Recent Washington case reviews Assumption of Risk

Posted Thursday, January 06, 2011 by Ed Harper

Assumption of Risk – The State of Washington follows the common law more closely than California as a complete defense to a personal injury claim. Assumption of risk is defined as a plaintiff’s voluntary choice to encounter a known risk. In Washington, which follows the common law more closely than California, there are four separate areas of assumption of risk to be discerned and analyzed. First, primary or express assumption of the risk is by nature contractual and provides a complete defense. Second, implied reasonable assumption of the risk provides a defense when the plaintiff’s actions were grossly negligent to the point of a wanton disregard for their own safety. Third, implied secondary assumption of risk requires a subjective test to determine if the plaintiff actually knew and comprehended the risk. Finally, secondary unreasonable assumption of risk is subsumed under comparative fault. Therefore, the court must engage in near mental gymnastics to delineate whether the plaintiff’s knowledge and conduct rose to the level of having assumed the risk, thereby precluding a claim.

In a recent decision, Gregoire v Oak Harbor 2010 WL 488078 the Washington Supreme Court determined that an inmate who had committed suicide in the Oak Harbor city jail did not assume the risk and the case was remanded back for a jury to determine the validity of his claim. The trial court and appellate court had allowed the claim to be dismissed as Oak Harbor had defended their claim utilizing this defense. The Supreme Court stated that assumption of risk did not apply in “special relationship” cases. Here, the jail guard was designated as a protector of the inmate from any self-inflicted harm. This is similar to the determination of a mentally unstable person under the care of a mental hospital requires the facility with supervisory control and their employees to provide more oversight and care for those in their care. This case is quite important in establishing the jails special relationship over inmates and extends the ability of consumer advocates in keeping government employees accountable.

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