " Curtis , 169 Wash.2d at 891, 239 P.3d 1078 (internal quotation marks omitted) (quoting Pacheco , 149 Wash.2d at 438-39, 69 P.3d 324 ). Thus, determining whether this condition is satisfied is dispositive to the current appeal.

II. BRUGH'S ROLLER-COASTER RIDE

¶ 18 Brugh argues she experienced an abnormally strong jolt on her roller-coaster ride that caused her to hit her head on the roller coaster's safety harness. This injury resulted in a subdural hematoma that required brain surgery. Brugh argues that general experience teaches that such an impact leading to her brain injury does not ordinarily occur on roller coasters, absent negligence.

¶ 19 Fun-Tastic argues that Brugh must show something more than just the extent of her injuries to show that the roller coaster operated abnormally. Fun-Tastic claims that the roller coaster operated as expected and that any jolts were the normal jolts of the roller coaster.

A. Using Resulting Injuries as the "Result"

¶ 20 The parties dispute whether res ipsa loquitur's first element may be satisfied by showing that the resulting injury would not be expected without negligence. We conclude it can.

¶ 21 In ZeBarth v. Swedish Hospital Medical Center , 81 Wash.2d 12, 20, 499 P.2d 1 (1972), the court looked to the nature of the plaintiff's injuries in applying res ipsa loquitur. In the case, approximately one year after the plaintiff received treatment for Hodgkin's disease, he became paralyzed. ZeBarth , 81 Wash.2d at 13, 499 P.2d 1. He sued the hospital where he received treatment. ZeBarth , 81 Wash.2d at 13, 499 P.2d 1. The plaintiff relied on res ipsa loquitur to prove that his medical injuries would not have occurred if the hospital's version of the events was accurate. ZeBarth , 81 Wash.2d at 20, 499 P.2d 1. That is, he argued that an intervention of someone's negligence must have occurred to leave him paralyzed. ZeBarth , 81 Wash.2d at 18, 20, 499 P.2d 1. At trial, the plaintiff called experts who speculated about potential hospital actions that could have caused his paralysis. ZeBarth , 81 Wash.2d at 15-17, 499 P.2d 1. The jury found for the plaintiff, and the hospital appealed. ZeBarth , 81 Wash.2d at 13-14, 18, 499 P.2d 1.

¶ 22 The hospital argued that, in the absence of direct proof of the injury-causing event, res ipsa loquitur was improper. ZeBarth , 81 Wash.2d at 18, 499 P.2d 1. The court rejected the hospital's argument and concluded that the record permitted the plaintiff to rely on res ipsa loquitur. ZeBarth , 81 Wash.2d at 22, 499 P.2d 1. Specifically, in discussing whether the general experience and observation of mankind teaches that the result would not be expected without negligence, the court noted that "high voltage radiation in the treatment of cancer has been widely enough and long enough employed in this country to allow the jury to find that ... paralysis ordinarily will not result from its use except for the intervention of someone's negligence." ZeBarth , 81 Wash.2d at 20, 499 P.2d 1.

¶ 23 Although ZeBarth occurred in the medical malpractice context, the court's reasoning is applicable here. ZeBarth recognized that to establish whether the general experience and observation of mankind teaches that the result would not be expected without negligence, the result need not be the specific injury-causing event (e.g., a barrel falling out of a window). 81 Wash.2d at 20, 499 P.2d 1. Rather, the result can be the plaintiff's resulting injuries (e.g., paralysis). ZeBarth , 81 Wash.2d at 20, 499 P.2d 1. Thus, the court permitted the plaintiff in ZeBarth to do what Brugh attempts here.

¶ 24 In Robison v. Cascade Hardwoods, Inc. , 117 Wash. App. 552, 566-67, 72 P.3d 244 (2003), we similarly looked to the nature of the plaintiff's injuries in applying res ipsa loquitur. There, a logging-truck driver suffered a severe electrical shock while operating the defendant's trailer loader. Robison , 117 Wash. App. at 555, 566, 72 P.3d 244. The trial court granted summary judgment to the defendant on the ground that res ipsa loquitur did not apply. Robison , 117 Wash. App. at 561-62, 72 P.3d 244. We reversed, stating, "[G]eneral experience and observation [teaches] that, absent evidence of an act of God, individuals ordinarily do not suffer severe electrical shocks unless someone has been negligent." Robison , 117 Wash. App. at 567, 72 P.3d 244 (footnote omitted).

¶ 25 Our decision turned on the nature of the shock. See Robison , 117 Wash. App. at 567, 72 P.3d 244. For example, general experience teaches that minor shocks, like those resulting from static electricity, do occur in the absence of negligence. But severe shocks are different. In the absence of negligence, they do not ordinarily occur while operating a trailer loader. Robison , 117 Wash. App. at 567, 72 P.3d 244. Thus, we looked to the nature of the plaintiff's injuries and determined whether general experience teaches that those injuries ordinarily happen in the absence of negligence. Robison , 117 Wash. App. at 567, 72 P.3d 244.

¶ 26 Language from the Supreme Court further supports our conclusion. In Zukowsky v. Brown , 79 Wash.2d 586, 594-95, 488 P.2d 269 (1971), the court recognized that application of res ipsa loquitur depends on whether "the manner and circumstances of the damage or injury be of a kind that do not ordinarily happen in the absence of someone's negligence." In Pacheco , the court again recognized that the doctrine takes effect when "a plaintiff asserts that he or she suffered injury, the cause of which cannot be fully explained, and the injury is of a type that would not ordinarily result if the defendant were not negligent." 149 Wash.2d at 436, 69 P.3d 324. Thus, Zukowsky and Pacheco further suggest that we may determine whether res ipsa loquitur's first element is established by analyzing whether the general experience and observation of mankind teaches that the nature of plaintiff's injury would not be expected without negligence.

¶ 27 Accordingly, we conclude that it is appropriate to examine the nature of an injury when analyzing the first element of res ipsa loquitur. The issue here then is whether the general experience and observation of mankind teaches that a subdural hematoma would not be expected from riding a roller coaster without negligence.

B. General Experience and Observations

¶ 28 Brugh argues that "general experience counsels that properly inspected, maintained, and operated roller coasters[ ] do not slam heads into shoulder rests with the requisite force to cause a subdural hematoma," absent negligence. Br. of Appellant at 17. We agree.

¶ 29 For purposes of its motion for summary judgment, Fun-Tastic makes numerous concessions. It does not dispute causation or allege that Brugh contributed to her own injury. Thus, Fun-Tastic recognizes that Brugh, while strapped into the roller coaster, hit her head during the course of the ride. It recognizes that Brugh's subsequent subdural hematoma directly resulted from hitting her head during the roller-coaster ride. It also recognizes that Brugh did not contribute in any way to her injury. Yet, Fun-Tastic argues that the roller coaster operated as expected. The general experience and observation of mankind teaches that these cannot all simultaneously be true. See Bibeau v. Fred W. Pearce Corp. , 173 Minn. 331, 334, 217 N.W. 374 (1928) ("One would hardly suppose it possible for defendant to continue the roller-coaster business if such accidents were ordinary occurrences.").

¶ 30 We recognize that certain injuries are to be expected while riding roller coasters. For example, general experience teaches that people may receive minor bumps to their head from the safety harness of a roller coaster during a ride. General experience teaches that people may receive minor whiplash while riding a roller coaster. However, general experience teaches that a subdural hematoma brain bleed does not ordinarily happen while strapped into a roller coaster in the absence of negligence. Accordingly, the nature of Brugh's injury is not of a type that one would expect while riding a roller coaster.

¶ 31 We do not determine which types of injuries are severe enough to invoke the doctrine of res ipsa loquitur in all cases. Instead, whether a plaintiff may rely on res ipsa loquitur "depends upon the peculiar facts and circumstances of the individual case." Morner v. Union Pac. R.R. Co. , 31 Wash.2d 282, 293, 196 P.2d 744 (1948). Here, we simply recognize that this specific injury, Brugh's subdural hematoma, would not ordinarily occur while strapped into a roller coaster without negligence. Res ipsa loquitur, therefore, provides an inference of a breach of duty.

¶ 32 Other jurisdictions considering similar facts have arrived at the same conclusion. In Bibeau , the plaintiff rode the defendant's roller coaster and hit her nose on the safety bar; the hit broke her nose and rendered her unconscious. 173 Minn. at 333, 217 N.W. 374. The Supreme Court of Minnesota concluded that res ipsa loquitur applied. "[I]f such accidents were ordinary occurrences," the court reasoned that roller-coaster companies would find willing patrons hard to come by. Bibeau , 173 Minn. at 334, 217 N.W. 374. Thus, the plaintiff's abnormal injuries must have been the result of an abnormal roller-coaster ride, which do not ordinarily occur in the absence of negligence. See Bibeau , 173 Minn. at 334, 217 N.W. 374.

¶ 33 In Jenkins v. Ferguson , 357 So.2d 39, 40 (La. Ct. App. 1978), the plaintiff broke her leg after being thrown from an amusement park ride called the "Scrambler." The evidence showed that the plaintiff's fiancé, who accompanied her on the Scrambler, "first locked the device and subsequently the operator came back unlocked it and locked it properly, rattling it to be sure that it was properly locked." Jenkins , 357 So.2d at 40-41. Nonetheless, the door opened, and the plaintiff was thrown from the ride. Jenkins , 357 So.2d at 40.

¶ 34 The Court of Appeal of Louisiana concluded that because the elements of exclusive control and contributory negligence were not in dispute, "this is a proper case for the application of the doctrine of res ipsa loquitur. No one knows what happened .... We do know that the locking device did not work properly... [but n]o one knows ... why." Jenkins , 357 So.2d at 41.

¶ 35 In Coaster Amusement Co. v. Smith , 141 Fla. 845, 846-47, 194 So. 336 (1940), out of the 1,236 patrons who rode the roller coaster on the night in issue, only the plaintiff suffered an injury. While the plaintiff rode the roller coaster, "the car in which she was riding was by some means caused to perform a sudden and unusual jerk," and as a result, the plaintiff was thrown from the roller-coaster car and injured. Coaster Amusement , 141 Fla. at 846, 194 So. 336. ¶ 36 The defendant presented the following evidence. Before the plaintiff's injury, the roller coaster was inspected every day, and no defects were found. Coaster Amusement , 141 Fla. at 847, 194 So. 336. Immediately after the plaintiff's injury, the defendant inspected both the car in which the plaintiff rode and the roller coaster's track. Coaster Amusement , 141 Fla. at 847, 194 So. 336. The defendant found nothing wrong with either. Coaster Amusement , 141 Fla. at 847, 194 So. 336. Further, the day after the injury, the roller coaster operated with no mishaps. Coaster Amusement , 141 Fla. at 847, 194 So. 336. The defendant had not repaired or replaced any parts in the intervening time. Coaster Amusement , 141 Fla. at 847, 194 So. 336. However, the defendant offered "no explanation of the cause of the unusual gyrations of [the roller coaster]." Coaster Amusement , 141 Fla. at 847, 194 So. 336.

¶ 37 The trial court instructed the jury on res ipsa loquitur, and the jury found in favor of the plaintiff. Coaster Amusement , 141 Fla. at 846-47, 856, 194 So. 336. The Supreme Court of Florida approved the res ipsa loquitur instruction based upon the facts of the case. Coaster Amusement , 141 Fla. at 856, 194 So. 336.

CONCLUSION

¶ 38 Because we conclude that Brugh's injury, a subdural hematoma, is not of a type one would expect while riding a roller coaster without negligence, we conclude that the doctrine of res ipsa loquitur applies to her case. Therefore, the trial court erred in granting Fun-Tastic's motion for summary judgment.

¶ 39 We reverse.

We concur:

Worswick, J.

Maxa, C.J.

      The "jury is [still] free to disregard or accept the truth of the inference." Curtis , 169 Wash.2d at 895, 239 P.3d 1078.

      We also reject Fun-Tastic's argument that the injury-causing instrumentality must be destroyed before a plaintiff may rely on the doctrine. Fun-Tastic argues if the instrumentality is not destroyed, a plaintiff can inspect it, and res ipsa loquitur is inapplicable. Fun-Tastic's argument relies on the concurrence from Curtis . 169 Wash.2d at 896, 239 P.3d 1078 (Madsen, C.J., concurring). However, no binding authority holds that res ipsa loquitur may only be applied when the injury-causing instrumentality has been destroyed or is otherwise unavailable to the plaintiff. In fact, in numerous cases the injury-causing instrumentality was not destroyed, yet the plaintiff was able to rely on res ipsa loquitur's inference of breach of duty. See, e.g. , Zukowsky , 79 Wash.2d at 589, 488 P.2d 269 ; Robison , 117 Wash. App. at 560, 566-67, 72 P.3d 244.