The Harper Law Blog

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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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Defendants Cannot Avoid Liability by using Inconspicuous Disclaimers

Posted Thursday, October 20, 2016 by Ed Harper

Defendants Cannot Avoid Liability by using Inconspicuous Disclaimers

The desire to limit liability is a strong incentive to business owners. This is not a new situation, and a case from 1971 points this out. In Baker v. City of Seattle, 79 Wn.2d 198 (1971) Robert Baker was planning on playing golf at Jackson Park Municipal Golf Course in the City of Seattle. He rented a golf cart from the proprietor, doing business as Westweld Metal Works.

As Mr. Baker was returning the golf cart, he alleged the brakes failed and the golf cart overturned as a result. He was injured in this calamitous event, and he brought suit against the city and the lessor of the golf cart.

Westweld alleged however, that as part of the rental agreement Mr. Baker had signed, he had given up his rights to sue (as a disclaimer of liability was found in the standard agreement). The Washington Supreme Court overturned this, and stated the font and the type setting, as well as the location of the disclaimer agreement within the standard contract was not conspicuous enough.

The issue in the case “is whether one who business is regularly, at least in part, the leasing of chattels (property) can avoid liability for injuries to customers by placing a disclaimer clause in t a standard form rental agreement.” Baker at 200.

The court reasoned Mr. Baker was not put on notice. Thus, the rental agreement disclaimer would not preclude his ability to seek recompense for his injuries. “The disclaimer was contained in the middle of the agreement and was not conspicuous. To allow the respondent to completely exclude himself from liability by such an inconspicuous disclaimer, would truly be unconscionable.” Baker at 202.

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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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