Assumption of Risk – Barring of Plaintiff’s Case

Posted Thursday, February 23, 2017 by Ed Harper

Assumption of Risk – Barring of Plaintiff’s Case

Washington Pattern Instruction 13.03 is a complete defense to a plaintiff’s case if properly proved by the defendant. Assumption of risk as a defense has survived the adoption of contributory negligence and the enactment of comparative fault statutes in 1986. As stated previously, 2 parts remain: 1 - implied primary assumption of risk; and 2 – express assumption of the risk

The instruction states as follows “it is a defense to an action for personal injury or wrongful death that the person injured or person killed impliedly assumed a specific risk of harm.

A person impliedly assumes the risk of harm if that person knows of the specific risk associated with a course of conduct or an activity, understands its nature, voluntarily chooses to accept the risk by engaging in that conduct or activity, and impliedly consents to relieve the defendant of a duty of care owed to the person in relation to the specific risk.

The following is optional: [A person’s acceptance of risk is not voluntary if that person is left with no reasonable alternative course of conduct to avoid the harm or to exercise or protect a right or privilege because of the defendant’s negligence.]”

According to the comments in Washington Civil Jury Instructions, “implied primary assumption of risk applies to those situations in which a person, by voluntarily choosing to encounter a known peril, impliedly consents to relieve the defendant of the duty to reasonably plead protect against that peril.” See Prosser and Keaton on Torts, Section 68 (5th edition 1984). Recently a case involving the downing of trees arising out of the Kitsap County action illuminates this principle.

In Gleason v. Cohen, 192 Wn. App. 788, 360 8P 3rd 531, (2016) the appellate court reversed a trial court’s granting summary judgment based on the doctrine of “implied primary” assumption of risk. In Gleason the appellate court focused on the inherent risk of tree cutting as an activity and whether the plaintiff had agreed to hold the defendant not responsible for the defendant’s actions and in causing Plaintiff’s own injuries.

Plaintiff Gleason claimed the defendant Cohen in his workers engaged in additional conduct which thereby increased the risk, the inherent risk, of being injured while cutting down trees. This additional increase in the risk of being injured while cutting down trees is what the court focused on. Gleason alleges that Cohen was negligent in requesting that he cut down the particular tree that injured him because of the trees location. Gleason also alleges that Cohen’s workers were negligent in placing certain choker chains on the tree that injured him. Cohen at 800.

Defendant Cohen, according to the appellate court, had increased the risk inherent in the activity of felling trees, which resulted in the preclusion of summary judgment. As stated above Defendant Cohen had altered several items. Apparently the court considered the fact of these choker chains being set incorrectly increased the inherent risk in cutting down trees and the defendant could still allege the plaintiff’s conduct was potentially contributorily negligent. As a result, plaintiff Gleason’s claim was allowed to go forward.

In summation, the jury instruction regarding implied primary assumption of risk will not be provided to the jury if the defendant’s actions and altered the “inherent risks” in the activity which injured the plaintiff.

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