WPI 13.00 Introduction

The doctrine of assumption of risk has been surrounded by confusion and controversy. Much of this derives from the fact that the term assumption of risk has been used to describe several different concepts. In analyzing assumption of risk, the Washington Supreme Court has followed the four classifications set forth in W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68 (5th ed. 1984). Gleason v. Cohen, 192 Wn.App. 788, 368 P.3d 531 (2016), provides a detailed explanation of these classifications as applied in Washington. See also Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 143, 875 P.2d 621 (1994); Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992); Kirk v. Washington State University, 109 Wn.2d 448, 453, 746 P.2d 285 (1987); Shorter v. Drury, 103 Wn.2d 645, 655, 695 P.2d 116 (1985). The classifications for assumption of risk are express, implied primary, implied reasonable, and implied unreasonable.

Express and implied primary assumption of risk arise when the plaintiff has consented to relieve the defendant of a duty to the plaintiff regarding specific known risks. Scott v. Pacific West Mountain Resort, 119 Wn.2d. 484; Kirk v. Washington State University, 109 Wn.2d 448. Both raise the same question: did the plaintiff consent, before the accident or injury, to the negation of a duty that the defendant otherwise would have owed to the plaintiff? Alston v. Blythe, 88 Wn.App. 26, 32–33, 943 P.2d 692 (1997).

Because express and implied primary assumption of risk negate the defendant's duty with regard to the risks assumed, they act as a bar to plaintiff's recovery when the injury results from one of the assumed risks. Gleason v. Cohen, 192 Wn.App. 788, 794, 368 P.3d 531 (2016); Scott v. Pacific West Mountain Resort, 119 Wn.2d. 484; Alston v. Blythe, 88 Wn.App. 26, 943 P.2d 692 (1997). The general elements of proof for express and implied primary assumption of risk are substantially the same. The evidence must show that plaintiff (1) had full subjective understanding, (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk. Kirk v. Washington StateUniversity, 109 Wn.2d at 453; Hvolboll v. Wolff Co., 187 Wn.App. 37, 50, 347 P.3d 476 (2015).

Implied reasonable and implied unreasonable assumption of risk arise when the plaintiff is aware of, and chooses voluntarily to encounter, a risk already created by the defendant's negligence. Scott v. Pacific West Mountain Resort, Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6 (1992); Alston v. Blythe, 88 Wn.App. 26, 943P.2d 692 (1997). These forms of assumption of risk focus not so much on the defendant's duty and negligence, but on the objective unreasonableness of plaintiff's conduct or plaintiff's duty to exercise ordinary care for his or her own safety. See Kirk v. Washington State University, 109 Wn.2d 448, 746 P.2d 285 (1987); Alston v. Blythe, 88 Wn.App. 26.

For these two forms of assumption of risk, “plaintiff's conduct is not truly consensual, but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk.” Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499. Thus, both implied reasonable and implied unreasonable assumption of risk are subsumed in, and retain no independent significance from, contributory negligence following the adoption of comparative negligence. Tincani v. Inland Empire Zoological Soc.,124 Wn.2d at 137 n.5; Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497.

Specific examples and citations as to each type of assumption of risk will be presented in the comments following each assumption of risk instruction.