The Harper Law Blog

The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.

Negligence of spouse cannot be imputed to the other spouse

Posted Thursday, November 10, 2016 by Ed Harper

Negligence of one spouse cannot be imputed to the other spouse.Washington Pattern Instruction (WPI) 11.04.01 states the following: “Negligence, if any, of one spouse or domestic partner is not imputed or charged to the other spouse or domestic partner.” WPI 11.04.01.In the Revised Code of Washington (RCW) 4.22.020 states in essence that the contributory fault (being partially responsible) of one spouse shall not be imputed to the other spouse. The Plaintiff’s claims should not be diminished and should be allowed to recover their full damages. More specifically, “The contributory fault of one spouse shall not be imputed to the other spouse…to recover damages caused by fault resulting in death or in injury to the person or property, whether separate or community, of the spouse.”The key phrase in this statute is “shall not be imputed”. This disallows any consideration for the imputation of liability onto the fault free plaintiff. Where this comes into play is for personal injury claims such as pain and suffering, emotional distress, loss of enjoyment of life, are all considered to be separate and independent causes of action for the injured person. This has not always been the case as in the past the common law concept was that the wife’s legal identity merged with her husband. “Modernly, however, the law recognizes the separate legal identities of the spouse, and one person’s contributory negligence will not be imputed to another merely on the basis of the marital relationship.” Vasey v. Snohomish County, 44 Wn.App 83, 88 (1986). As the general rule is that the plaintiff’s action for damages should not be reduced by the negligence of third persons. Thus, this is merely an extension of the general rule, and allows a spouse to recover 100% of their independent damages. Therefore, in Vasey, the wife had settled her claim against her husband for a one-car accident wherein he had driven his car off the road. The wife’s allegation at trial was merely against the county for improper sign placement and maintenance issues. The court awarded her damages, and the county was deemed to be 20% at fault for the damages and the husband was 80% at fault. The wife in this case could recover from the county all of her damages, and her claims would not be reduced by her husband’s % of responsibility. In short, all of her separate property claims would be honored and not be reduced due to the negligence of the at-fault, negligent spouse.
Additionally, in the case of Christie v. Maxwell, 40 Wn.App. 40 (1985), even loss of consortium claims are deemed to be separate and independent in nature for the injured spouse. “Under the law in this state, Mrs. Christie is an individual with separate legal rights which arise independent of her identity as a member of the Christie martial community. Yet there would be no injury to her consortium rights without the accompanying physical injury to her spouse and the existence of the marital relationship…While we may feel that it is basically unfair to allow Mrs. Christie 100 percent recovery from Mr. Maxwell where her husband was 62.5 percent contributorily negligent, we are constrained by our interpretation of RCW 4.22.020 and the rules of statutory construction from reducing her damages 62.5 percent.” Christie, at 48.

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What if the other side blames the parent for the child's injury?

Posted Tuesday, November 08, 2016 by Ed Harper

What if the other side blames the parent for the child’s injury?

Washington Pattern Instruction 11.04 states the following: “Negligence, if any, of a parent is not imputed or charged to his or her child.” WPI 11.04.This jury instruction illuminates a problem in this country, allowing a child to recover for his or her damages if their parent was potentially partially at-fault. In the early to mid-1800’s, judges would typically bar a child’s claim due to their injury being due to any allegation of parental irresponsibility and under the legal theory of what is called imputed contributed negligence. This occurred whenever there was potential evidence from which a jury might conclude that a parent was guilty of negligence that proximately contributed to the child’s injury.
However, around the turn of the last century (1900) courts here in the State of Washington have protected claims of children by preventing a defendant from arguing “well, it really was the parents fault for not watching their child” and thus avoiding liability.

A brief review of when this arises may be helpful. Imputed is derived from the Latin term “imputare” which means to charge with. Or in other words, to impute means to lay the responsibility or blame on another. A defendant would have been able to argue the parent’s negligence was the cause of the injury, thus precluding a possible claim of injury for the youngster. If for example, while in a restaurant, a scalding hot coffee was spilled on a child when the child (a toddler for example) pulled the full cup of coffee on themselves, the court would have disallowed the child’s claim from going forward if the defendant raised the parent’s failure to adequately watch and protect their child. The restaurant, even though their server had placed the coffee allegedly too close to the toddler, would get off scot-free if they could prove even 1% of fault lay with the parents.

Additionally, another case points out why this precedent was overturned. In Gregg v. King County, 80 Wash. 196 (1914) a young boy, age 6 went with his older brother to the docks in Juanita on the shore of Lake Washington. He went on the dock, waiting for the ferry with the evening paper from Seattle to arrive. Their mother had sent them on this errand because she was not feeling well. As the boys waited, sitting on the dock, the younger boy’s hand and arm were smashed when the ferry boat arrived and slammed into the support pilings for the dock. King County, the owner of the dock, argued the child’s parents were partially at fault for their failure to supervise the young boy. The court said no. You can’t blame parental supervision, or lack thereof for this injury. It was foreseeable that children would be on the public dock. An example of this foreseeability was aided by the fact that a confectioner store (candy store) was adjacent to the ferry terminal.

The court articulated the true negligence in this case was the poor design of the ferry dock and the responsibility for the boy’s injury fell on the County. “…no act of negligence on the part of the parents of the child, whether of omission or commission, could prevent a recovery by the child, if, under the evidence and other instructions, the jury was of the opinion that the defendant was liable for the injuries sustained by the child; that the rights of the parties must be judged without regard to acts of negligence on the part of the child’s parents.” Gregg, at 203.

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Can a child be found negligent and thus contributorily negligent?

Posted Tuesday, November 01, 2016 by Ed Harper

Can a child be found negligent and thus contributorily negligent?

Can a child be found negligent and thus contributorily negligent? Yes, if they are less than 6 years old.

Washington Pattern Instruction 11.03 states the following: “A child under the age of six years is incapable of contributory negligent. Therefore, there is no issue of contributory negligence on the part of Plaintiff.” WPI 11.03.The idea of negligence is that a person who is allegedly negligent must have some ability to reason. In other words, to understand the nature of their actions, and then do something or fail to do something, which a jury could consider as negligence. A child under six does not have this ability.

“Fault includes acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability or liability on a product liability claim. The terms also include breach of warranty, unreasonable assumption of risk, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.” Price v Kitsap County, 70 Wn. App. 748, 756 (1993).

In Price v. Kitsap County, a four year old child activated an emergency stop device on a Kitsap Transit bus, causing the bus to come to a sudden stop and Carl Price was injured. The issue in regards to the youngster centered around whether a four year old child can be contributorily negligent (partially responsible) for the harm inflicted on Mr. Price.

In the lower courts, when discussing combined the percentage of liability of the young boy and the County combining together equaling 100%, with 80% being the responsibility of the four year old. The Supreme Court however held the youngster could not be capable of understanding the nature of his actions, and thus could not be found negligent. “Washington courts recognize a conclusive presumption that a child under the age of six is incapable of negligence…Furthermore a child under six is incapable of being contributorily negligence…It is undisputed that the boy, Bradley Lancaster, was under five years old on March 4, 1987.”

“Recovery will, however, be diminished in proportion to the percentage of negligence attributed to the party recovering…Under our statutory concept of ‘pure’ comparative negligence, recovery may range from the most miniscule amount to near total recovery.

“The flaw in Kitsap Transit’s argument is…A four year old…is incapable of negligence, thus incapable of fault.” * Price*, at 757.

Therefore, based on this instruction, Mr. Price could only hold the County responsible for their portion of negligence. The child and his parents could not be blamed.

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Contributory Negligence and Why It Matters

Posted Thursday, October 27, 2016 by Ed Harper

Contributory Negligence and Why It Matters

What is contributory negligence? Contributory negligence is defined in the State of Washington as “negligence on the part of a person claiming injury or damage that is a proximate cause of the injury or damage claimed.” WPI 11.01.

The essence of contributory negligence (one contributing to their own injury) is an affirmative defense raised by the defendant/respondent to a claim. “Contributory negligence does not exist in a vacuum. Such affirmative defense presupposes negligence eon the part of the defendant… In other words, contributory negligence is a matter of affirmative defense that comes into being only after plaintiff has first established defendant’s negligence and liability. Contributory negligence can exist only as a coordinate or counterpart of a defendant’s negligence.” Godfrey v. State, 84 Wn.2d 959 (1975).

The Revised Code of Washington (RCW) 4.22.010 and .020 were created in 1975 to place into law the idea to allow plaintiffs to recover based on a pure percentage of responsibility or liability. Thus, if a jury finds the defendant 90% at fault, and the plaintiff 10% at fault, the plaintiff can recover for 90% of his or her injuries or damages. In the past, under what is termed common law, a plaintiff who was even a tiny bit responsible, could not recover at all from the defendant.

“Recovery will, however, be diminished in proportion to the percentage of negligence attributed to the party recovering… Under our statutory concept of ‘pure’ comparative negligence, recovery may range from the most miniscule amount to near total recovery.

“The burden of pleading and proving the affirmative defense still rests on the defendant and the same causal connection must be shown. Nevertheless, if these matters are established by a defendant, plaintiff’s cause of action is not abolished. Only his recovery is proportionately diminished under pure comparative negligence.” Godfrey, at 965.

This alteration or updating our statutes to properly reflect the actual percentage of responsibility was a progression away from complete nullification for the plaintiff’s claims. This old way of doing things, under the common law of complete refutation of the plaintiff’s claim, seemed harsh and unjust. Additionally, it puts the burden on the defendant to prove their claim and the percentage of fault they attribute to the plaintiff’s concordant actions. Thus, allowing them to argue – we were responsible for the harm, but the plaintiff is partially responsible as well.

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Premises Liability – What is your status?

Posted Wednesday, October 26, 2016 by Ed Harper

Premises Liability - What is your status?

What’s your status?

This is a typical question for this day and age on Facebook. It also matters when it comes to law, specifically in the State of Washington, if you are going to recover from injuries sustained on another’s property it often depends on your legal status. Why were you on the particular piece of property? is a key question. Were you invited for a business reason? Or a social reason? Were you merely entering a piece of property with no intended purpose – you were just passing through and thus trespassing? And, can your status fluctuate depending on the circumstances?

As mentioned in a prior post your legal status is either: Invitee; Licensee; or Trespasser. A landowner owes the highest duty to Invitees; a lower duty is owed to Licensees; and, even less of a duty is owed to Trespassers.

The point of this blog post is to elucidate the method a court utilizes to ascertain this status. Certainly a plaintiff will want to establish their position as an invitee, or at worst a licensee. The defense, on the other hand will attempt to persuade a court that the proper status should be that of a trespasser.

The case, Egede-Nissen v. Crystal Mountain, 93 Wn. 127 (1980) sheds light on how the court will discern the correct category and most importantly, that this decision often goes to the jury as a question of fact for them to decide. In summary, the plaintiff, A. E. Egede-Nissen was injured when she fell from a chair-lift at Crystal Mountain on April 25, 1973. Ms. Egede-Nissen had ventured onto the property when the ski lift operation was closed, except for one chair lift that was operating to assist other persons on the mountain. She impulsively attempted to follow a friend onto the un-manned chair lift, and was injured as she fell from a height of approximately 30’ when she boarded the chair lift improperly.

“The major legal issue at trial was the plaintiff’s status aboard the chairlift, which in turn determined the corresponding duty of care owed by Crystal Mountain…The status aboard the chairlift turned on the resolution of a factual dispute whether Crystal Mountain had given adequate notice of the C-4 lift was closed to the public. Initially, Egede-Nissen’s status was that of a public invitee, which status she would retain until adequately warned of limits to the area of her invitation….If however, petitioner unreasonably strayed beyond the area of invitation, her status would change from that of invitee to a licensee or trespasser, with a corresponding change in the duty owed to her by Crystal Mountain.” Egede-Nissen, at 132-133.

The scope of the invitation was a question for the jury as this was a hotly contested question. “The resolution of that question was dependent upon facts to be found by the jury.” Egede-Nissen, at 136.

Therefore, the case somewhat assists in establishing that a person’s status could change and a jury often is called upon to make the ultimate decision on how far one’s liability should extend.

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