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WPI 14.01 Willful Misconduct and Wanton Misconduct—Defined

6 WAPRAC WPI 14.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 14.01 (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 14. Willful and Wanton Misconduct and Tort of Outrage

WPI 14.01 Willful Misconduct and Wanton Misconduct—Defined

[Willful misconduct is the intentional doing of an act which one has a duty to refrain from doing or the intentional failure to do an act which one has the duty to do when he or she [has actual knowledge of the peril that will be created and intentionally fails to avert injury] [or] [actually intends to cause harm].]

[Wanton misconduct is the intentional doing of an act which one has a duty to refrain from doing or the intentional failure to do an act which one has a duty to do, in reckless disregard of the consequences and under such surrounding circumstances and conditions that a reasonable person would know, or should know, that such conduct would, in a high degree of probability, result in substantial harm to another.]

NOTE ON USE

Use either paragraph or both depending upon the claims and the evidence. The issues instruction from WPI Chapter 20, the burden of proof instruction from WPI Chapter 21, and the damage instruction from WPI Chapter 30 will all have to be modified to refer to willful misconduct or wanton misconduct, or both, instead of negligence.

COMMENT

The definitions in this instruction are based upon Adkisson v. City of Seattle, 42 Wn.2d 676, 684–85, 258 P.2d 461 (1953), and Zellmer v. Zellmer, 164 Wn.2d 147, 155 fn.2, 188 P.3d 497 (2008) (citing Restatement (Second) of Torts § 500 (1965)) (“‘Willful’ requires a showing of actual intent to harm while ‘wanton’ infers such intent from reckless conduct”) (citing Restatement of Torts (Second) § 500). A person whose conduct is either willful or wanton is “not simply one who is more careless than one who is merely negligent.” Adkisson v. City of Seattle, 42 Wn.2d at 682. Negligence conveys the idea of neglect or inadvertence. Willful misconduct is intentional. Wanton misconduct is indifference for the safety of others. As stated by the court:

[W]ilful misconduct is characterized by intent to injure, while wantonness implies indifference as to whether an act will injure another. Graphically expressed, the difference between willfulness and wantonness is that between casting a missile with intent to strike another and casting a missile with reason to believe that it will strike another, but with indifference as to whether it does or does not.

Adkisson v. City of Seattle, 42 Wn.2d at 684.

The standard of willful or wanton misconduct is used in two instructions in WPI Part X (Owners and Occupiers of Land). See WPI 120.02 (Duty to Trespasser) and WPI 120.04 (Attractive Nuisance).

The conduct of parents or stepparents acting in loco parentis in supervising their child may be actionable in tort, if such conduct rises to the level of willful and wanton misconduct; if the conduct of the parents does not rise to this level, the doctrine of parental immunity precludes liability. Zellmer v. Zellmer, 164 Wn.2d 147, 161, 188 P.3d 497(2008); Talarico v. Foremost Ins. Co., 105 Wn.2d 114, 116, 712 P.2d 294 (1986); Livingston v. City of Everett, 50 Wn.App. 655, 660, 751 P.2d 1199 (1988).

The court in Livingston defined “willful or wanton misconduct” as meaning that “the actor knew, or had reason to know, of circumstances which would inform a reasonable person of the highly dangerous character of his conduct.” Livingston v. City of Everett, 50 Wn.App. at 660 (citing Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d99, 105–06, 713 P.2d 79 (1986)). To constitute willful and wanton misconduct, a parent's act or failure to act must be so shockingly careless that no reasonable person would fail to act differently under the circumstances. Zellmer v. Zellmer, 132 Wn.App. 674, 685, 133 P.3d 948 (2006), reversed on other grounds 164 Wn.2d 147, 188 P.3d 497 (2008).

For a discussion of willful and wanton misconduct under RCW 4.24.300, the “Good Samaritan” statute, see Youngblood v. Schireman, 53 Wn.App. 95, 108–10, 765 P.2d 1312 (1988).

[Current as of September 2018.]

End of Document