Volume 69 — Washington Appellate Reports

<bold>[1] Employment — Loaned Employee — Determination — Question of</bold> <bold>Law or Fact.</bold> Whether the employee of one employer has been "loaned" to another employer is normally a question of fact. <bold>[2] Trial — Issues of Fact — Determination as a Matter of Law.</bold> A trial court is not permitted to determine a factual issue as a matter of law when there is substantial evidence in the record upon which reasonable minds could differ. <bold>[3] Employment — Loaned Employee — Determination — Consent of</bold> <bold>Employee.</bold> An employee is not "loaned" from one employer to another unless the employee is shown to have expressly or by implication, deliberately and with knowledge, consented to the transfer of services from the one employer to the other. <bold>[4] Employment — Loaned Employee — Determination — Control.</bold> For purposes of satisfying the control element of the "loaned servant" doctrine, the lending employer must have surrendered the right to control the work of the employee and the borrowing employer must have assumed the power to supervise and control the employee. <bold>[5] Trial — Instructions — Review — Considered as a Whole.</bold> The language and specificity of instructions are reviewed by examining all the instructions as a whole. <bold>[6] Trial — Instructions — Sufficiency — Test.</bold> Instructions are adequate if they permit each party to argue its theory of the case, properly inform the jury of the applicable law, and are not misleading. <bold>[7] Trial — Instructions — Proposed Instructions — Repetitive</bold> <bold>Instructions — Error.</bold> The trial court may reject proposed instructions which are repetitious or which would have to be rewritten in order to conform to the law. <bold>[8] Evidence — Review — Standard of Review.</bold> The evidentiary rulings of the trial court are reviewed under the abuse of discretion standard.<page_number>Page 118</page_number> <bold>[9] Evidence — Opinion Evidence — Lay Testimony — Test.</bold> The opinion of a nonexpert lay witness may be relevant if the opinion is (1) rationally based on the perception of the witness and (2) useful to the trier of fact in assessing the witness's testimony or determining a fact in issue. <bold>[10] Evidence — Demonstrative Evidence — Similarity to Actual</bold> <bold>Event.</bold> Once the trial court has determined that demonstrative evidence is similar enough to the actual conditions of the event at issue to be admissible, any lack of similarity affects only the weight to be accorded the evidence by the jury. <bold>[11] Trial — Comment on Evidence — What Constitutes — Guidance</bold> <bold>to Counsel.</bold> Comments by the trial court which are based on the record and the Rules of Evidence and intended to guide counsel by preventing repetitious questioning, wasted time, and testimony on a matter of which a witness has no personal knowledge are not comments on the evidence in violation of Const. art. 4, § 16. <bold>[12] Judges — Disqualification — Bias — Presumption.</bold> A trial judge is presumed to perform without bias or prejudice. <bold>[13] New Trial — Determination — Presiding Judge.</bold> The trial court is in the best position to determine whether a party is entitled to a new trial, and the nonmoving party is entitled to have that determination made by the judge who tried the case. <bold>[14] Judges — New Trial — Misconduct of Trial Judge —</bold> <bold>Disposition of Allegation of Misconduct.</bold> After denying a motion for a new trial based, in part, on an allegation of misconduct by the trial judge, the trial court should recuse itself, under the impartiality precepts of CJC Canon 3(C)(1), and submit the allegation of misconduct to another judge. <bold>[15] Courts — Rules of Court — Construction — Similar Federal</bold> <bold>Rule — In General.</bold> A court may use federal precedent when interpreting a court rule which is substantially similar to a federal court rule. <bold>[16] Pleading — Supporting Facts — Reasonable Inquiry — Breach</bold> <bold>of Duty — Court Rule — Scope — Legal Memoranda — Signature of</bold> <bold>Authorized Agent.</bold> For purposes of imposing sanctions under CR 11, an attorney is responsible for a legal memorandum signed by an authorized agent of the attorney.

<bold>[1] Criminal Law — Punishment — Restitution — Causal</bold> <bold>Relationship — Necessity.</bold> Unless otherwise agreed to by a defendant when entering a guilty plea, an order of restitution must be based on a causal relationship between the offense charged and proved by the State and the loss or damage incurred by the victim of the crime. <bold>[2] Criminal Law — Punishment — Restitution — Scope — Admission</bold> <bold>of Theft — Denial of Specific Items — Effect.</bold> A criminal defendant's general admission to taking "items" is not sufficient to support a reimbursement order for specific items which the defendant denies taking. <bold>[3] Criminal Law — Punishment — Restitution — Statutory</bold> <bold>Provisions — Construction — Legislative Intent.</bold> Restitution statutes are liberally construed in order to carry out the legislative intent that offenders pay restitution to the victims of their crimes as part of a just punishment. <bold>[4] Criminal Law — Punishment — Restitution — Scope —</bold> <bold>Embezzlement — Investigation of Loss.</bold> The cost of investigating business records is a reasonable consequence of an act of embezzlement and may be made part of an order of restitution even though it is an expense the victim is not legally obligated to incur as a direct result of the embezzlement. <bold>[5] Criminal Law — Punishment — Restitution — Amount — Proof —</bold> <bold>Specificity — Standard of Review.</bold> As long as the particular type of restitution is authorized by statute, the amount need not be proved with specific accuracy; it is reviewed under the abuse of discretion standard.