italicized portion instruction in Washington

2006But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. [5] See State v. Stein, 144 Wash.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wash.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wash.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve th

2005But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. 5 See State v. Stein, 144 Wn.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wn.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve the State

2006But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. [5] See State v. Stein, 144 Wash.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wash.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wash.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve th

2005But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. 5 See State v. Stein, 144 Wn.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wn.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve the State

2006But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. [5] See State v. Stein, 144 Wash.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wash.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wash.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve th

2005But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. 5 See State v. Stein, 144 Wn.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wn.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve the State

2006But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. [5] See State v. Stein, 144 Wash.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wash.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wash.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve th

2005But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. 5 See State v. Stein, 144 Wn.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wn.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve the State

2006But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. [5] See State v. Stein, 144 Wash.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wash.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wash.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve th

2006But, given the conflicting testimony on the knowledge element, if he can show that this alleged error relieved the State of its burden of proving the knowledge element by allowing the jury to assume that an essential element need not be proven, then this error is of constitutional magnitude, which we will review despite his failure to object. [5] See State v. Stein, 144 Wash.2d 236, 241 , 27 P.3d 184 (2001) (citing State v. Smith, 131 Wash.2d 258, 263 , 930 P.2d 917 (1997)); State v. Deal, 128 Wash.2d 693, 699 , 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve th

1990(Italics ours.) The italicized portion of this instruction follows verbatim revised WPIC 10.02 which was drafted in response to State v. Shipp, 93 Wn.2d 510 , 610 P.2d 1322 (1980).

1990(Italics ours.) The italicized portion of this instruction follows verbatim revised WPIC 10.02 which was drafted in response to State v. Shipp, 93 Wn.2d 510 , 610 P.2d 1322 (1980).

2012Such dilatoriness "refers to unacceptable litigation practices other than mere inaction." Wallace v. Evans, 131 Wash.2d 572, 577 , 934 P.2d 662 (1997). ¶ 7 The sole question is whether CR 41(b)(1) applies in this case to limit the trial court's inherent discretion to dismiss.

2012There is only one exception to the mandatory application of the italicized portion of the rule: "Where dilatoriness of a type not described by CR 41(b)(1) is involved, a trial court's inherent discretion to dismiss an action for want of prosecution remains." Thorp Meats, 110 Wash.2d at 169 , 750 P.2d 1251 (citing Gott v. Woody, 11 Wash.App. 504, 508 , 524 P.2d 452 (1974)).

2012There is only one exception to the mandatory application of the italicized portion of the rule: "Where dilatoriness of a type not described by CR 41(b)(1) is involved, a trial court's inherent discretion to dismiss an action for want of prosecution remains." Thorp Meats, 110 Wash.2d at 169 , 750 P.2d 1251 (citing Gott v. Woody, 11 Wash.App. 504, 508 , 524 P.2d 452 (1974)).

2012There is only one exception to the mandatory application of the italicized portion of the rule: "Where dilatoriness of a type not described by CR 41(b)(1) is involved, a trial court's inherent discretion to dismiss an action for want of prosecution remains." Thorp Meats, 110 Wash.2d at 169 , 750 P.2d 1251 (citing Gott v. Woody, 11 Wash.App. 504, 508 , 524 P.2d 452 (1974)).

2012There is only one exception to the mandatory application of the italicized portion of the rule: "Where dilatoriness of a type not described by CR 41(b)(1) is involved, a trial court's inherent discretion to dismiss an action for want of prosecution remains." Thorp Meats, 110 Wash.2d at 169 , 750 P.2d 1251 (citing Gott v. Woody, 11 Wash.App. 504, 508 , 524 P.2d 452 (1974)).

2012Such dilatoriness "refers to unacceptable litigation practices other than mere inaction." Wallace v. Evans, 131 Wash.2d 572, 577 , 934 P.2d 662 (1997). ¶ 7 The sole question is whether CR 41(b)(1) applies in this case to limit the trial court's inherent discretion to dismiss.

2006Because it is the State's burden to establish invited error and mere failure to object to an instruction proposed by the other party does not establish invited error, see State v. Thomas, 150 Wash.2d 821, 844 , 83 P.3d 970 (2004), we cannot conclude that the invited error doctrine applies here. [6] A constitutional error is harmless if the reviewing court is convinced beyond a reasonable doubt that the same result would have been reached in the absence of the error.

2006Because it is the State's burden to establish invited error and mere failure to object to an instruction proposed by the other party does not establish invited error, see State v. Thomas, 150 Wash.2d 821, 844 , 83 P.3d 970 (2004), we cannot conclude that the invited error doctrine applies here. [6] A constitutional error is harmless if the reviewing court is convinced beyond a reasonable doubt that the same result would have been reached in the absence of the error.

1979(Italics ours.) Challenging the italicized portion of the instruction, the City relies upon In re Metro Seattle, 67 Wn.2d 923 , 410 P.2d 790 (1966), quoting with approval 4 J.

1979(Italics ours.) Challenging the italicized portion of the instruction, the City relies upon In re Metro Seattle, 67 Wn.2d 923 , 410 P.2d 790 (1966), quoting with approval 4 J.

1973As such, he contends, the instruction contains essentially the same inappropriate language which the court found objectionable in State v. Ring, 52 Wn.2d 423, 325 P.2d 730 (1958). 2 While the contested instruction could have been more aptly worded, we do not find in it the objectionable implication that the juror may consent to a verdict by “surrendering his verdict to the majority.” State v. Johnson, 53 Wn.2d 666 , 335 P.2d 809 (1959).

1973As such, he contends, the instruction contains essentially the same inappropriate language which the court found objectionable in State v. Ring, 52 Wn.2d 423, 325 P.2d 730 (1958). 2 While the contested instruction could have been more aptly worded, we do not find in it the objectionable implication that the juror may consent to a verdict by “surrendering his verdict to the majority.” State v. Johnson, 53 Wn.2d 666 , 335 P.2d 809 (1959).

1973As such, he contends, the instruction contains essentially the same inappropriate language which the court found objectionable in State v. Ring, 52 Wn.2d 423, 325 P.2d 730 (1958). 2 While the contested instruction could have been more aptly worded, we do not find in it the objectionable implication that the juror may consent to a verdict by “surrendering his verdict to the majority.” State v. Johnson, 53 Wn.2d 666 , 335 P.2d 809 (1959).

1973As such, he contends, the instruction contains essentially the same inappropriate language which the court found objectionable in State v. Ring, 52 Wn.2d 423, 325 P.2d 730 (1958). 2 While the contested instruction could have been more aptly worded, we do not find in it the objectionable implication that the juror may consent to a verdict by “surrendering his verdict to the majority.” State v. Johnson, 53 Wn.2d 666 , 335 P.2d 809 (1959).

1962Atkins v. Clein, 3 Wn. (2d) 168, 100 P. (2d) 1 (1940). [7] Error is also assigned to instruction No. 13 which reads as follows: "If a physician negligently fails to inform himself as to the facts and circumstances, and injury results therefrom, then he is liable; but if having fully informed himself as to the facts and circumstances, and having brought to bear the skill and knowledge usually brought to bear by other physicians in the same community, the physician merely reaches a wrong conclusion from the assembled data, he is not liable unless, having thus incorrectly diagnosed the case, he n

1959The instruction is a correct statement of the law being expressly approved in Bennett v. King County, 188 Wash. 196 , 61 P. (2d) 1316 .

1959The instruction is a correct statement of the law being expressly approved in Bennett v. King County, 188 Wash. 196 , 61 P. (2d) 1316 .

1955Co. (1940), 3 Wn. (2d) 200, 202, 100 P. (2d) 380 , is as follows: “Where a city, acting within its general powers, contracts for improvement upon a street, and the work is done by a contractor in accordance with the plans and specifications furnished by the city, he is the agent of the city and is not liable for damages in the absence of negligence in the performance of the wo.rk.” (Italics ours.) The italicized portion of the rule makes it inapplicable to the present situation. 4, 5.