Assumption of Risk - The Basics

Posted Monday, February 13, 2017 by Ed Harper

Assumption of Risk – The Basics

Washington pattern instruction 13.00 is an introduction to the defense of Assumption of Risk. This defense utilized by many defendants to counter a personal injury claim. In essence, the defendant blames the plaintiff for their part in their personal injury based on the Plaintiff knowing of a certain risk and voluntarily encountering that risk.

The instruction WPI 13.00 regarding Assumption of Risk is an instruction compilation of several various aspects in the law and it has been quite problematic as a result. In short, the Washington Supreme Court has followed the 4 classifications set forth in Prosser and Keaton on Torts Sec. 68 (5th edition 1984) which illuminates four categories of this theory:

1: Express assumption of the risk2: Implied primary assumption of risk 3: Implied reasonable assumption of risk4: Implied unreasonable assumption of risk.

In the State of Washington, numbers 3 and 4 have been subsumed by contributory negligence with the adoption of comparative fault in 1986.

The case of Klein v. Warner, 98 Wn.2d 316, 650 P2d 94 (1982) highlights one element of Assumption of Risk the defendant has to prove in order to succeed with this defense. The defendant has to prove the plaintiff had knowledge that the risk was present. This leads to the defendant proving the plaintiff’s choice would be free and voluntary.

In Klein, Norman Klein was one of three injured plaintiffs who fell 25-30 feet onto frozen dirt, concrete and pipes because the 24-foot aluminum scaffolding plank on which they were standing collapsed. Klein at 317. The plaintiffs sued the manufacturer of the aluminum scaffolding plank. Apparently there was a stress fracture in the aluminum which presumably led to the collapse of the planking. Testimony indicated that the stress fractures would’ve been difficult if not impossible to see by visual examination. When the trial was held the court instructed the jury as to assumption of risk as a damage – reducing factor, over the respondent’s objections. Klein at 318. The jury reduced plaintiff’s verdict by 75% due to their assuming the risk and the court reduced the damages accordingly. Subsequently, the court also denied plaintiff’s motion for judgment notwithstanding the verdict requesting the court to reinstate the entire verdict.

The appellate court reversed the trial court verdict based on the meritorious factor that “there was no substantial evidence to support the finding that respondents had assumed any of the risk of their injuries.” Klein at 319

The court articulated that “assumption of risk is a damage – reducing factor when there is proof that plaintiff voluntarily and unreasonably proceeded to encounter a known danger.” (Cites omitted.)

The court further stated the evidence must show the respondents knew of the specific defect causing their injuries before the assumption of risk doctrine applies. Klein at 319. In this case as the plaintiff had no knowledge of the specific defect which led to his injuries. The court stated he could not have assumed the risk caused by the defect.

Furthermore, the respondents here may have known that some scaffolding plank may have been defective, but there was admittedly no proof that the plaintiff knew this particular plank was defective. Klein at 320. The court further stated that merely because of the carpenters expertise in their craft and the fact that they knew to inspect the items that they would be relying upon, the scaffolding.

This did not lead the court to believe that they had requisite knowledge in order to allow this instruction to be provided.The court reinstated the entire verdict for the plaintiff.

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