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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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Under the Influence of Alcohol or any Drug- Analysis of Bodily Substance

Posted Tuesday, January 31, 2017 by Ed Harper

Under the Influence of Alcohol or any Drug - Analysis of Bodily Substance - Intoxication Defense Statute

WPI 16.05 states the following: “If you find that, within two hours after the occurrence causing injury or death, a person had 0.08 g or more of alcohol per 200 L of breath, then the person was under the influence of alcohol.

If you find that, within two hours after the occurrence of causing injury or death, the alcohol concentration in a person’s blood was 0.08 or more, then the person was under the influence of alcohol.

If you find that, within two hours after the occurrence causing injury or death, a person had an alcohol concentration of less than 0.08 in his or her blood or less than 0.08 g of alcohol per 200 L of his or her breath, then it is evidence that may be considered with other evidence in determining whether the person was under the influence of alcohol.” (WPI 16.05)

This jury instruction is used in the following scenario: the plaintiff has been injured and/or killed and brings a claim for his or her injury or his estate brings is a claim for his or her death. The issue to be decided is whether the plaintiff within two hours prior to the injury causing event had been under the influence.

There are three options of Washington Pattern Instruction 16.05 due to various methods of analysis. The choice for which option to choose is dependent on either which form of analysis was used or if the finding was below the legal limit to be intoxicated.

This jury instruction is used via the intoxication defense under RCW 5 .40.060. The defendant attempts to use this as proof by having the injured and/or decedent’s bodily substance analyzed and thus to potentially invalidate the plaintiff’s claim.

So this can be a complete defense when raised by the defendant in proving that the plaintiff who was injured and/or killed was under the influence of alcohol.

Therefore, RCW 5.40.0 60 provides a method for proving a person was under the influence of intoxicating liquor if the standard of RCW 46.61.502 is met. The third paragraph of this instruction is based on RCW 46.61.506(1) which applies in a civil action or proceeding arising out of any acts alleged to have been committed while driving under the influence of intoxicating liquor and/or drug.

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Under the Influence of Alcohol or any Drug – Driving a Motor Vehicle

Posted Thursday, January 19, 2017 by Ed Harper

Under the Influence of Alcohol or any Drug – Driving a Motor Vehicle

WPI 16.04.01 states the following: “A driver is under the influence of alcohol or any drug if, as a result of using alcohol or any drug, the person’s ability to drive a motor vehicle is lessened in any appreciable degree.” (WPI 16.04.01)

The determination by a trial judge of whether this instruction should be given is often a confounding issue. The issue of intoxication arises often in criminal cases and the jury instruction there is WPI 92.10. It has been found in criminal cases a jury often misunderstands the word “appreciable.” Therefore, the notes indicate it may assist the jury to define the word “appreciable” as meaning “capable of being perceived or noticed.” W. Statsky, Legal Thesaurus,/Dictionary (1985).

Therefore, in civil cases a judge must also consider when this instruction should be given if there is some evidence of one being intoxicated and then claiming injuries. At the trial court level, in the case of Madill vs. Los Angeles Seattle Motor Express, Inc., 64 Wn.2d 548, 390 P2d 821 (1964) the court analyzed and gave an instruction which ultimately was incorrectly allowed to be given to the jury. Thus, the verdict was overturned on appeal. The issue in Madill pertained to the fact that there was “insufficient evidence in the case to raise the issue of whether Mrs. Madill was under the influence of or affected by intoxicating liquor; the instruction is therefore prejudicial and the plaintiffs have been denied a fair trial.” Madill, at 550.

When determining whether a trial court should have submitted an issue to the jury when there was no substantial evidence concerning it, this will result in prejudicial error allowing for the appeal to be granted. Levitt vs. DeYoung, 43 Wn.2d 701, at 707.

Therefore in this case “the fact that Mrs. Madill, a plaintiff, had more than one bottle of beer is conceivable; however we do not know that this as a fact from the evidence, in such a conclusion would be based on mere speculation. There is complete absence of any evidence that she was under the influence of or affected by intoxicating liquor at the time of the accident.” Madill, at 553.

The facts in Madill in essence were as follows: Mrs. Madill swerved in front of a truck without warning, resulting in the truck rear ending her car. There was an issue of whether Mrs. Madill swerved her cut in front of the truck caused the truck to rear end the Madill vehicle causing a collision.

The appellate court analyzed the situation “as one where it is also conceivable that a sober person would be subject to such conduct by inadvertence, this judgment, or negligence. Therefore it cannot be said that her conduct was evidence of intoxication.” Madill, at 554.

It seems in Madill the defendant in the civil case was unable to establish that Mrs. Medill, the plaintiff, who had imbibed some alcohol, had evidenced any conduct quote that affected her ability to drive to any appreciable degree. Therefore, this jury instruction should not have been given in this case.

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Under the Influence of Alcohol or any Drug - Definition

Posted Tuesday, January 17, 2017 by Ed Harper

Under the Influence of Alcohol or any Drug – Definition

WPI 16.04 states the following: “A person is under the influence of alcohol or any drug if, as a result of using alcohol or any drug, the person’s ability to act as a reasonably careful person under the same or similar circumstances is lessened in any appreciable degree.” (WPI 16.04)

This instruction is to be used with WPI 16.03 and is not to be used when a person is driving a motor vehicle at the time of injury or death. In that case WPI 16.04.01, under the influence of alcohol or any drug – driving a motor vehicle, is to be used.

This jury instruction is based on RCW 5.40.060(1). This statute provides the standard for determining whether the person injured or killed was under the influence of intoxicating liquor or any drug and is the same standard set forth in the statute on driving while under the influence.

Pursuant to RCW capital 46.61.502, a person is guilty of driving under the influence of intoxicating liquor or any drug if the person drives a motor vehicle within the state while the person is either under the influence of or affected by the liquor and or drug. These definitions have been adapted for use in the case of a person injured and/or killed while engaged in an activity other than driving. The term “appreciable” means according to Black’s law dictionary “Capable of being perceived or recognized by the senses.”

The case of State v. Lewellyn, 78 Wn.App. 788, 890 P2d 418, points out what items may be utilized to assist in determining one’s ability to act, and whether it is lessened in any appreciable degree. Here, the court heard evidence from a WSP trooper who while giving certain tests, noticed Mr. Lewellyn smelled of alcohol, had been driving erratically, could not keep his balance, stopped while walking in order to steady himself, and could not touch his heel to his toe. This indicates an inability to act as a reasonably careful person under the same or similar circumstances who has been affected to a reasonable degree.

While this instruction WPI 16.04 does not pertain to automobile cases the same standards will apply in determining whether the person was acting as a reasonable person would have acted under the same or similar circumstances. So, first the judge must hear enough evidence to allow the instruction to be given; then, once the instruction is given, while deliberating, the jury is instructed to verify and examine the facts as presented and then make a factual determination of the effects of the intoxicants.

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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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