WPI 13.04 Assumption of Risk—Express

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

Use WPI 21.13 (Burden of Proof on the Issues—Assumption of Risk—Express), with this instruction.

Use bracketed material as applicable.

Do not use this instruction if the issue of the defendant's gross negligence is to be considered by the jury. See the Comment below.

Express assumption of risk remains viable as a defense in Washington, notwithstanding the enactment of the comparative negligence and contributory fault statutes. See Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 496–97, 834 P.2d 6 (1992); Kirk v. Washington State University, 109 Wn.2d 448, 457, 746 P.2d 285 (1987); Shorter v. Drury, 103 Wn.2d 645, 656, 695 P.2d 116 (1985); 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, 375 n.4, 722 P.2d 1310 (1986).

Application. Express assumption of the risk is a defense when “the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” Prosser and Keeton on the Law of Torts, § 68 (5th ed. 1984). It “is based on contract and involves an agreement by one party to relieve another party of the duty to use reasonable care.” Johnson v. NEW, Inc., 89 Wn.App. 309, 311, 948 P.2d 877 (1997) (citing Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6 (1992); Vodopest v. MacGregor, 128 Wn.2d 840, 913 P.2d 779 (1996)).

Express assumption of risk is a bar to damages arising from the risk which was expressly assumed, but it does not bar damages arising from other risks that were not expressly assumed. See Kirk v. Washington State University, 109 Wn.2d 448, 453–54, 746 P.2d 285 (1987); Shorter v. Drury, 103 Wn.2d 645, 657, 695 P.2d 116 (1985) (husband and wife assumed risk of death by expressly refusing to permit a blood transfusion, but did not assume risk of the direct consequences of physician's negligence); Johnson v. NEW, Inc., 89 Wn.App. 309, 312, 948 P.2d 877 (1997).

Before a person may expressly assume the risk of another's conduct, it must be shown that the person had knowledge of the specific (as opposed to general) risk which caused the injury, that the person appreciated and understood its nature, and that the person voluntarily chose to incur it. The determination whether the person injured knowingly and voluntarily encountered the risk is subjective, i.e., whether the plaintiff in fact knew of and understood the risk, not whether a reasonable person would have comprehended the risk. Shorter v. Drury, 103 Wn.2d 645, 656–57, 695 P.2d 116 (1985); Martin v. Kidwiler, 71 Wn.2d 47, 49, 426 P.2d 489 (1967).

Gross negligence. The defense of express assumption of the risk has an exception for acts of gross negligence. Boyce v. West, 71 Wn.App. 657, 667, 862 P.2d 592 (1993). For this reason, an exculpatory contract is invalid if a party's conduct constitutes gross negligence. Liberty Furniture, Inc. v. Sonitrol of Spokane, Inc., 53 Wn.App. 879, 770 P.2d 1086 (1989).

Validity of exculpatory contracts. Express assumption of risk may arise from an exculpatory contract by which the plaintiff agrees to relieve the defendant of liability for certain occurrences. The validity of such contracts is a separate issue from assumption of risk. See Shorter v. Drury, 103 Wn.2d 645, 653, 695 P.2d 116 (1985). As a general rule, absent some statute to the contrary, contracts against liability for negligence are valid except in those cases in which a public interest is involved or in which the negligent act falls greatly below the standard established by law for the protection of others against unreasonable risks of harm. See Blide v. Rainier Mountaineering, Inc., 30 Wn.App. 571, 573–74, 636 P.2d 492 (1981); Hewitt v. Miller, 11 Wn.App. 72, 77, 521 P.2d 244 (1974).

Several opinions have discussed the factors to be considered in determining whether an exculpatory agreement violates public policy. See Vodopest v. MacGregor, 128 Wn.2d 840, 854–55, 913 P.2d779 (1996); Wagenblast v. Odessa Sch. Dist. 105–157–166J, 110 Wn.2d 845, 851–52, 758 P.2d 968 (1988); and Shields v. Sta-Fit, Inc., 79 Wn.App. 584, 587, 903 P.2d 525 (1995). The court in Wagenblast held that as a matter of public policy a school district cannot condition participation in interscholastic sports upon the signing of an exculpatory agreement which releases the school district from the consequences of future negligence. The court in Vodopest held that a pre-injury agreement, which releases a medical researcher for negligent conduct which occurs in the course of medical research, violates public policy. The court in Shields held that an exculpatory release of a health club and its employees from negligence or fault did not violate public policy.

In Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 495, 834 P.2d 6 (1992), the Washington Supreme Court held that enforcement of an exculpatory clause signed by a parent violates public policy to the extent that it would waive a child's future cause of action for personal injuries resulting from a third party's negligence. But the Supreme Court found the language of the exculpatory clause contained in a ski school application sufficient to release the school from liability for damages suffered by the parents as a result of its negligent conduct. The court found that the language gave notice that the ski school was attempting to be released from liability for its negligence. The court noted that it is not necessary for the clause to contain the word “negligence” in order for the clause to be effective. The court also noted that the fact that the application used the words “hold harmless” rather than the word “release” did not significantly impact the issue of whether the effect of clause was to exculpate the ski school from liability for its own negligence.

Sports and recreation. For similar cases upholding a release, and finding an express assumption of risk, see Johnson v. NEW, Inc., 89 Wn.App. 309, 311–12, 948 P.2d 877 (1997) (express assumption of risk of injuries resulting from negligence, selection, adjustment, and use of ski-boot-binding equipment); Boyce v. West, 71 Wn.App. 657, 667, 862 P.2d 592 (1993) (express assumption by diving student of all risks associated with a scuba diving course included the risk of negligent instruction and supervision).