The Supreme Court is currently considering an amendment to CR 8.01(2). This section allows a party to obtain information in interrogatories as to the amount of unliquidated damages claimed by a plaintiff. The amount claimed shall not exceed the last amount stated. The amendment would essentially allow a party to amend this amount at any time before the close of evidence at trial. Once done, neither party could put into evidence any reference to the amount previously stated in interrogatories.

Everyone who is familiar with Fratzke knows the harsh result this rule can have on parties who do not comply. However, the amendment renders the rule useless. If a party can amend the amount claimed, at anytime before the close of evidence, what good does it serve to ask them before hand. The harsh result of the rule is the motive for compliance. The law is fraught with rules and penalties for not complying with those rules. This one shouldn’t be any different. I can’t help but think that if as much time and effort went into complying with the rule as went into trying to avoid it, there wouldn’t even be an issue.

The Court of Appeals recently published, Brewster v. Colgate Palmolive Company, et al., which is the latest on premises liability implicating Lanier v. Walmart. Brewster was the employee of several contractors who worked at Colgate Palmolive and Jewish Hospital. He was diagnosed with asbestosis after years of working on construction sites. He sued the defendants claiming he had contracted the disease after being exposed on their premises. The trial court ruled that Brewster’s reliance on Lanier and its burden shifting approach was misplaced. Finding no evidence of knowledge on the part of Colgate or Jewish, and thus, no duty to warn, the trial court dismissed both claims.

The court of appeals reiterated the general rule that a premises owner owes a duty to contractors to warn of hidden dangers “known” to the premises owner. This duty was not eliminated merely because the contractors may have superior knowledge regarding the existence of such dangers. Because there was no evidence that Jewish or Colgate had knowledge of the existence of asbestis, there was no duty to warn Brewster or the contractors for whom he worked. The court refused to expand the Lanier burden shifting approach to cases involving independent contractors.

The trial court raised an interesting issue regarding the “superior knowledge” of contractors, which deserves more consideration. Is a premises owner like Jewish or Colgate responsible to warn about dangers of asbestes in construction to a contractor who is engaged the business and who has superior knowledge of the likelihood of such a defect? Isn’t it reasonable to assume that a contractor would be aware of the possibility of a substance such as asbestes and take appropriate precautions. If so, why place such a duty on the premises owner? Would a warning by the owner, discharging its duty, even do any good? Interesting issues that I think will resurface. My impression is the trial court was correct in both its ruling and analysis.

I also commend the court of appeals for declining to extend Lanier. Mostly, because I do not think that Lanier has been adequately presented to or explained by the Supreme Court in typical premises liability cases. Issues regarding the application of the burden shifting approach continue. I hope the Supreme Court has the opportunity to address those issues before it decides whether to expand the ruling to other types of cases.

Vacation, uh no.

August 2, 2006

I apologize to my readers for my lack of posts the past few weeks, but I have been overwhelmed with other professional and personal responsibilities. While the lack of postings is always a source of anxiety for me, I think my obligation is to bring up to date and informative posts to my readers. Therefore, I believe nothing said is better than, well, nothing being said. Again, I thank my readers and peers for their continued comments and encouragement! It is always welcome.