WPI 13.02 Assumption of Risk—Implied Reasonable

Use WPI 11.01 (Contributory Negligence—Definition), for actions involving implied reasonable assumption of risk.

Use WPI 13.03 (Assumption of Risk—Implied Primary), or WPI 13.04 (Assumption of Risk—Express), for actions involving implied primary or express assumption of risk.

The WPI Committee recommends that no instruction be given on implied reasonable assumption of risk in view of the opinions in Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 137 n.5, 875 P.2d 621 (1994), Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6 (1992), Alston v. Blythe, 88 Wn.App. 26, 32, 943 P.2d 692 (1997), Yurkovich v. Rose, 68 Wn.App. 643, 656, 847 P.2d 925 (1993), and Leyendecker v. Cousins, 53 Wn.App. 769, 774 n.2, 770 P.2d 675 (1989).

In Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6 (1992), the court appears to have retreated from its treatment of implied reasonable assumption of risk in Kirk v. Washington State University, 109 Wn.2d 448, 746 P.2d 285 (1987). In Kirk, the court had recognized implied reasonable assumption of risk as a separate damage reducing factor that survived the enactment of comparative negligence. Kirk v. Washington State University, 109 Wn.2d at 457–58. In Scott, the court stated that implied reasonable assumption of risk retains no independent significance from contributory negligence after the adoption of comparative negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497.

Subsequent cases have reiterated that implied reasonable assumption of risk, as well as implied unreasonable assumption of risk, are “nothing more than alternative names for contributory negligence.” Alston v. Blythe, 88 Wn.App. at 32. As the Supreme Court has stated: “[b]ecause contributory fault subsumes both implied reasonable and implied unreasonable assumption of the risk, there is no meaningful difference between them.” Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 143 n.8, 875 P.2d 621 (1994).

For a discussion of assumption of risk in general, see WPI 13.00 (Introduction).