The Duty to See

Posted Tuesday, December 06, 2016 by Ed Harper

Duty of Seeing

Washington Pattern Instruction (WPI) 12.06 states the following: “Every person has a duty to see what would be seen by a person exercising ordinary care.”

This instruction falls under the category of whether a person has a responsibility or duty of care in regards to how they act. Prosser, in his seminal work on Torts discusses this issue as follows: “He or she must use such senses as he/she has to discovery what is readily apparent. He/She may be negligent in failing to look, or in failing to observe what is visible when he/she does look.” Prosser and Keeton on Torts, 5th Edition, page 182. Thus, it includes not only the ability to see, but it also focuses on the ability of one’s perception and recognition of what is there.

So, on who claims they did not see an object and that something indeed was there, had they looked carefully, should be found to have violated this requirement and a jury will be so instructed on what the law is regarding this issue.An example from the court’s interpretation of this standard is found in Humes v. Fritz, 125 Wn.App 477 (2005) which held that the trial court did not err in submitting a “duty to see” instruction under the factual circumstances presented.

This case was brought by a crane operator (Humes) who jumped from his crane operating seat when a truck driver, Joe Crowder (employed by Fritz) pulled away with his load still attached to the crane. Apparently, Crowder testified that his truck had side mirrors but blind spots existed. Crowder testified that he had difficulty seeing height in his mirror, as well as areas close to the sides of his truck. He also testified that before he started his truck, he looked back around and did not see the ladder or the cables.

Crowder, as a defendant, was asked whether he would have seen the cables if he had gotten out of his truck. He said “I don’t know. Yeah, I imagine so; Yes.”

At the end of the trial, the court gave WPI 12.06 Duty to See instruction. The plaintiff argued that Mr. Crowder had the ability to see what they were doing outside his truck. And this included the cables being still attached to the trailer. Humes, at 488.

The comment to this instruction includes a warning or caution to judges – not to overly emphasize one’s case over another’s. Here, however, the court opined the ‘duty to see’ instruction in this case did not generate a gross overweighting in favor of Humes. The jury instruction does not overemphasize Humes’ theory regarding Crowder’s ability to see from inside his truck. The instruction instead asks the jury to determine whether a truck driver exercising ordinary care would have stepped outside the truck to see whether could drive away. The use of this instruction was justified by Crowder’s testimony that he could have seen the cables if was outside the truck and that he had an obligation to make sure it was safe to proceed. Therefore, it was not error to give the “duty to see” instruction. Humes at 498.

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