Intoxication of Person Injured or Killed - Defense

Posted Monday, January 16, 2017 by Ed Harper

Intoxication of Person Injured or Killed – Defense

WPI 16.03 states the following: “It is a defense to an action for damages for personal injuries/wrongful death that the person injured/person killed was then under the influence of alcohol or any drug, that this condition was the proximate cause of the injury/death, and that the person injured/person killed was more than 50% at fault.

“This defense does not apply, however, in an action against the driver of a motor vehicle if you find that:

  1. The driver was then under the influence of alcohol or any drug;
  2. Such condition of the driver was a proximate cause of the injury/death;
  3. The person injured/person killed was also under the influence of alcohol or any drug; and
  4. Such condition of the person injured/person killed was not a proximate cause of the occurrence causing the injury and/or death.” (WPI 16.03)

The idea of this jury instruction is to raise the defense of intoxication on the part of the person injured and/or killed. The reason seems to be obvious, and in the Washington State Legislature, in 1986, under the guise of Tort Reform this rule was instituted. The state legislature was trying to prevent those that were intoxicated from being able to recover for injuries while so intoxicated.

A few short years later, (a case leading to the exception listed in the second part of the instruction), the courts ruled upon a case entitled Geschwind v. Flanagan, 121 Wn.2d 833, 850 P.2d 1061 (1993).

In Geschwind, Mr. Geschwind was severely injured in an auto accident and a claim was raised. He had been a passenger in a truck driven by Timothy Flanagan. Both had become intoxicated prior to the auto accident wherein defendant Flanagan appeared to be solely at fault for causing his vehicle to slam into a telephone pole.

A jury found Mr. Geschwind 70% at fault for his injuries, even though he was asleep when Flanagan went off the road causing his truck to slam into the telephone pole killing himself and injuring Geschwind. An uproar ensued regarding the travesty of justice when Geschwind was prevented from recovering. Thus the law enacted by the legislature allows for the exception to the general rule, if the above mentioned conditions have been satisfied.

So in summary, this defense is available to those who have been sued when the person who claims injury and/or death is intoxicated.

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