WPI 11.01 Contributory Negligence—Definition

Use this instruction if there is an issue of contributory negligence. Do not use this instruction in a case involving an intentional tort by a defendant. For instructions on assumption of risk, see WPI Chapter 13 (Assumption of Risk).

Use WPI 10.01 (Negligence—Adult—Definition), WPI 10.02 (Ordinary Care—Adult—Definition), and WPI 11.07 (Determining the Degree of Contributory Negligence), with this instruction. If this instruction is given in connection with a child who has passed his or her sixth birthday, also use WPI 10.05 (Ordinary Care—Child—Definition). Do not use this instruction for a child under six years of age. In that event, use WPI 11.03 (Child Under Six Years of Age Incapable of Contributory Negligence).

RCW 4.22.005, RCW 4.22.015, and RCW 4.22.070.

Statutory background. RCW 4.22.005 provides that any contributory fault chargeable to the claimant in an action based on fault diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's fault, but does not bar recovery.

RCW 4.22.015 defines fault as including acts or omissions, including the misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others. Fault also includes breach of warranty, unreasonable assumption of risk, and unreasonable failure to avoid an injury or to mitigate damages. RCW 4.22.015 further provides that legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault. Moreover, a comparison of fault must consider both the nature of the conduct of the parties to the action and the extent of the causal relation between such conduct and the damages.

RCW 4.22.070, enacted in 1986, significantly altered the apportionment of fault in actions filed on or after August 1, 1986. The statute provides that in all actions involving fault of more than one entity, the trier of fact shall determine the percentage of total fault that is attributable to every entity that caused the claimant's damages. Judgment shall then be entered against each defendant in an amount that represents that party's proportionate share of the claimant's total damages.

RCW 4.22.070(1) further states that the liability of each defendant shall be several unless (1) the defendant and another person were acting “in concert,” (2) a person was acting as an agent or servant of the defendant, or (3) the plaintiff was not at fault. A party is responsible for the fault of another person or for payment of the proportionate share of another party when both were acting in concert or when a person was acting as an agent or servant of the party. RCW4.22.070(1)(a). When the plaintiff was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the plaintiff's total damages. RCW 4.22.070(1)(b).

RCW 4.22.070(2) provides that if a defendant is jointly and severally liable under one of the exceptions listed above, the defendant's right to contribution against another jointly and severally liable defendant shall be determined under RCW 4.22.040, RCW 4.22.050, and RCW 4.22.060.

RCW 4.22.070 neither repealed nor modified RCW 4.22.005.

Meaning of contributory negligence. In determining whether a person was contributorily negligent, the inquiry is whether or not the person exercised that reasonable care for his or her own safety that a reasonable person would have used under the existing facts or circumstances, and, if not, whether such conduct was a legally contributing cause of the injury. See Rosendahl v. Lesourd Methodist Church, 68 Wn.2d 180, 182, 412 P.2d 109 (1966); Huston v. First Church of God, 46 Wn.App. 740, 746–47, 732 P.2d 173 (1987).

A plaintiff's negligence relates to a failure to use due care for his or her own protection whereas a defendant's negligence relates to a failure to use due care for the safety of others. See Geschwind v. Flanagan, 121 Wn.2d 833, 838, 854 P.2d 1061 (1993); Honegger v. Yoke's Washington Foods, Inc., 83 Wn.App. 293, 296, 921 P.2d 1080 (1996).

Question of fact. Ordinarily, the existence of contributory negligence is a factual question to be resolved by the jury. See Baughn v. Malone, 33 Wn.App. 592, 656 P.2d 1118 (1983). When the evidence supports an inference that each party was negligent, a trial court errs if it fails to give a jury instruction defining contributory negligence or if it fails to provide verdict forms requiring the jury to compare each party's negligence. Sdorra v. Dickinson, 80 Wn.App. 695, 703, 910 P.2d 1328 (1996).

In Bordynoski v. Bergner, 97 Wn.2d 335,338, 644 P.2d 1173 (1982), the court held that, under the facts and circumstances of the case, it was error to instruct the jury that the plaintiff was contributorily negligent as a matter of lawand that the plaintiff's contributory negligence was a proximate cause of the accident.The court stated that “a finding of contributory negligence as a matter of law should be made only in the clearest of cases and a condition precedent for such a determination is a conclusion that reasonable minds could not have differed in their interpretation of the factual pattern.” Bordynoski v. Bergner, 97 Wn.2d at 338 (internal quotation marks omitted). With respect to proximate cause, the court stated that “usually the question of proximate cause is for the jury, and it is only when the facts are undisputed and the inferences therefrom are plain and incapable of reasonable doubt or difference of opinion that it may be a question of law for the court.” Bordynoski v. Bergner, 97 Wn.2d at 340.

In Clements v. Blue Cross of Washington & Alaska, Inc., 37 Wn.App. 544, 548, 682 P.2d 942 (1984), the court held that when there is substantial evidence to support the defendant's position, it is error for the trial court to rule that a plaintiff was not contributorily negligent as a matter of law and thereby withdraw the issue of contributory negligence from the jury.

Burden of proof. The defendant has the burden of proving contributory negligence. Cox v. Spangler, 141 Wn.2d 431, 447, 5 P.3d 1265 (2000).

Intentional torts. A plaintiff's contributory fault cannot be used to reduce a defendant's liability for intentional torts. Honegger v. Yoke's Washington Foods, Inc., 83 Wn.App. 293, 296, 921 P.2d 1080 (1996).

The joint and several liability of negligent (or reckless, or strictly liable) tortfeasors to a fault-free plaintiff does not extend to the portion of plaintiff's damages caused by intentional torts of other tortfeasors. Thus, in cases involving multiple defendants, those guilty of intentional torts are severally liable for the damages proximately caused by them, while tortfeasors guilty of negligence are jointly and severally liable to the fault-free plaintiff only for that portion of damages caused by the negligent acts. These principles apply even when a particular tortfeasor is liable for both intentional and negligence-based torts. Tegman v. Accident & Medical Investigations, Inc.,150 Wn.2d 102, 75 P.3d 497 (2003).

The question of which party bears the burden of segregating damages between those caused by intentional torts and those caused by negligence appears to be unresolved. See Sheikh v. Choe, 156 Wn.2d 441, 460, 128 P.3d 574 (2006) (Chambers, J. concurring).

Percentages of contributory negligence. For the instruction on assigning percentages of contributory negligence, see WPI 11.07 (Determining the Percentage of Contributory Negligence).