WPI 11.04 Negligence of Parent Not Imputed

Use this instruction if the parent is not a party in interest except as next friend or guardian, and there is evidence from which the jury might conclude that the parent was guilty of negligence that proximately contributed to the child's injury.

If the parent is a party in interest as well as suing on behalf of the child, use WPI 11.05 (Contributory Negligence—Parent of Child Six or Over).

Do not use this instruction in actions brought for wrongful death or loss of consortium.

For cases in which negligence is imputed on one claim and not on other claims, this instruction will need to be modified.

RCW 4.22.020.

The statute codifies common law principles recognized in Washington since 1896. See Roth v. Union Depot Co., 13 Wash. 525, 544–46, 43 P. 641 (1896); see also Vioen v. Cluff, 69 Wn.2d 306,418 P.2d 430 (1966); Adamson v. Traylor, 60 Wn.2d 332, 334–35, 373 P.2d 961 (1962).

RCW 4.22.020 may have been abrogated by RCW 4.22.070, which was enacted as part of the 1986 Tort Reform Act. The continued use of this instruction depends on how RCW 4.22.070(1) is construed. Under RCW 4.22.070(1), fault is to be attributed to all of the entities that caused the claimant's damages (with an exception that does not apply here). If this statute is viewed as having repealed the rule set forth in this instruction, the instruction should not be used. On the other hand, continued use of the instruction may be appropriate if the view is adopted that RCW4.22.070(1) did not repeal the rule expressed in this instruction. The implicit repeal of statutes is strongly disfavored. See Tollycraft Yachts Corp. v. McCoy, 122 Wn.2d 426, 439, 858 P.2d 503(1993).

In a related context, the Washington Supreme Court has ruled that a child under age six is not an “entity” to whom fault can be apportioned under RCW 4.22.070(1). The Court based its decision on Washington's pre-existing common law rule that such young children are incapable of appreciating and applying a standard of due care and hence are incapable of negligence or recklessness. Price v. Kitsap Transit, 125 Wn.2d 456, 886 P.2d 556 (1994).