Degree of Contributory Negligence

Posted Tuesday, November 15, 2016 by Ed Harper

Determining the Degree of Contributory Negligence.

Washington Pattern Instruction (WPI) 11.07 states the following: “If you find contributory negligence, you must determine the degree of negligence, expressed as a percentage, attributable to the person claiming injury or damage. The court will furnish you a special verdict form for this purpose. Your answers to the questions in the special verdict from will furnish the basis by which the court will apportion damages, if any.” WPI 11.07.

The case of Keller v. City of Spokane, 146 Wn.2d 237 (2002) points out the problem with this issue and the interplay with the Defendant’s responsibility to be free from negligent conduct as well. In Keller, Casey Keller was riding his motorcycle up to and into the intersection of Freya and Wellesley in Spokane. Some estimates had him going as fast as 80 mph. Defendant Balinski, drove his car into the intersection after stopping and looking both ways. Keller’s motorcycle struck Balinski’s car at a high rate of speed, causing serious injury to Casey Keller. Keller’s attorney claimed the city was negligent as he alleged the intersection was unsafe for not having this be a four-way stop. Evidence supported these claims.

The City, in short argued among other things, the intersection was safe for ordinary travel. A jury instruction was utilized at the trial court which states “A city has a duty to exercise ordinary care in the signing and maintaining of its public streets to keep them in a condition that is reasonably safe for ordinary travel by persons using them in a proper manner and exercising ordinary care for their own safety.” The instruction was incorrect in stating there was a limited duty – a duty only to those who are not acting in a proper manner, and exercising ordinary care.

“In an action based on fault seeking damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” Keller, at 243-44. Thus, it remains a question of percentage, and not a complete bar to the claim if the plaintiff was also negligent.

Similarly, in Lowman v Wilbur, 178 Wn.2d 165 (2013), quoted from Keller, regarding the essence of this idea - that even potentially negligent plaintiffs, can recovery for their injuries. A duty exists on the part of the defendant and the respective causes of the injury must be ascertained together. “A municipality owes a duty to all persons, whether negligent or fault-free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.” In Lowman, the court pointed out “Whatever the reasons for a car’s departure from a roadway, as a matter of policy we reject the notion that a negligently placed utility pole cannot be the legal cause of resulting injury.”

We touched on this topic of reasonably safe designed roads on an earlier blog on 9/15/16.

(http://edharperlaw.com/Blog/2016/09/Reasonably-Safe-Roads-for-Ordin)

Therefore, the court articulated the present Washington Pattern Instruction – which allows the fault of the defendant to be determined (breach of a duty) separate and apart from any alleged contributory negligence on the part of the plaintiff.

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