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WPI 13.03 Assumption of Risk—Implied Primary

6 WAPRAC WPI 13.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 13.03 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part II. Negligence—Risk—Misconduct—Proximate Cause

Chapter 13. Assumption of Risk

WPI 13.03 Assumption of Risk—Implied Primary

It is a defense to an action for [personal injury] [wrongful death] that the [person injured] [person killed] impliedly assumed a specific risk of harm.

A person impliedly assumes a risk of harm if that person knows of the specific risk associated with [a course of conduct] [an activity], understands its nature, voluntarily chooses to accept the risk by engaging in that [conduct] [activity], and impliedly consents to relieve the defendant of a duty of care owed to the person in relation to the specific risk.

[A person's acceptance of a risk is not voluntary if that person is left with no reasonable alternative course of conduct [to avoid the harm] [or] [to exercise or protect a right or privilege] because of the defendant's negligence.]

NOTE ON USE

Use this instruction if implied primary assumption of risk is asserted as a defense.

Use WPI 21.12 (Burden of Proof On the Issues—Assumption of Risk—Implied Primary), with this instruction.

Use bracketed material as applicable.

Use the bracketed last paragraph if there is an issue whether the plaintiff voluntarily accepted the risk. See Comment below.

COMMENT

This instruction is consistent with WPI 13.04 (Assumption of Risk—Express), and the court's comments in Dorr v. Big Creek Wood Products, Inc., 84Wn.App. 420, 927 P.2d 1148 (1996), which caution that an instruction on implied primary assumption of risk is incomplete without reference to the element of implied voluntary consent to relieve the defendant of a duty owed. See also Alston v. Blythe, 88 Wn.App. 26, 34 n. 22, 943P.2d 692 (1997) (sharing the Dorr court's concern over the propriety of former WPI 13.03). The last bracketed paragraph of this instruction has been added to meet the requirements of Tincani v.Inland Empire Zoological Soc., 66 Wn.App. 852, 837 P.2d 640 (1992), reversed in part on other grounds, 124 Wn.2d 121, 875 P.2d 621 (1994), and other cases which hold that the issue of voluntariness is an issue of fact for the jury.

Implied primary assumption of risk remains viable as a defense in Washington to the specific risk assumed, notwithstanding the enactment of the comparative negligence or contributory fault statutes. See Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 497, 834 P.2d 6 (1992); Kirk v.Washington State University, 109 Wn.2d 448, 453–54, 746 P.2d 285 (1987); Gleason v. Cohen, 192 Wn.App. 788, 368 P.3d 531 (2016) (extended discussion of assumption of risk); Hvoboll v. Wolffe, 187 Wn.App. 37, 47–49 (2015); Dorr v. Big Creek Wood Products, Inc., 84 Wn.App. 420, 426–27, 927 P.2d 1148 (1996); Leyendecker v. Cousins, 53 Wn.App. 769, 774–75, 770 P.2d 675 (1989); ITT Rayonier, Inc. v. Puget Sound Freight Lines, 44 Wn.App. 368, 376 n.5, 722 P.2d 1310 (1986); Ridge v. Kladnick, 42 Wn.App. 785, 788–89, 713 P.2d 1131 (1986).

Application. Implied primary assumption of risk applies to those situations in which a person, by voluntarily choosing to encounter a known peril, impliedly consents to relieve the defendant of the duty to reasonably protect against that peril. See Prosser and Keeton on the Law of Torts, § 68 (5th ed. 1984). The basis of this form of assumption of risk is the plaintiff's consent to the negation of a duty by the defendant with regard to those risks assumed. Scott v. Pacific West Mountain Resort,119 Wn.2d 484, 498, 834 P.2d 6 (1992); Kirk v. Washington State University,109 Wn.2d 448, 453–54, 746 P.2d 285 (1987) Thus, the defense of implied primary assumption of risk bars recovery of damages arising from the specific risks assumed, because it “is in reality the principle of no duty-hence no breach and no underlying cause of action.” Codd v. Stevens Pass, Inc., 45 Wn.App. 393, 402, 725 P.2d 1008 (1986); Ridge v. Kladnick, 42 Wn.App. 785, 788, 713 P.2d 1131 (1986); see Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 497, 834 P.2d 6 (1992); Leyendecker v. Cousins, 53 Wn.App. 769, 770 P.2d 675 (1989).

However, the defense does not preclude recovery for injuries from risks not specifically assumed and to the extent a plaintiff's injuries resulted from other risks created by the defendant, the defendant will remain liable for damages arising from those risks. Kirk v. Washington State University, 109 Wn.2d 448, 454, 455, 746 P.2d 285 (1987).

Scope of consent. In Alston v. Blythe, 88 Wn.App. 26, 34, 943 P.2d 692 (1997), the court held:

Because the plaintiff's consent lies at the heart of both express and implied primary assumption of risk, “[i]t is important to carefully define the scope” of that consent. This is done by identifying the duties the defendant would have had in the absence of the doctrine of assumption of risk, and then segregating those duties into (a) those (if any) which the plaintiff consented to negate, and (b) those (if any) which the defendant retained. Like consent itself, the scope of consent is an issue of fact for the jury, unless the evidence is such that reasonable minds could not differ.

(Emphasis in original.)

In Egan v. Cauble, 92 Wn.App. 372, 377–78, 966 P.2d 362 (1998), the court held:

To invoke assumption of risk, a defendant must show that the plaintiff knowingly and voluntarily chose to encounter the risk. Thus, “[t]he evidence must show the plaintiff (1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.” Put another way, the plaintiff “must have knowledge of the risk, appreciate and understand its nature, and voluntarily choose to incur it.” Knowledge and voluntariness are questions of fact for the jury, except when reasonable minds could not differ.

See also Lascheid v. City of Kennewick, 137 Wn.App. 633, 642, 154 P.3d 307 (2007); Home v. North Kitsap School Dist., 92 Wn.App. 709, 720, 965 P.2d 1112 (1998); Erie v. White, 92 Wn.App. 297, 303, 966 P.2d 342 (1998).

Subjective standard. Whether a plaintiff chooses knowingly to encounter a risk is a subjective determination which turns on “whether he or she, at the time of the decision actually and subjectively knew all facts that a reasonable person in the defendant's shoes would know and disclose, or, concomitantly, all facts that a reasonable person in the plaintiff's shoes would want to know and consider.” Home v. North Kitsap School Dist., 92 Wn.App. 709, 720, 965 P.2d 1112 (1998); Egan v. Cauble, 92 Wn.App. 372, 78, 966 P.2d 362 (1998); Erie v. White, 92 Wn.App. 297, 303–04, 966 P.2d 342 (1998). There must be evidence that the plaintiff knew and appreciated the specific hazard which caused the injury, not just the generalized hazard of his or her activities. Shorter v. Drury, 103 Wn.2d 645, 657, 695 P.2d 116 (1985); Martin v. Kidwiler, 71 Wn.2d 47, 49, 426 P.2d 489 (1967); Egan v. Cauble, 92 Wn.App. at 378; Home v. North Kitsap School Dist., 92 Wn.App. at 720–21; Erie v. White, 92 Wn.App. at 303–04.

Whether a plaintiff chooses voluntarily to encounter a known risk, “depends on whether he or she elects to encounter it despite knowing of a reasonable alternative course of action.” Home v. North Kitsap School Dist., 92 Wn.App. at 721; Egan v. Cauble, 92 Wn.App. at 379; Erie v. White, 92 Wn.App. at 304. In order for assumption of risk to bar recovery, the plaintiff “must have had a reasonable opportunity to act differently or proceed on an alternate course that would have avoided the danger.” Zook v. Baier, 9 Wn.App. 708, 716, 514 P.2d 923 (1973).

Cautious use. The court in Dorr v. Big Creek Wood Products, Inc., 84 Wn.App. 420, 425–26, 927 Wn.App. 1148 (1996), cautioned that “[t]rial courts are rightfully wary of requests to instruct the jury on implied primary assumption of the risk” as the doctrine “if not boxed in and carefully watched has an expansive tendency to reintroduce the complete bar to recovery into territory now staked out by statute as the domain of comparative negligence.” The court in Dorr, however, concluded that: “An instruction on implied primary assumption of the risk is appropriate where a plaintiff has impliedly consented (often in advance of any negligence by defendant) to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks.” Dorr v. Big Creek WoodProducts, Inc., 84 Wn.App. at 426–27 (internal quotation marks omitted). The court in Dorr further indicated:

Where appropriate, a separate instruction may be given to allow the defendant to argue in the alternative. Either the plaintiff relieved the defendant of the applicable duty, and there is a total bar to recovery; or the defendant owed the duty, and comparative negligence principles apply if there was a breach by the defendant causing damage.

Dorr v. Big Creek Wood Products, Inc., 84 Wn.App. at 426–27.

In Alston v. Blythe, 88 Wn.App. 26, 34, 943 P.2d 692 (1997), the court stated this as a two-part test:

[A] trial court may instruct on both assumption of risk and contributory negligence if the evidence produced at trial is sufficient to support two distinct findings: (a) that the plaintiff consented to relieve the defendant of one or more duties that the defendant would otherwise have owed to the plaintiff, and (b) that the plaintiff failed to exercise ordinary care for his or her own safety.

Alston v. Blythe, 88 Wn.App. at 34. If the evidence will support only the second of these findings, then “an instruction on contributory negligence is all that is necessary or appropriate.” Alston v. Blythe, 88 Wn.App. at 34 (quoting Dorr v. Big Creek Wood Products, Inc., 84 Wn.App. at 426).

Sports and recreation. Primary assumption of risk often arises in actions involving injuries sustained while participating in sports or other recreational activities. As a general rule those who participate in such activities assume the inherent risks in the game or activity which are known and obvious to the participant. Thus, in Ridge v. Kladnick, 42 Wn.App. 785, 713 P.2d 1131 (1986), a roller skater was deemed to have assumed the risk of being knocked over and injured by participating in a roller skating game in which skaters tried to knock each other over. However, participation in an activity does not preclude a participant from recovering for injuries resulting from unknown risks or dangers. See Regan v. City of Seattle, 76 Wn.2d 501, 507–08, 458 P.2d 12 (1969) (holding that a go-cart driver did not assume the risk of spilled water on the race track, when the driver was unaware that the water was on the track); Codd v. Stevens Pass, Inc., 45 Wn.App. 393, 725 P.2d 1008 (1986) (holding that a skier did not assume the risk of unknown dangers on the ski trails and slopes).

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

[Current as of September 2018.]

End of Document