You Be the Judge: Rotten Luck

A tragic accident after a party leads to a lawsuit.

A judge's gavel on a pile of law books.
Billion Photos / Shutterstock

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In October 2012, Kimberly Gerlach went to a birthday party with her boyfriend Nathan Miller and their friends, Brodie and Colin Liddell. After the party, they all went to a bar for more drinks. When the bar closed for the night, Gerlach and Brodie made their way back to Miller’s second-story unit at The Cove Apartments, while Miller and Colin went to a convenience store. As Gerlach headed up to her boyfriend’s apartment, Brodie stayed outside to smoke. While he was smoking, Brodie heard a sharp sound and turned to see Gerlach falling headfirst from the balcony of Miller’s apartment. She landed on the concrete steps below with the decayed balcony railing beside her.

Brodie called 911. When the paramedics arrived, Gerlach was unconscious and unresponsive. She was rushed to the hospital, where she was admitted with a traumatic brain injury, skull fractures, and cerebral hemorrhaging that required surgery. The hospital also conducted a blood test within an hour after Gerlach fell that showed her blood alcohol level was approximately 0.219.

Gerlach sued The Cove Apartments for negligently causing her injuries. While admitting she was intoxicated at the time of the injury, Gerlach argued that Cove’s failure to repair the rotted railing violated its common law duties to tenants and their guests. She also claimed the neglect violated its duties as her boyfriend’s landlord under Washington’s Residential Landlord Tenant Act (RLTA).

The circumstances leading up to the fall were never clearly established. Gerlach argued that she was leaning on the railing when it gave way, while Cove speculated Gerlach was locked out of the apartment and likely fell while trying to climb over the railing onto the balcony. But in truth, no one actually saw Gerlach fall, and Gerlach herself had no recollection of that evening.

Cove moved for dismissal of Gerlach’s RLTA negligence claims on the grounds that, as a tenant’s guest, she was not protected by the act. The trial judge rejected the motion and the case went to a jury.

At trial, Cove argued that Gerlach’s injuries were not caused by negligence but by the fact that the plaintiff was highly inebriated when she fell. The defendants cited Washington Code Section 5.40, which they explained gave Cove a complete defense to a personal injury claim when “the person injured … was [(1)] under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury … and [(2)] that such condition was a proximate cause of the injury … and [(3)] the trier of fact finds such person to have been more than 50 percent at fault.” To support its defense, Cove sought to offer into evidence Gerlach’s 0.219 blood alcohol results, as well as expert testimony about how those results would have affected Gerlach.

Gerlach moved to exclude all blood alcohol testimony, arguing that “an expert cannot testify on how an intoxicant is likely to affect an individual on any particular occasion” because, absent evidence that the intoxicant actually had that effect on the individual, such testimony would be speculative and unfairly prejudicial. The judge agreed; Gerlach had already admitted she was intoxicated, so no further evidence as to the blood test was necessary. The judge further found that any probative value of the expert’s testimony was substantially outweighed by the danger of unfair prejudice toward Gerlach.

How Would You Rule?

The jury found both parties negligently contributed to Gerlach’s injuries but assigned 93 percent of the liability to Cove, netting Gerlach $3.5 million.

Cove appealed, claiming the trial court abused its discretion by excluding evidence and testimony about Gerlach’s blood alcohol results, which would have shown Gerlach’s intoxication made her more than 50 percent at fault for her injuries. The Court of Appeals agreed and overturned the verdict, concluding that the trial court erred when the judge instructed the jury that Cove owed Gerlach a duty under the RLTA.

Gerlach appealed to the Supreme Court of the State of Washington, which reversed the Court of Appeals and upheld the trial court verdict. In its decision, the Supreme Court stated that trial court judges have considerable discretion in determining prejudicial evidence and that the judge’s decision was reasonable. As for the judge’s jury instructions related to the RLTA, the Supreme Court agreed that the trial judge may have erred with regard to the tenant’s rights, but concluded that the error did not justify a new trial because the verdict remained valid as to her common law negligence claim.

Gerlach v. The Cove Apartments LLC, 2019

This article is featured in the January/February 2021 issue of The Saturday Evening Post. Subscribe to the magazine for more art, inspiring stories, fiction, humor, and features from our archives.

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  1. Normally with this feature I’m able to come to a reasonably sure, clear-cut decision. In this case it’s more difficult Joan, just due to the to the horrifying circumstances in the first place. I’m shocked Ms. Gerlach even survived the terrible fall, much less recovered to whatever extent she did.

    To try to be decisive while feeling indecisive, I’ll have to go with Supreme Court’s final ruling. The whole thing is indeed rotten luck, to say the least.


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