Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 CAROLA WASHBURN and JANET                     )          No. 66534-1-I
 LOH, individually and on behalf of the        )
 ESTATE OF BAERBEL K.                          )          DIVISION ONE
 ROZNOWSKI, a deceased person,                 )
                                               )
                       Respondents,            )
                                               )
                v.                             )
                                               )
 CITY OF FEDERAL WAY, a                        )          PUBLISHED
 Washington corporation,                       )
                                               )          FILED: March 26, 2012
                       Appellant.              )
                                               )
                                               )

       Cox, J.  --  This is a wrongful death action arising from an act of domestic 

violence in which Paul Kim stabbed to death Baerbel Roznowski, his intimate 

partner, in her home.  Kim murdered Roznowski shortly after a City of Federal 

Way police officer served Kim with a temporary protection order restraining him 

from either contacting Roznowski or being within 500 feet of her residence.
       Unchallenged jury instructions become the law of the case.1  Here, the 

City did not object below to the substance of the trial court's instruction regarding 

its police department's duty to exercise ordinary care in the service and 

       1 State v. Hickman, 135 Wn.2d 97, 101-02, 954 P.2d 900 (1998); Garcia 
v. Brulotte, 94 Wn.2d 794, 797, 620 P.2d 99 (1980). 

No. 66534-1-I/2

enforcement of court orders. Likewise, the City does not challenge that 

instruction on appeal.  A jury could rationally find from the evidence in this 

record that the City breached its duty to Roznowski to enforce the protection 

order.  Thus, the jury verdict stands to the extent of liability and damages in 

favor of Roznowski's estate.

       The City claims that the trial court erroneously denied its first summary 

judgment motion.  We do not generally review an order denying summary 
judgment after a case goes to trial.2 Here, there were material factual issues 

prior to trial, and the denial of the City's first motion for summary judgment did 

not turn solely on a substantive issue of law.  Accordingly, we do not review the 

denial of this summary judgment motion.

       The City also claims that the court erroneously denied its Civil Rule 50(a) 
motion for judgment as a matter of law at the end of the plaintiff's case in-chief.3

In order to lay a foundation for appeal, the City was required to either renew its 

motion pursuant to CR 50(b) or move for a new trial, claiming insufficiency of 
evidence to support the verdict.4 Here, the City did neither.  Accordingly, we do 

not review the trial court's denial of the CR 50(a) motion at the close of the 

plaintiff's case-in-chief.

       2 Kaplan v. Nw. Mut. Life Ins. Co., 115 Wn. App. 791, 799-800, 65 P.3d 
16 (2003), review denied, 151 Wn.2d 1037 (2004); see also Univ. Vill. Ltd. 
Partners v. King County, 106 Wn. App. 321, 324, 23 P.3d 1090 (2001).

       3 Brief of Appellant City of Federal Way at 24-25.  

       4 Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 399-401, 
126 S. Ct. 980, 163 L. Ed. 2d 974 (2006). 

                                               2 

No. 66534-1-I/3

       Finally, the trial court properly exercised its discretion by granting the 

motion for a new trial on damages to Roznowski's daughters, Carola Washburn 

and Janet Loh (collectively "Washburn").  We affirm the judgment on the verdict 

to the extent of liability and damages to Roznowski's estate and also affirm the 
grant of a new trial on Washburn's damages.5

       Kim and Roznowski were intimate partners. Each had a separate 

residence, but Kim spent most of his time living at Roznowki's home in Federal 

Way.

       The relationship between the two grew increasingly troubled.  Several 

days before the events that gave rise to this action, Roznowski called 911 to 

report a verbal domestic situation.  The police reported that Roznowski and Kim 

had calmed down prior to their arrival and neither of them showed any signs of 

injury.  Nevertheless, in accordance with the City police's protocol for domestic 

disturbance calls, an officer left a domestic violence booklet with Roznowski. 

The officer also explained to Roznowski that she could obtain an anti-

harassment order.  

       Days after this incident, Roznowski contacted a domestic violence 

advocate working at the King County Prosecutor's Office located in the Norm 

Maleng Regional Justice Center.  After consultation with the advocate, 

Roznowski sought a protection order from the superior court to restrain Kim from 

       5 Washburn moved to strike the City's late filing of its Amended Response 
to Brief of Amici Curiae Legal Voice and Washington Women Lawyers.  We 
grant the motion in part and do not consider any new material in the City's 
amended brief.

                                               3 

No. 66534-1-I/4

being in her home or near her.  She completed the paperwork herself and 

presented it for consideration by a court commissioner on May 1, 2008. The 

paperwork included a Petition for an Order for Protection-AH and a proposed 
Temporary Protection Order and Notice of Hearing-AH.6  

       Roznowski's affidavit supporting her petition for the protection order 

identified Kim as the person from whom she sought protection and identified him

as her "boyfriend."  The affidavit also stated, among other things, that his most 

recent acts included:

       4/30 verbal attacks by Paul Kim because I moved wood to clean 
       yard. He is vehement about owning this pile of wood along with a 
       stack, 10' W x 6' H along the fence, as well as misc. supplies on 
       side of fence.  I gave him notice that I'll [sic] plan to move 2 years 
       ago.  Nothing was done.
       . . . . 
       4/29 verbal attacks about same subject. He won't commit when 
       he'll remove items and personal belongings in crawl space.  I can't 
       put house on market for sale until done.  He deliberately stalls, and 
       the repeated answer is it takes time. . . .  Paul Kim's residence is at 
       331 S 1st  ... Federal Way but stays at [Roznowski's] home.  He has 
       violent, verbal, insulting outbursts. 
       . . . . 
       [l]ast year [Kim's] outburst frightened me, I called 911, he came 
       close to hitting me.  He left my place as promised.  Within 15 min. I 
       received several calls from him. I changed the locks except for one 
       door.  

       He is capable of physical violence.  I witnessed him beating his 
       oldest son in the past.  In his present state of mind he can easily 
       retaliate with [sic] me.[7]

       A court commissioner entered Roznowski's proposed temporary 

protection order.  By its plain terms, it restrained Kim "from making any attempts 

       6 Plaintiff's Trial Exhibit 2. 

       7 Id. at 7.

                                               4 

No. 66534-1-I/5

to contact" Roznoswki.8 It also restrained him "from entering or being within 500 

feet" of her residence.9 The order also stated a return date of May 14, 2008, at 

8:30 a.m. for a hearing on the issuance of a permanent protection order.  

       Roznowski then delivered copies of her petition and the temporary 
protection order to the City's police department for service on Kim.1 At the police 

department, she completed and submitted an additional document called a Law 
Enforcement Information Sheet (LEIS).11

       The LEIS states at the top of the form:

       Do NOT serve or show this sheet to the restrained person! Do NOT 
       FILE in the court file.  Give this form to law enforcement.[12]

       Below the above directives in the LEIS, Roznowski provided additional 

information about Kim to the police.  She stated that an interpreter who spoke 
Korean would be needed to serve Kim.13 She provided his residence address,

but further specified that he could be served at her residence address.14  

       Under the portion of the LEIS seeking "Hazard Information" about Kim, 

       8 Id. at 4.
       9 Id.

       1 RCW 10.14.100(2) provides: "The sheriff of the county or the peace 
officers of the municipality in which the respondent resides shall serve the 
respondent personally unless the petitioner elects to have the respondent 
served by a private party."

       11 Plaintiff's Trial Exhibit at 4.  

       12 Id. at 2 (emphasis added). 

       13 Id.

       14 Id.

                                               5 

No. 66534-1-I/6

Roznowski checked the box marked "Assault."15  The LEIS also states that Kim 

is a "current or former cohabitant as an intimate partner" and that Roznowski and 
Kim are "living together now."16 The LEIS states further that Kim did not know 

that he would be "moved out of the home."17  The LEIS also states that Kim did 

not know that she was obtaining the protection order.18  

       Significantly, Roznowski also stated in the LEIS that Kim was "likely to 
react violently when served."19  

       Early in the morning of May 3, 2008, Officer Andrew Hensing of the City's 

police department picked up a folder at police headquarters in order to perform 

the service of the protection order on Kim that Roznowski sought.  The folder 

included Roznowski's affidavit and petition for a protection order, the temporary 

protection order entered by the commissioner, and the LEIS that we described 
earlier in this opinion.2

       Around 8:00 a.m. that morning, Officer Hensing arrived near Roznowski's

residence and parked his vehicle.  He testified at trial that he did not completely 
read the papers in the folder prior to serving Kim.21 Thus, he was then unaware 

       15 Id.
       16 Id.

       17 Id.

       18 Id.

       19 Id.

       2 Report of Proceedings (Dec. 9, 2010) at 6-7. 

       21 Id. at 13-14. 

                                               6 

No. 66534-1-I/7

of the information about Kim contained in the LEIS and in Roznowski's affidavit 

supporting her petition for a protection order.  It appears that he did not read the 

information in the LEIS stating that a Korean interpreter would be needed 

because there was no interpreter with the officer.

       Officer Hensing testified at trial that he knocked at the front door of 
Roznowski's home, and Kim answered.22 Officer Hensing asked Kim to identify 

himself.23 The officer then served the order on Kim.  According to the officer, a

brief conversation between the two followed.  

       Officer Hensing testified that he told Kim that he had been served with an 
anti-harassment order and that there was a hearing date stated in the order.24  

He asked Kim if he could read English and told Kim to read the order, which he 
testified that Kim then did.25 Officer Hensing also testified that he asked Kim if 

he had any questions.26

       Officer Hensing testified that he "saw someone in the background" during 

the exchange with Kim at the door of Roznowski's home, but did not know 
whether the person "was male or female."27 He did not inquire further and 

returned to his parked vehicle.  There, he completed the return of service form.  

       22 Id. at 36.

       23 Id. at 37-38. 

       24 Id. at 38-39. 

       25 Id. at 36, 39.

       26 Id. at 38-39.

       27 Id. at 39.

                                               7 

No. 66534-1-I/8

The entire interaction with Kim took about five minutes and was completed by 
8:13 a.m.28 Officer Hensing left the scene without taking any further action.

       The evidence at trial showed that Kim remained at Roznowski's residence 

after Officer Hensing departed.   This was notwithstanding the protection order's 

direction that Kim was restrained from either entering or being within 500 feet of 

the residence or from contacting Roznowski.  

       Less than an hour after Officer Hensing served Kim, Roznowski sent an e-

mail message to her daughter, Carola Washburn.  She wrote:

       Well -- [Kim] was served this morning.  He doesn't understand a thing and 
       right away the blame came I am making trouble. . . .  I gave him until 11 to 
       move stuff, then I'll get the key and garage door opener.[29]

       Kim called a friend and asked him to come over.  Kim left the house with 

his friend for a brief period to go to a bank.  He withdrew funds, gave them to the 

friend, and asked that the friend give the funds to his nephew.  The friend then 

drove Kim back to Roznowski's residence.

       The friend became concerned about Kim based on his actions and 

statements during the trip to the bank.  The friend contacted police with these 

concerns.  Police responded by going to Roznowski's house.  They arrived at 
11:55 a.m.3

       Police discovered that Kim, in the ultimate act of domestic violence, had 

stabbed Roznowski 18 times with a knife.  She died of her wounds at the scene 

       28 Id. at 21; Plaintiff's Trial Exhibit 2 at 9.

       29 Plaintiff's Exhibit 50. 

       3 Report of Proceedings (Dec. 8, 2010) at 8.

                                               8 

No. 66534-1-I/9

of the crime.

       Washburn, individually and on behalf of Roznowski's estate, commenced 

this wrongful death action against the City.  The two daughters alleged 

negligence, negligent infliction of emotional distress, and negligent supervision 

and training on the part of the City. The City denied liability, asserting that the 

public duty doctrine was a bar to all claims.  

       The City's first motion for summary judgment was based solely on the 

defense that the public duty doctrine barred all claims.  The trial court denied the 

motion and the motion to reconsider.  

       The City sought discretionary review of the denial of its summary 

judgment motion.  A commissioner of this court denied review, and a panel of 

judges denied the City's motion to revise that ruling.  

       The City's theory of the case at trial was that the public duty doctrine was 

a bar to all claims.  The City took the position that Roznowski's choice to seek 

protection from Kim by way of an anti-harassment protection order pursuant to 

chapter 10.14 RCW rather than a protection order under chapter 26.50 RCW

relieved the City of any duty to her other than to serve the order and complete 

and file the return of service.
       In Donaldson v. City of Seattle,31 this court held that police officers have a 

mandatory duty to arrest alleged abusers if there are legal grounds to do so 
under the Domestic Violence Prevention Act, chapter 10.99 RCW.32 Thus, here

       31 65 Wn. App. 661, 831 P.2d 1098 (1992).
       32 Id. at 669-71.

                                               9 

No. 66534-1-I/10

the City implicitly concedes that this case should have gone to trial if Roznowski

had obtained the "right" form or order, rather than the "wrong" one. 

       Washburn disagreed with the City's contentions at trial.  She argued that 

the City had a duty to enforce the protection order entered by the court on May 

1, 2008.  For various reasons, Washburn claimed that the public duty doctrine 

did not bar the claims.  

       At the close of Washburn's case in chief and prior to presenting its own 

case, the City moved for judgment as a matter of law, as provided for by 
Superior Court Rule (CR) 50(a).33 The trial court denied this motion. 

       The jury returned a $1.1 million verdict solely in the estate's favor.  It did 

not award any damages to either of Roznowski's daughters, individually.  The 

court entered judgment on the verdict. 

       The City neither renewed its CR 50(a) motion pursuant to CR 50(b) nor

moved for a new trial pursuant to CR 59.  Washburn moved for a new trial solely 

on damages.  The trial court granted Washburn's motion.  

       The City appeals.

                                 LAW OF THE CASE

       A primary issue on appeal centers on the effect of the City's failure to 

object to the substance of the trial court's Instruction 12, and its failure either to 

assign error to the instruction or to argue on appeal that its giving was improper.  

This instruction states the City's duty to exercise ordinary care in the service and 

       33 Clerk's Papers at 2049-59. 

                                              10 

No. 66534-1-I/11

enforcement of protection orders. As Washburn correctly argues, this instruction 

constitutes the law of the case. Thus, the only question on appeal is whether 
there is sufficient evidence to sustain the verdict under the instructions given.34  

       We hold that Instruction 12, to which the City did not object in substance, 

is the law of the case.  Additionally, there was sufficient evidence for the jury to 

find that the City breached its duty to Roznowski, as defined by the instruction.

       Under the law of the case doctrine, instructions given to the jury by the 
trial court, if not objected to, shall be treated as the properly applicable law.35

State v. Hickman,36 is particularly instructive in the application of that doctrine to 

this case.

       There, the defendant was tried for insurance fraud in Snohomish County 
Superior Court.37 The information charged him with presenting, or causing to be 

       34 Hickman, 135 Wn.2d at 101-03 (citing Tonkovich v. Dep't of Labor and 
Indus., 31 Wn.2d 220, 225, 195 P.2d 638 (1948)); see also Noland v. Dep't of 
Labor & Indus., 43 Wn.2d 588, 590, 262 P.2d 765 (1953) ("No assignments of 
error being directed to any of the instructions, they became the law of the case 
on this appeal, and the sufficiency of the evidence to sustain the verdict is to be 
determined by the application of the instructions and rules of law laid down in 
the charge."); Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 917, 32 P.3d 
250 (2001) (citing Ralls v. Bonney, 56 Wn.2d 342, 343, 353 P.2d 158 (1960) (
"Instructions to which no exceptions are taken become the law of the case."); 
Chelan County Deputy Sheriffs' Ass'n v. Chelan County, 109 Wn.2d 282, 300 
n.10, 745 P.2d 1 (1987).

       35 Hickman 135 Wn.2d at 102-03 (internal citations omitted); Lutheran 
Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992)) 
(internal citations omitted). 

       36 135 Wn.2d 97, 954 P.2d 900 (1998).

       37 Id. at 99.

                                              11 

No. 66534-1-I/12

presented, in Snohomish County, a false or fraudulent insurance claim.38 The to-

convict instruction at trial specified the elements of the crime of insurance fraud, 

but added an additional element: that the act occurred in Snohomish County, 
Washington.39 The State did not object to this added element.4 The jury 

returned a guilty verdict.41

       Hickman appealed, arguing that the State assumed the burden to prove 
that the act occurred in Snohomish County and failed to do so.42 This court 

rejected Hickman's argument and affirmed.43 The supreme court granted review 

and reversed.

       In discussing the law of the case doctrine, the supreme court stated that it 

is "an established doctrine with roots reaching back to the earliest days of 
statehood."44  The court cited an 1896 decision in which it held that "whether the 

instruction in question was rightfully or wrongfully given, it was binding and 

conclusive upon the jury, and constitutes upon this hearing the law of the case 
 ... ."45 Accordingly, the Hickman court observed that the question is whether 

       38 Id. at 100-101. 

       39 Id. at 101.

       4 Id. at 100-101. 

       41 Id. at 101.

       42 Id.

       43 State v. Hickman, 84 Wn. App. 646, 929 P.2d 1155 (1997).

       44 Hickman, 135 Wn.2d at 101.

       45 Id. at 102 n.2.

                                              12 

No. 66534-1-I/13

there is "sufficient evidence to sustain the verdict under the instructions of the 
court?"46

       Applying these principles, the Hickman court examined the sufficiency of 

the evidence of the additional element -- "[t]hat the act occurred in Snohomish 
County, Washington" -- and determined the evidence was insufficient.47 Despite 

the fact that venue is not an element of the crime of insurance fraud that the 

State must generally prove, Hickman held that venue became the law of the 

case that the State was required to prove because it failed to object to the 
instruction.48 Because there was insufficient evidence of the added element, the 

court reversed and dismissed Hickman's conviction.49  

       The holding of Garcia v. Brulotte5 demonstrates that the law of the case 

doctrine is not limited to criminal cases.  In Garcia, there was a lack of 

agreement among the jurors on the amount of damages and percentage of 
plaintiff's negligence.51  "[Ten] jurors agreed on the amount of damages, and 10 

jurors agreed on the percentage of plaintiff's negligence, but each was a 

       46 Id at 103.

       47 Id. at 105-06.

       48 Id. at 102 (citing State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 
(1995)).

       49 Id. at 106.

       5 94 Wn.2d 794, 620 P.2d 99 (1980).

       51 Id. at 796.

                                              13 

No. 66534-1-I/14

different set of 10."52  Nevertheless, because the verdict was consistent with the 

court's jury instructions, the supreme court held that the verdict was consistent 
with the law of the case.53  In doing so, the supreme court acknowledged that the 

trial court's verdict instruction might be improper, stating that "[i]n the appropriate 

case the issues raised by an interpretation of the statute, court rules, and 

Washington precedent will be necessary to determine if the court's verdict 
instruction here was correct . . . ."54 But in Garcia, the law of the case prevented 

review of that legal question. 

       Here, the court and counsel for the parties extensively discussed whether 

a duty of care instruction should be given to the jury.  Near the end of this 

discussion, and prior to counsel stating their exceptions, the following exchange

occurred:

              COURT:  So the way I'm going to word it, unless someone 
       has anything you want to say is, "A city police department has to 
       exercise ordinary care . . . in the service and enforcement of 
       court orders," period, because that's really all we are talking 
       about. 

              MR. CHRISTIE: For the way you are presenting the case, I 
       think that's appropriate.  I will take exception for other 
       reasons.[55]

       Following this exchange, the court assembled its final set of instructions.  

Instruction No. 12 stated:

       52 Id.

       53 Id. at 797.

       54 Id.

       55 Report of Proceedings (Dec. 20, 2010) at 73-74 (emphasis added). 

                                              14 

No. 66534-1-I/15

       A city police department has a duty to exercise ordinary care in the 
       service and enforcement of court orders.[56]

       The parties then stated their respective exceptions to the court's 

instructions to the jury:

       MR. CHRISTIE: . . . [W]e would take exception to the Court giving 
       . . . instruction 12. . . .  [I]nstruction 12 is a statement of the City's 
       duty to exercise ordinary care for the reasons set forth before.  
       Given that we are talking about a failure to enforce exception, we 
       think it should be done in the manner that we have proposed by 
       instructing on the elements and then asking specific questions.[57]

       Whether the City's exception to Instruction 12 complies with the 

requirements of CR 51(f) is debatable.  That court rule states: 

       Objections to Instruction. Before instructing the jury, the court shall 
       supply counsel with copies of its proposed instructions which shall 
       be numbered.  Counsel shall then be afforded an opportunity in the 
       absence of the jury to make objections to the giving of any 
       instruction and to the refusal to give a requested instruction.  The 
       objector shall state distinctly the matter to which he objects 
       and the grounds of his objection, specifying the number, 
       paragraph or particular part of the instruction to be given or 
       refused and to which objection is made.

It is unclear from this record whether the City's objection is anything more than 

an objection to the wording of the instruction, as there is no further specific 

explanation here of the basis of any substantive concerns of the City.  

       We acknowledge that the City's position below and on appeal has been 

that this case should have been dismissed without reaching the stages of 

crafting and giving instructions to the jury.  But the case did result in a trial, and 

in instructions to the jury.  Our reading of the City's only exception to Instruction 

       56 Clerk's Papers at 2179. 

       57 Report of Proceedings (Dec. 20, 2010) at 80-81. 

                                              15 

No. 66534-1-I/16

12 is that it objected to the wording only, and not to its substance. 

       In any event, the City neither assigned error to this instruction on appeal 

nor otherwise argues on appeal that giving it was improper. In fact, the City 

states in its Reply Brief that its failure to designate:

       Jury Instruction 12 . . . is immaterial.  Because the trial court erred 
       in ruling that the City owed [the] plaintiffs a duty of care to take 
       enforcement action and protect Ms. Roznowski from harm, it was 
       erroneous to give any instructions to a jury.  The case should have 
       been dismissed as a matter of law and never reached the 
       instruction stage, the central argument made on summary 
       judgment, on reconsideration, and at the close of plaintiffs' case in 
       chief.[58]

       We disagree with the City's view, as expressed in this briefing.  On 

appeal, the City does not challenge either the substance or the wording of the 

instruction in any way.  It plainly states that it is unnecessary to do so.  Had the 

City made a substantive objection to Instruction 12 at trial, it could have said so 

on appeal. It did not.

       Instruction 12 is now the law of the case for the City's duty to exercise 

ordinary care in the service and enforcement of the protection order that is at 

issue in this case.  As we read the record, and in the absence of argument on 

appeal, the City did not object to the substance of the instruction. It only 

objected to the wording of the instruction. In any event, any claim to the contrary 

was abandoned by the City's failure to challenge the instruction on appeal.  

       Because this instruction is now the law of the case, the only remaining 

question is whether there was sufficient evidence to support the jury verdict.  We 

       58 Reply Brief of Appellant City of Federal Way at 4 n.2.

                                              16 

No. 66534-1-I/17

hold that there was sufficient evidence for a jury to find that the City breached 

the duty stated in this instruction. Whether Instruction 12 is a legally correct 

statement of the duty owed by a City police department, an instruction that can 

or should be given in future cases, is a question that we do not decide in this 

case. 
       We review jury verdicts under a sufficiency of the evidence standard.59

"The record must contain a sufficient quantity of evidence to persuade a rational, 
fair-minded person of the truth of the premise in question."6 A party challenging 

the sufficiency of the evidence admits the truth of the opposing party's evidence 
and all inferences that can be reasonably drawn therefrom.61 Such a challenge 

requires that the "evidence be interpreted most strongly against the moving party 
and in the light most favorable to the party against whom the motion is made."62

       Here, there was sufficient evidence for the jury to find that Officer 

Hensing, as an agent of the City, breached a duty by failing to exercise ordinary 

care in the enforcement of the court order he served on Kim.  He failed to read 

the LEIS Roznowski provided that was designed to alert law enforcement of the 

situation to be faced when serving Kim with the protection order.  That 

information included the fact that Kim was to be served at Roznowski's

       59 Winbun v. Moore, 143 Wn.2d 206, 213, 18 P.3d 576 (2001).

       6 Canron, Inc. v. Fed. Ins. Co., 82 Wn. App. 480, 486, 918 P.2d 937 
(1996) (citing Bering v. Share, 106 Wn.2d 212, 220, 721 P.2d 918 (1986)). 

       61 Holland v. Columbia Irr. Dist., 75 Wn.2d 302, 304, 450 P.2d 488 (1969).

       62 Id. (citations omitted). 

                                              17 

No. 66534-1-I/18

residence.  Moreover, it expressly stated that an interpreter who spoke Korean 

would be needed to ensure Kim understood the provisions of the protection 

order. The LEIS clearly stated under its "Hazard Information" section that Kim's 

history included assault.  Finally, the LEIS also provided additional information 

that indicated the domestic relationship of Kim and Roznowski and that he was 

"likely to react violently when served."

       The temporary protection order also contained additional information that 

Officer Hensing failed to read.  Specifically, the order restrained Kim "from 

making any attempts to contact [Roznowski]" and further restrained him from 

"entering or being within 500 feet of [Roznowski's] residence."  Despite these 

express directives, both of which Kim violated upon being served, Officer 

Hensing did nothing to enforce them.  Regardless of whether enforcement would 

have entailed either staying until Kim left Roznowski's residence or arresting him 

if he failed to do so, Officer Hensing failed to enforce the express provisions of 

the superior court's order that were intended to protect Roznowski from harm.

       There was also expert testimony that the point of separation in a domestic 

situation could escalate to violence where an alleged abuser is separated from 

an alleged victim by way of a court order. That evidence supports what 

happened in this case: Once Kim understood that he was to leave Roznowski's

residence and have no further contact with her, his behavior escalated into 

deadly violence. 

       We conclude that this evidence was sufficient to persuade a rational, fair-

                                              18 

No. 66534-1-I/19

minded juror that the City breached its duty to Roznowski by failing to enforce 

the order that Officer Hensing served on Kim.  This supports the jury verdict to 

the extent of liability and damages in favor of Roznowski's estate.

       The City maintains that it did not owe any legal duty of care and all claims 
are barred by the public duty doctrine.63 It characterizes Washburn's law of the 

case argument as a procedural red herring that is intended to distract this court 
from the merits of its appeal.64 We must disagree.

       As we have explained, the law of the case doctrine is well-established.  

The City cites to a number of cases that hold that "technical violation of the rules 

will not ordinarily bar appellate review," where the nature of the challenge is 
clear.65 But none of the cases the City cites address the failure of a party to 

object substantively to a trial court's jury instruction.  Thus, the City fails to 

advance any argument why we should not apply the law of the case doctrine 

here.  Moreover, it fails to explain why the evidence is insufficient to support the 

jury verdict on the basis of Instruction 12, which is the law of the case.  

Accordingly, we are unpersuaded by the City's arguments to the contrary.

                  DENIAL OF SUMMARY JUDGMENT MOTION

       63 Reply Brief of Appellant City of Federal Way at 9-12. 

       64 Id. at 5-6.

       65 Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 710, 592 P.2d 631 (1979); 
see also State v. Clark, 53 Wn. App. 120, 123, 765 P.2d 916 (1988) (where 
Rules on Appeal not strictly followed regarding assignments of error, if claimed 
errors are clear then review is proper); McGovern v. Smith, 59 Wn. App. 721, 
734, 801 P.2d 250 (1990) (where party fails to make proper assignment of error, 
court may still consider the merits of the challenge where its nature is clear). 

                                              19 

No. 66534-1-I/20

       The City primarily argues that the trial court erroneously denied its first

motion for summary judgment, which it based on the public duty doctrine. At the 

time of this motion, exceptions to the public duty doctrine were available theories 

of the plaintiffs.  There were then genuine issues of material fact whether such 

exceptions applied.  Because such genuine issues of material fact existed at the 

time of the City's motion for summary judgment, and because the matter 

proceeded to trial, we decline to review the denial of the motion. 

       Summary judgment shall be granted if the pleadings, depositions, 

answers to interrogatories and admissions on file, together with the affidavits, 

show that there is no genuine issue of material fact and that the moving party is 
entitled to judgment as a matter of law.66 An appellate court reviews de novo a 

grant or denial of summary judgment.67 Such an order is subject to review "if the 

parties dispute no issues of fact and the decision on summary judgment turned 
solely on a substantive issue of law."68 But as we noted in Kaplan v. 

Northwestern Mutual Life Insurance Co.,69 "'[a] summary judgment denial cannot 

be appealed following a trial if the denial was based upon a determination that 
material facts are disputed and must be resolved by the factfinder.'"7

       66 CR 56(c).

       67 Green v. Am. Pharm. Co., 136 Wn.2d 87, 94, 960 P.2d 912 (1998) 
(internal citations omitted).

       68 Univ. Vill., 106 Wn. App. at 324; Kaplan, 115 Wn. App. at 799-800.

       69 115 Wn. App. 791, 65 P.3d 16 (2003).

       7 Id. at 799-800 (quoting Brothers v. Pub. Sch. Emps. of Wash., 88 Wn. 
App. 398, 409, 945 P.2d 208 (1997) (citing Johnson v. Rothstein, 52 Wn. App. 

                                              20 

No. 66534-1-I/21

       Here, the City's first motion for summary judgment was based solely on 

the theory that the public duty doctrine barred all claims in this wrongful death 

action.  The trial court denied the motion on the basis that there were genuine 

issues of material fact for trial.

       The City sought discretionary review of the denial of summary judgment.  

A commissioner of this court denied discretionary review, stating that "the 
legislative intent and special relationship exceptions arguably apply."71 The 

ruling went on to explain why the then existing record arguably supported these 
alternative arguments.72 A panel of judges of this court denied the City's motion 

to revise that ruling.

       We may not review a denial of summary judgment following a trial if the 

denial was based upon a determination that material facts were in dispute and 

had to be resolved by the fact finder. The rule stated in Kaplan bars review of 

the denial of the City's first motion for summary judgment following the trial in 

this case.  There were material factual issues that existed at the time of the first 

motion for summary judgment.  Specifically, there were material factual issues 

whether the special relationship exception to the public duty doctrine applied to 

this case.  This is so even if we concluded that the legislative intent exception to 

this doctrine did not involve material factual issues.  There were material facts in 

dispute at the time of the first motion, facts that only a trial could resolve after 

303, 304, 759 P.2d 471 (1988))). 
       71 Commissioner's Ruling Denying Discretionary Review, Clerk's Papers 
at 751.

       72 Id. at 758-60.

                                              21 

No. 66534-1-I/22

further development of the record.

       The City argues that because its negligence was Washburn's sole 

contention, the only question before the lower court at the time of the first 

summary judgment motion was legal: whether the City owed Roznowski a duty of 
care.73  

       "In all negligence actions the plaintiff must prove the defendant owed the 
plaintiff a duty of care."74 Whether a duty is owed is a question of law.75 But 

duty arises from the facts presented.76 To determine whether a defendant owes 

a duty to the plaintiff, appellate courts have frequently reviewed whether 

sufficient evidence supports a finding that the alleged duty was owed in the 
particular circumstances of the case.77 Thus, a challenge to whether the 

defendant owes a duty to a plaintiff sometimes requires a determination whether 

facts can be proved that give rise to the alleged duty.  In such cases, the issue 

       73 Reply Brief of Appellant City of Federal Way at 7.

       74 Donaldson, 65 Wn. App. at 666.

       75 Munich v. Skagit Emergency Commc'ns Ctr., 161 Wn. App. 116, 121, 
250 P.3d 491, review granted, 172 Wn.2d 1026 (2011).

       76 Torres v. City of Anacortes, 97 Wn. App. 64, 75, 981 P.2d 891 (1999).

       77 Yankee v. APV North America, Inc., 164 Wn. App. 1, 3-10, 262 P.3d 
515 (2011) ("there is insufficient evidence to create a material issue of fact that 
APV had a duty to warn of asbestos exposure"); Borden v. City of Olympia, 113 
Wn. App. 359, 370, 53 P.3d 1020 (2002) ("These facts are sufficient to support a 
finding that the City actively participated in the 1995 project, and, if such a 
finding is made, that the City owed a duty of due care."); Moore v. Wayman, 85 
Wn. App. 710, 720-21, 723, 725-26, 934 P.2d 707 (1997) (reversing plaintiff's 
negligence verdict because evidence was insufficient to support applicability of 
special relationship, failure to enforce, and legislative intent exceptions to the 
public duty doctrine). 

                                              22 

No. 66534-1-I/23

of duty does not present a pure question of law. 

       Here, whether the City owed Roznowski a particularized duty as opposed 

to a general duty of care could not have been determined at the time of the first 

motion for summary judgment because the material facts were disputed. We 

reject the City's overly simplistic characterization that only a legal question 

existed. 

       For these reasons, we do not review the denial of the City's first summary 

judgment motion. 

            DENIAL OF MOTION FOR JUDGMENT AS A MATTER OF LAW

       The City also argues that the trial court erroneously denied its CR 50(a) 

motion at the close of Washburn's case-in-chief.  Washburn responds that we 

may not review that denial because the City failed to renew its motion, as 

provided under CR 50(b).  Nor did the City move for a new trial based on 

insufficient evidence.  We agree with Washburn.

       The Federal Rules of Civil Procedure (FRCP), on which the state 

Superior Court Civil Rules are modeled, allow a party to challenge the 

sufficiency of the evidence prior to the submission of the case to the jury under 

FRCP 50(a).  Such a motion may be renewed after the verdict and entry of 
judgment under FRCP 50(b).78  

       In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.,79 the United States 

Supreme Court addressed the implications of a party's failure to move 

       78 FRCP 50(a) and (b).

       79 546 U.S. 394, 126 S. Ct. 980, 163 L. Ed. 2d 974 (2006).

                                              23 

No. 66534-1-I/24

postverdict under FRCP 50(b) after denial of an initial FRCP 50(a) motion.  The 

Court noted that "[i]n the absence of such a motion," an "appellate court [is]

without power to direct the District Court to enter a judgment contrary to the one 
it had permitted to stand."8 The Court cited a 1947 case in support of this 

proposition.81 According to the Court, a postverdict motion is necessary 

because:

       [d]etermination of whether a new trial should be granted or a 
       judgment entered under Rule 50(b) calls for the judgment in the 
       first instance of the judge who saw and heard the witnesses and 
       has the feel of the case which no appellate printed transcript can 
       impart. Moreover, the requirement of a timely application for 
       judgment after verdict is not an idle motion because it is . . . an 
       essential part of the rule, firmly grounded in principles of 
       fairness.[82]

       In Ortiz v. Jordan,83 the United States Supreme Court recently reiterated

its holding in Unitherm.84 There, the Court noted that "although purporting to 

review the District Court's denial of the . . . pretrial summary-judgment motion, 

several times [the Court of Appeals] pointed to evidence presented only at the 

       8 Id. at 400-01 (quoting Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 
218, 67 S. Ct. 752, 91 L. Ed. 849 (1947); Globe Liquor Co. v. San Roman, 332 
U.S. 571, 68 S. Ct. 246, 92 L. Ed. 177 (1948)). 

       81 Id.

       82 Id. at 401 (internal quotation marks and citations omitted) (alteration in 
original). 

       83 __ U.S. __, 131 S. Ct. 884, 178 L. Ed. 2d 703 (2011).

       84 Id. at 892.

                                              24 

No. 66534-1-I/25

trial stage of the proceedings."85 According to the Supreme Court, "[o]nce the 

case proceeds to trial, the full record developed in court supersedes the record 
existing at the time of the summary judgment motion."86

       But the fatal flaw, according to the Supreme Court, was that the Ortiz

appellants failed to renew their motion, as FRCP 50(b) specifies.  This failure 

"left the appellate forum with no warrant to reject the appraisal of the evidence 

by 'the judge who saw and heard the witnesses and ha[d] the feel of the case 
which no appellate printed transcript can impart.'"87

       When a Washington Court Rule is substantially similar to a present 

Federal Rule of Civil Procedure, we may look to federal decisions interpreting 
this rule for guidance.88 We do so here.

       The language of FRCP 50(b) is virtually identical to CR 50(b).89  Karl 

       85 Id. at 889.

       86 Id.

       87 Id. (quoting Cone, 330 U.S. at 216) (alteration in the original).

       88 Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 218-19, 829 P.2d 1099 
(1992) (citing In re Lasky, 54 Wn. App. 841, 851, 776 P.2d 695 (1989); American 
Discount Corp. v. Saratoga West, Inc., 81 Wn.2d 34, 37, 499 P.2d 869 (1972)).  

       89 FRCP 50(b) states: 

       Renewing the Motion After Trial; Alternative Motion for a New 
       Trial.  If the court does not grant a motion for judgment as a matter 
       of law made under Rule 50(a), the court is considered to have 
       submitted the action to the jury subject to the court's later deciding 
       the legal questions raised by the motion. No later than 28 days 
       after the entry of judgment -- or if the motion addresses a jury issue 
       not decided by a verdict, no later than 28 days after the jury was 
       discharged -- the movant may file a renewed motion for judgment 
       as a matter of law and may include an alternative or joint request 

                                              25 

No. 66534-1-I/26

Tegland states the necessity for either renewing a CR 50(a) motion or moving 

for a new trial as a foundation for an appeal:

       Foundation for appeal. A party may not simply move for 
       judgment as a matter of law before the case is submitted to the jury 
       pursuant to CR 50(a), and then (if the motion is denied) appeal 
       from the final judgment on the basis of insufficient evidence.  In 
       order to lay a foundation for appeal, the party must first renew its 
       motion for judgment as a matter of law pursuant to CR 50(b) or, in 
       the alternative, move for a new trial based upon insufficient 
       evidence.  This requirement is based upon the belief that in the 
       post-verdict context (CR 50(b)), the trial court should make the 
       initial determination of whether the evidence was sufficient to 
       support the verdict.  The determination should not be made in the 
       for a new trial under Rule 59.  In ruling on the renewed motion, the 
       court may:

       (1) allow judgment on the verdict, if the jury returned a verdict; 

       (2) order a new trial; or

       (3) direct the entry of judgment as a matter of law. 

       CR 50(b) states:

       Renewing Motion for Judgment After Trial; Alternative Motion 
       for New Trial.  If, for any reason, the court does not grant a motion 
       for judgment as a matter of law made at the close of all the 
       evidence, the court is considered to have submitted the action to 
       the jury subject to the court's later deciding the legal questions 
       raised by the motion.  The movant may renew its request for 
       judgment as a matter of law by filing a motion no later than 10 days 
       after entry of judgment -- and may alternatively request a new trial 
       or join a motion for a new trial under rule 59. In ruling on a 
       renewed motion, the court may: 

       (1) If a verdict was returned: 

       (A) allow the judgment to stand. 

       (B) order a new trial, or 

       (C) direct entry of judgment as a matter of law . . . .

                                              26 

No. 66534-1-I/27

       first instance by an appellate court.[9]

       Tegland also cites to Unitherm and notes that, in its analysis of FRCP 50, 

the Supreme Court had interpreted language virtually identical to the language 

of CR 50.  Thus, because of the similarity of CR 50(b) and FRCP 50(b), the 

rationale of the Supreme Court's holding in Unitherm also applies to CR 50. 

       Here, the City neither renewed its CR 50(a) motion pursuant to CR 50(b) 

nor moved for a new trial.  The failure to do so is fatal to its request that we 

review the trial court's denial of the City's CR 50(a) motion at the close of 

Washburn's case-in-chief.

       The City makes several arguments why we should not apply the federal 

construction of FRCP 50 to CR 50.  They are not persuasive.

       First, the City argues that adoption of the Unitherm rule would be an 

extremely harsh penalty because it has never before been applied in 

Washington.  But the Supreme Court's Unitherm decision was issued in 2006, 

prior to the incidents at issue here.  Given the accepted principle that we may 

look to federal decisions interpreting federal rules that are substantially similar to 
our state's rules,91 the City's argument is not persuasive.  Additionally, that same 

argument would apply equally to any adoption of a construction of a similarly 

worded federal rule when construing our state rules of civil procedure.  We are 

unaware of any case that has taken that position, and the City fails to cite any 

       9 14A Karl B. Tegland, Washington Practice: Rules Practice CR 50 
author's cmts. at 36 (5th ed. 2011). 

       91 Bryant, 119 Wn.2d at 218-19 (internal citations omitted).

                                              27 

No. 66534-1-I/28

authority in support of this argument.92

       Second, the City attempts to distinguish the federal rule on the basis that, 
in contrast to Unitherm, sufficiency of factual evidence is not at issue here.93

Rather, the City claims the question before us is "the sufficiency of the evidence 

with respect to a legal issue: whether the City owed the plaintiffs any duty of 
care."94 This claimed distinction is not material.  

       We explained earlier in this opinion that Instruction 12 established the law 

of the case regarding the City's duty.  Thus, the question is whether there was 

sufficient evidence given the duty definition established by Instruction 12.  Here, 

as we also explained earlier in this opinion, the evidence is sufficient to support 

the verdict.  Accordingly, we reject this argument.

                                     NEW TRIAL

       Finally, the City argues that the trial court abused its discretion when it 

granted Washburn's motion for a new trial on damages. We disagree. 

       Determination of the amount of damages is within the province of the 
jury.95 But on review of a trial court's grant of a motion for a new trial based on 

inadequate damages, reversal is only warranted "where the trial court abuses its 

       92 See State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) 
(holding that appellate courts will not review an issue unsupported by authority 
or persuasive argument). 

       93 Unitherm, 546 U.S. at 403. 

       94 Reply Brief of Appellant City of Federal Way at 8.  

       95 Palmer v. Jensen, 132 Wn.2d 193,197, 937 P.2d 597 (1997).

                                              28 

No. 66534-1-I/29

discretion."96 Further "[a] much stronger showing of abuse of discretion will be 

required to set aside an order granting a new trial than an order denying one 
because the denial of a new trial 'concludes [the parties'] rights.'"97  

       The supreme court's analysis in Palmer v. Jensen98 controls here.  There, 

Jensen argued that Palmer's special damages were still a matter of legitimate 

dispute because the jury could have concluded some of Palmer's treatment was 
unnecessary.99 But the defense presented no evidence to call the treatment into 

question.1 The supreme court held that, because the "uncontroverted evidence 

at trial established that all of Palmer's medical treatment was related to the 

accident, was necessary, and was reasonable," a new trial should be granted on 
the issue of damages only.101

       Here, the City did not dispute the evidence supporting the close 

relationship between Roznowski and her daughters that constitutes the 

underpinning of their claims as individuals.  Likewise, the City did not dispute 

that they suffered pain and suffering as a result of her death.  

       Furthermore, the special verdict form read "Was Defendant City of 

       96 Id. (citing Wooldridge v. Woolett, 96 Wn.2d 659, 668, 638 P.2d 566 
(1981)).

       97 Id. at 197 (quoting Baxter v. Greyhound Corp., 65 Wn.2d 421, 437, 397 
P.2d 857 (1964)).

       98 132 Wn.2d 193, 937 P.2d 597 (1997).

       99 Id. at 199.

       1 Id.

       101 Id.

                                              29 

No. 66534-1-I/30

Federal Way's negligence a proximate cause of injury and damage to the 
plaintiffs?" The jury responded "yes."102 Thus, the jury determined that the 

City's negligence was a proximate cause of injury and damages to all three 

plaintiffs, not just the estate.  

       The City argues that the jury's decision to award nothing to Roznowski's

daughters merely indicates that the jury "determined that Ms. Loh and Ms. 

Washburn suffered general damages all caused by Paul Kim murdering their 

mother, distinct from Ms. Roznowski's damages flowing from the 'foreseeable' 
assault."103 However, the supreme court dismissed a similar argument in 

Palmer.  The difficulty where a defendant argues that the jury "could have 

concluded" that some damages were not warranted, "'is that, carried to its logical 

conclusion, there never could be an inadequate verdict, because the conclusive 

answer would always be that the jury did not have to believe the witnesses who 
testified as to damages, even though there was no contradiction or dispute.'"104  

The undisputed evidence in this case of the daughters' relationship with their 

mother, and the determination that the City's negligence was a proximate cause 

of injury and damages to all plaintiffs, together support the trial court's decision 

to grant a new trial for damages.

       The trial court did not abuse its discretion by granting a new trial on 

       102 Clerk's Papers at 2093 (emphasis added). 

       103 Brief of Appellants at 49.

       104 Palmer, 132 Wn.2d at 200 (quoting Ide v. Stoltenow, 47 Wn.2d 847, 
851, 289 P.2d 1007 (1955)). 

                                              30 

No. 66534-1-I/31

damages for Washburn. 

                         OTHER CLAIMS AND DEFENSES

        Washburn argues that we should affirm the judgment on the jury verdict 

in favor of Roznowski on the basis of the duty articulated in Restatement 
(Second) of Torts § 302B that this court applied in Robb v. City of Seattle105 and 

other cases.106 Washburn also argues that the public duty doctrine does not bar 

the claims in this action because the case law's failure to enforce, legislative 

intent, and special relationship exceptions to that doctrine apply to this case.

       The City claims that Robb is inapplicable here.  The City also claims that 

none of the case law exceptions to the public duty doctrine apply to this case.  

       Because we affirm on the basis of the law of the case doctrine and 

decline to review the denials of the City's first motion for summary judgment and 

the CR 50(a) motion, we decline to reach these respective arguments of the 

parties.  

       We affirm the judgment on the jury verdict, subject to the trial court's grant 

of a new trial on damages for Roznowski's daughters, which we also affirm.

       105 159 Wn. App. 133, 144, 245 P.3d 242 (2010).

       106 Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 197-99, 15 
P.3d 1283 (2001); Parrilla v. King County, 138 Wn. App. 427, 435-39, 157 P.3d 
879 (2007). 

                                              31 

No. 66534-1-I/32

WE CONCUR:

                                              32