The Harper Law Blog
The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.
Posted Tuesday, February 21, 2017 by Ed Harper
Express Assumption of Risk - Plaintiff Assuming the Duty of Care
Washington Pattern Instruction 13.04 is also a complete defense to a plaintiff’s case if properly proved by the defendant. The instruction states: “it is a defense to an action for personal injury or wrongful death that the person injured or person killed expressly assumed a specific risk of harm.
“A person expressly assumes the risk of harm if that person knows of the specific risk involved, understands its nature, and voluntarily consents to accept the risk by agreeing in advance to relieve the defendant of a duty of care owed to the person in relation to the specific risk.”
Express assumption of the risk is based more on contract concept rather than tort, whereas primary assumption of risk arises out of a tort concept. Scott 119 Wn. 2nd 484, 834 P.2d 6 (1992). When the defendant raises the complete defense of express assumption of the risk they are in essence contending that the plaintiff gave the advance consent, in essence contracting with the defendant to relieve the defendant of any duty/responsibility they would have owed to the plaintiff.
The seminal case in the state of Washington is Scott vs. Pac West. Scott, a young man, was injured when he sustained severe head injuries while skiing at a commercial ski resort. Justin Scott was 12 years old at the time of his accident on March 11, 1989. At the time of his injury Justin was attempting to ski on a slalom race course which had been laid out by the ski school owner.
Justin’s mother, Barbara Scott, with Justin’s father’s knowledge and acquiescence, had filled out and signed an application for the ski school.… The following language was included in the application: “for and in consideration of the instruction of skiing, I hereby hold harmless Grayson Connor, and Grayson Connor ski school in any instructor or chaperone from all claims arising out of the instruction of skiing or in transit to or from the ski area. I accept full responsibility for the cost of treatment for any injuries suffered while taking part in the program.” Scott at 119.
Express assumption occurs when the parties agree in advance so one of them is under no obligation to use reasonable care for the benefit of the other and will not be liable for what would otherwise be negligence.… However such assumption only bars a claim with regard to the risks actually assumed by the plaintiff. Scott at 496 – 497. Thus in this case, the language of the purported exculpatory clause contained in the ski school application was sufficiently clear to give notice that the ski school was attempting to be released from liability for its negligent conduct. Scott at 490.
The case goes on to discuss whether a parent can legally waive a child’s future potential cause of action for personal injuries resulting from 1/3 party’s negligence. In short, the answer is no. This will be further discussed at a later date.
Permalink to this entry
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.
Permalink to this entry
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.
Permalink to this entry
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.
Permalink to this entry
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.
Permalink to this entry