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WPI 16.03 Intoxication of Person Injured or Killed—Defense

6 WAPRAC WPI 16.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 16.03 (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 16. Defenses
WPI 16.03 Intoxication of Person Injured or Killed—Defense
It is a defense to an action for damages for [personal injuries] [wrongful death] that the [person injured] [person killed] was then under the influence of [alcohol][,] [marijuana] [or] [any drug], that this condition was a proximate cause of the [injury] [death], and that the [person injured] [person killed] was more than fifty percent at fault.
[This defense does not apply, however, in an action against the driver of a motor vehicle if you find that:
(1) the driver was then under the influence of [alcohol] [,] [marijuana] [or] [any drug];
(2) such condition of the driver was a proximate cause of the [injury] [death];
(3) the [person injured] [person killed] was also under the influence of [alcohol] [or] [any drug]; and
(4) such condition of the [person injured] [person killed] was not a proximate cause of the occurrence causing the [injury] [death].]
NOTE ON USE
Use this instruction only if there is an issue of intoxication on the part of the person injured or killed. Use WPI 16.04 (Under the Influence of Alcohol or any Drug—Definition), WPI 21.09 (Burden of Proof on the Issues—Intoxication Defense), and WPI 15.01 (Proximate Cause—Definition) with this instruction.
Use the bracketed second paragraph only if there is an issue of intoxication on the part of both a defendant driver of a motor vehicle and the person injured or killed. It may aid juror comprehension to use a more fact-specific term than “occurrence” in the second paragraph.
Use bracketed “marijuana” if the court determines that it should be used rather than or in addition to “any drug.”
Use other bracketed material as applicable. Use the person's name instead of “person injured” or “person killed” whenever doing so will make the instruction easier to understand.
COMMENT
RCW 5.40.060.
RCW 5.40.060(1), enacted as part of the 1986 Tort Reform Act, states the general rule that it is a complete defense in a personal injury or wrongful death action that the person injured or killed “was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault.” RCW 5.40.060(1) provides in part that the standard for determining whether the person injured or killed was under the influence of intoxicating liquor or any drug is the same standard set forth in the statute on driving while under the influence, RCW 46.61.502.
Prior to 2013, RCW 46.61.502 provided that a person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a motor vehicle within this state while the person is either under the influence or affected by intoxicating liquor or any drug or under the combined influence of or affected by any intoxicating liquor and any drug. In 2013, RCW 46.61.502 was amended to add “marijuana” to this list separately from “any drug.” RCW 5.40.060 was not amended similarly. Therefore, the court will need to determine whether the jury should be instructed with regard to marijuana when the evidence supports a finding that the person injured or killed was under the influence of marijuana as defined in RCW 46.61.502.
In 1994, the Legislature added RCW 5.40.060(2), creating an exception to that general rule:
In an action for damages for personal injury or wrongful death that is brought against the driver of a motor vehicle who was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and whose condition was a proximate cause of the injury or death, [RCW 5.40.060(1)] does not create a defense against the action notwithstanding that the person injured or killed was also under the influence so long as such person's condition was not a proximate cause of the occurrence causing the injury or death.
By enacting RCW 5.40.060(2), the Legislature effectively abrogated the holding of Geschwind v. Flanagan, 121 Wn.2d 833, 854 P.2d 1061 (1993), that RCW 5.40.060 can provide a complete defense in an action against an intoxicated driver for injuries to an intoxicated passive passenger.
RCW 5.40.060 applies only to cases based on fault as defined in RCW 4.22.015 and, thus, is inapplicable in an intentional tort case. Morgan v. Johnson, 137 Wn.2d 887, 896, 976 P.2d 619 (1999).
[Current as of September 2018.]
End of Document