WPI 12.06 Duty of Seeing

See the following Comment for a summary of issues raised by this instruction. Use WPI 10.02 (Ordinary Care—Adult—Definition) with this instruction.

Caution regarding overemphasizing one party's theory. Caution should be used in giving this instruction. It is reversible error to give this instruction if the instructions as a whole “so repetitiously cover a point of law as to generate a gross overweighting in favor of one party.” Samuelson v. Freeman, 75 Wn.2d 894, 897, 454 P.2d 406 (1969); Hinkel v. Weyerhaeuser Co., 6 Wn.App. 548, 553, 494 P.2d 1008 (1972).

For example, in Cornejo v. State, 57 Wn.App. 314, 788 P.2d 554 (1990), the court held that it was reversible error to give this instruction because it unfairly emphasized one party's theory of the case. The court found the instruction “palpably unfair” because it turned the jury's attention away from the clear evidence of the defendant's negligence, toward the question of the plaintiff's contributory negligence on which there was minimal evidence. Cornejo v. State, 57 Wn.App. at 321. The court also noted that while in some cases the giving of the instruction may be regarded as a “harmless redundancy,” in Cornejo it was not. Cornejo v. State, 57 Wn.App. at 321.

Similarly, the failure to give WPI 12.06 is not error when the giving of the instruction would overemphasize a party's position on a disputed factual question, Dorr v. Big Creek Wood Products, Inc., 84 Wn.App. 420, 431–32, 927 P.2d 1148 (1996). The failure to give WPI 12.06 is also not error if a party's theory of the case can be adequately argued under other instructions. Young v. Carter, 38 Wn.App. 147, 148–49, 684 P.2d 784 (1984) (holding that the driver's duty to see 11-year-old bicyclist in cross walk was adequately argued under general negligence instructions, WPI 10.01 (Negligence—Adult—Definition) and WPI 10.02 (Ordinary Care—Adult—Definition)).

The instruction, however, is properly given in some cases. For example, in Hammel v. Rife, 37 Wn.App. 577, 585–86, 682 P.2d 949 (1984), the giving of this instruction did not overly emphasize one party's theory of the case. The court in Hammel found no error in giving WPI 12.06 with WPI 70.01 (General Duty—Driver or Pedestrian) and WPI 70.06 (Right to Assume Others Will Obey Law—Street or Highways). Hammel v. Rife, 37 Wn.App. at 585. The court noted that each instruction correctly stated the law and that the instructions taken together did not “so repetitiously cover a point of law as to generate a gross overweightingin favor of one party” since each instruction covered “a somewhat different legal facet of the case.” Hammel v. Rife, 37 Wn.App. at 585–86; see also Humes v. Fritz Companies, Inc., 125 Wn.App 477, 497–98, 105 P.3d 1000 (2005) (affirming the giving of WPI 12.06 when it did not over-emphasize one party's theory of the case); Alston v. Blythe, 88 Wn.App. 26, 38–39, 943 P.2d 692 (1997) (holding that the giving of WPI 12.06, WPI 70.01, and WPI 70.06 was not error as the instructions merely described various facets of the duty plaintiff owed to exercise reasonable care for her own safety).

Wording of instruction. The cases provide that a person must use his or her faculties and senses to avoid danger, if one can “reasonably” do so. Davis v. Bader, 57 Wn.2d 871, 873–74, 360 P.2d352 (1961); Hines v. Neuner, 42 Wn.2d 116, 119–21, 253 P.2d 945 (1953); Johnson v. Washington Route,Inc., 121 Wash. 608, 609–10, 209 P. 1100 (1922). The tests of “ordinary care” and “reasonableness” are essentially the same. Since “ordinary care” has been defined in Instruction 10.02 (Ordinary Care—Adult—Definition), that phrase has been used in this instruction for the purpose of uniformity.

Question of fact. The failure to see what admittedly is visible, if only one had looked, is not automatically negligence. It is a question for the jury to determine whether, despite the failure to look, the party's conduct was still reasonable under the circumstances. Davis v. Bader, 57 Wn.2d 871, 873–74, 360 P.2d352 (1961); Hines v. Neuner, 42 Wn.2d 116, 119–21, 253 P.2d 945 (1953).

Positive duty to look. The principle that one will be deemed to have actually seen what could have been seen had the person looked is only applicable when there is a positive duty to look. Smith v. Manning's, Inc., 13 Wn.2d 573, 578, 126 P.2d 44 (1942). For instance when there is no reason to anticipate a hazard, ordinary care does not require one who is walking in a place provided for the purpose to keep his or her eyes riveted to the floor immediately in front of his or her feet. Smith v. B & I Sales Co., 74 Wn.2d 151, 153, 443 P.2d 819 (1968); Simpson v. Doe, 39 Wn.2d 934, 239 P.2d 1051 (1952); Smith v. Manning's, Inc., 13 Wn.2d at 578.