WPI 14.02 Contributory Willful Misconduct and Contributory Wanton Misconduct—Defined

Use WPI 11.01 (Contributory Negligence—Definition) as a pattern if contributory willful or wanton misconduct is claimed as a damage-reducing factor. Convert WPI 11.01 (Contributory Negligence—Definition) for use by substituting the words “willful misconduct” or “wanton misconduct” for the word “negligence” throughout the instruction.

RCW 4.22.005 and RCW 4.22.015.

In an action based on fault, any contributory fault diminishes the claimant's damages proportionately. RCW 4.22.005. Fault “includes acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others … [T]he term also includes … reasonable failure to avoid an injury or to mitigate damages.” RCW 4.22.015.

Washington courts have not specifically held that willful or wanton misconduct meets this definition of fault, although the courts have held that the definition does not encompass intentional torts. Morgan v. Johnson, 137 Wn.2d 887, 976 P.2d 619 (1999); Welch v. Southland Corp., 134 Wn.2d 629, 952 P.2d 162 (1998). Quoting the final report of the Senate Select Committee on Tort and Product Liability Reform, however, the Washington Supreme Court has stated: “The definition is intended to encompass all degrees of fault in tort actions short of intentionally caused harm. This would include negligence, gross negligence, recklessness, willful and wanton misconduct and strict liability ….” Schmidt v. Cornerstone Investments, Inc., 115 Wn.2d148, 161–62, 795 P.2d 1143 (1990) (citing Senate Journal, 47th Leg., Reg. Sess. 635 (Wash. 1981)).

Prior to the enactment of RCW 4.22.005 and RCW 4.22.015, both Adkisson v. City of Seattle, 42 Wn.2d 676, 258 P.2d 461 (1953), and Sorensen v. Estate of McDonald, 78 Wn.2d 103, 470 P.2d 206 (1970), had held that contributory negligence did not constitute a defense to a claim based on the willful or wanton misconduct of a defendant, but that contributory willful or wanton misconduct did constitute a defense to such claims. Whether the rules set forth in these cases continue under the statutes has not yet been addressed.