The Harper Law Blog

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

A Defense to Negligence – Exculpatory Agreements

Posted Tuesday, October 18, 2016 by Ed Harper

Exculpatory Agreements

A properly executed exculpatory agreement, also known as a hold harmless or a general liability release can overcome a claim for negligence. Thus, a defendant will often successfully defeat a plaintiff’s claim of negligence if certain factors are satisfied. Hold harmless agreements are a way to protect oneself if for example one wants to rent out their property for dangerous activities or recreational activities. You may have found yourself signing a document prior to renting sporting goods or before you participate in some fun, but dangerous activity.

As mentioned in the case Blide v Rainier Mountaineering, Inc. 30 Wn.App. 571, 574 (1981), the reliance on a contract entered into prior to a mountainous activity allowed the defendant to avoid responsibility for the serious injury of a participant. In Blide, the plaintiff had unintentionally fallen or was lowered into crevasse where he was injured. However, the court reasoned the “accident was within the contemplation of the hold harmless which was clear, unambiguous and conspicuous.” Blide at 574.

The Blide court relied upon Hewitt v. Miller, 11 Wn.App. 72 (1974) for controlling this issue. “Absent some statute to the contrary, the generally accepted rule is that contracts against liability for negligence are valid except in those cases where a public interest is involved.” The court continued in evaluating the public interest in mountaineering, “although a popular sport in Washington, mountaineering like scuba diving, does not involve public interest and the plaintiff has at no time complained that the alleged negligence here fell greatly below (this would require proving the defendant exhibited gross negligence) the standard established by law.” Hewitt, at 574.

Therefore, Blide stands for the proposition that for the release to be effective, the document exhibits enough proof that the parties to the release contemplated the hazards as were actually experienced. In other words, was “the hazard experienced clearly within the contemplation of the release?” Blide at 574. To invalidate such a release, one would have to go through the document line by line to determine if the release provided enough pertinent information – relative to the hazard actually encountered. This would often require a factual inquire and comparison.

Why does this matter? As stated in a previous blog post, there are certain ways to avoid this type of exculpatory clause. As mentioned here, violation of public policy; an unclear and inconspicuous warning to the signer of a clause such as this; and/or gross negligence. These questions often become jury questions to ascertain the facts of the incident and then apply the law of the case before a verdict can be rendered.

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Gross Negligence

Posted Thursday, October 13, 2016 by Ed Harper

Gross Negligence

According to the Washington Pattern Instructions, WPI 10.07, gross negligence is the failure to exercise slight care. This is negligence (not intentional) that is substantially greater than ordinary negligence. Failure to exercise slight care does not mean the total absence of care, but care substantially less than ordinary care.

Thus, for gross negligence to be found, on the continuum of reasonable care with the highest care at the top, gross negligence is just above an intentional act to do or not do something.

In Nist v. Tudor, 67 Wn.2d 322 (1965), a passenger sued her friend and driver, Mrs. Tudor for failing to exercise slight care (gross negligence) when Mrs. Tudor turned left in front of another car which she knew was coming but failed to see the other car immediately before the wreck. “Her acts and omissions in turning suddenly into so obvious a danger supplied evidence from which a jury could well infer that she acted in the exercise of so small a degree of care under the circumstances as to be substantially and appreciably more negligence than ordinary, and hence could be held guilty of gross or great negligence.” Nist, at 332.

The court reasoned that there can be no issue unless there is substantial evidence of serious negligence (failing to do something or not do something). Therefore in the Nist case, the court should have allowed the jury to determine this as a factual question with the proper instructions.

Why is this important? In days gone by, Washington abided by a Guest-Host statute which initially required intentional conduct causing injury by the host driver as a prerequisite to being sued. In 1957 the legislature reduced the standard, and allowed a host driver to be sued when they exhibited grossly negligent conduct. Thus, a host could be sued when they failed to exhibit even slight care for the safety of their guests/passengers. In 1974 the legislature abolished this Guest-Host statute and allowed mere negligence (failure to exhibit ordinary care) to be utilized as the standard the driver would have to abide by. However, the precedential value of these cases still impacts our view of this jury instruction today.

Often this term needs to be defined for purposes of a particular case. In instances of a limitation of liability clause waiver (often signed before the participation in a sporting activity) gross negligence can be used to overturn the release. See Blide v. Rainier Mountaineering, Inc. 30 Wn.App. 571, 574 (1981). Or, in cases of discovery abuse, gross negligence of one of the parties in preserving evidence can lead to a discovery sanction against them.

Photo from: National Geographic

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Attributing Fault – Standard of Care for a Child

Posted Monday, October 10, 2016 by Ed Harper

Attributing Fault - Standard of Care for a Child

“When referring to a child, ordinary care means the same care that a reasonable careful child of the same age, intelligence, maturity, training, and experience would exercise under the same or similar circumstances.” WPI 10.05.

Generally, a child under the age of six (6) cannot be negligent. The law has deemed children under this age to not have the required mental ability to make decisions that would be considered reasonable or unreasonable. It can be assumed they will not make reasonable decisions, and thus cannot be held responsible for their actions in a court of law. Additionally, if a child is between the ages of 17-18, and of normal capacity (ability to think) they may be treated as an adult in all cases. So this jury instruction basically is for children between the ages of 6 – 16.

The law allows them not to be considered a party where fault can be attributed to. In other words, you would have to assert some claim against their parents or guardian for their negligent actions to place the blame. Thus, if a child falls due to their running too fast on the playground and they run into another child or person, you cannot assert their carelessness as a factor in any attempt to ascertain 100% fault for the injury or harm they may have caused.

However, there are exceptions to this general rule. If a child engages in a dangerous activity normally conducted by adults, such as operating a vehicle (boat, car, motorcycle, motorbike, snowmobile to name a few) the child should be held to a reasonable adult standard of care.

An example can be found in Robinson v. Lindsay, 92 Wn.2d 410 (1979) Washington Supreme Court which expanded the ability to attribute fault to a youth who was barely a teenager, and was held to a reasonable adult standard of care. In Robinson, 13 year old Billy Anderson was driving a snowmobile, and had done so for more than two (2) years. His driving led to an injury (the loss of the use of a thumb) for Kelly Robinson. In the past, the court reasoned, a child’s conduct was compared to a hypothetical reasonable careful child of the same age, intelligence, maturity, training and experience. Now, in this 1979 case, the Supreme Court of Washington expanded the rule for children, to be held to a higher standard if a child engages in an inherently dangerous activity. Here, the snowmobile could have attained speeds up to 65 miles per hour and was thus a very powerful machine/vehicle. The court looks to the facts of each accident, and determines whether the jury should be instructed on an adult standard of care, or a standard of care for a child under WPI 10.05.

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Negligence - Why it Matters in Everyday Life

Posted Thursday, October 06, 2016 by Ed Harper

Negligence - Why it Matters in Everyday Life

Whether we are at home fixing dinner for our family, driving on the road, or sitting in class with our schoolmates, certain rules exist which provide for our well-being. Western Civilization – specifically the United States – has articulated societal rules, laws, or statutes, to protect all of us from the potential detrimental effects of each other’s bad behavior. Since the days of John Locke in the 1600’s, and ultimately Thomas Jefferson in 1776, when he so famously articulated the phrase in the Declaration of Independence that we have “been endowed by their Creator with certain unalienable rights that among these are life, liberty, and pursuit of happiness” we have enjoyed these rights and our freedom.

Thus, we the people have enacted certain statutes to protect our freedom.

Washington has stated by and through the Supreme Court and a committee on jury instructions, the law which is read to juries prior to start of their deliberations on any civil or criminal case. The rule on negligence found in WPI 10.01 states:

“Negligence is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to act that a reasonable careful person would have done under the same or similar circumstances.”

The definition for ordinary care can be found in WPI 10.02 as well:

“Ordinary care means the care a reasonably careful person would exercise under the same or similar circumstances.”

These sound somewhat repetitive, and they are to some extent. First – as my father used to say – there are errors of omission (not performing an act) or errors of commission (performing an act). Second, acting reasonable or with reasonable care is fact specific. This is where liability questions in tort cases are centered.

Another way to interpret Negligence is to understand there are four (4) elements: Duty; Breach; Proximate Cause; and Damages. The definition of negligence stated above deals with the first two elements – duty and breach. The allegation of whether the defendant failed to act reasonably is the crux of our personal injury law. Questions arise –

  1. Whether it is in how we interpret the rules of the road; or
  2. Whether an accountant did our taxes correctly; or
  3. How a doctor performed a surgical procedure.

All of these have to answer the question – Did the person (or corporation) act like a reasonable person?

So, even though this definition seems rather straightforward, it is often very difficult when people ask a question such as “do I have a case when …” (you insert the facts). I often have to give them an answer such as “it depends”. It depends on ascertaining what a “reasonable person” would have done in a particular situation. Thus, while we have rules of conduct, these often become the subject of much argument and conjecture as we bring the case towards trial.

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Why is Apportioning Damages Important?

Posted Tuesday, October 04, 2016 by Ed Harper

Why is Apportioning Damages Important?

Dorothy Phennah, (see Phennah v Whalen 28 Wn. App. 19 (1980)), was injured in two auto accidents about three months apart. She admittedly had a pre-existing arthritic condition and had been seeing her physician for care for this condition. In two successive collisions, she injured her neck and back. She was not at fault for either collision. In trial, the court dismissed her case because she did not provide any information dividing up the responsibility of her injuries and the long-lasting effect of these injuries.

In this case her doctor testified that neither accident caused her underlying arthritic condition, “each affected the severity and permanence of her disability and that it is impossible to state which accident caused what degree of injury and permanence.” Phennah, at 21. The plaintiff provided no testimony for segregating the damages among the various causes and this was fatal to her case, at least initially.

However, the Washington Court of Appeals (Div. 1) states otherwise: “Once a plaintiff has proved that each successive negligent defendant has caused some damage, the burden of proving allocation of those damages among themselves is upon the defendants’ if the jury finds the harm is indivisible, then the defendants are jointly and severally liable for the entire harm.” Phennah, at 29.

This holding is based on RCW 4.22.070(1) which stands for joint and several liability. “…the liability of each defendant shall be several unless a party was acting in concert with another party or person…or when a person was acting as an agent or servant of the party, or the trier of fact determines the claimant or party suffering bodily injury or incurring property damages was not at fault. If it is determined that the claimant or the person injured or damaged was not at fault, the defendants against whom judgment is entered are jointly and severally liable for the sum of their proportionate shares of the claimant’s total damages.”

Thus, when a jury is provided the law, the defendant has the burden to establish their percent of responsibility if any, of plaintiff’s injuries. Washington Pattern Jury Instruction 41.04 states “If you find that more than one entity was negligent, you must determine the percentage of the total negligence is attributable to each entity that proximately caused the injury and/or damage to the plaintiff…”

So, why is this important? The court provided reasoning emanating from basic fairness. It would be unjust for an injured plaintiff, to be deprived of the right of redress, when independent wrong doers have caused the injuries.

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