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WPI 21.10 Burden of Proof—Entities Not Party to the Action

6 WAPRAC WPI 21.10Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 21.10 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part III. Issues—Burden of Proof
Chapter 21. Burden of Proof
WPI 21.10 Burden of Proof—Entities Not Party to the Action
Before a percentage of negligence may be attributed to any entity that is not party to this action, the defendant has the burden of proving each of the following propositions:
First, that the entity was negligent; and
Second, that the entity's negligence was a proximate cause of the [injury] [damage] to the plaintiff.
Use this instruction if evidence has been presented to the jury that an entity who is not a party to the action was negligent and that such entity's negligence was a proximate cause of the plaintiff's injury or damage.
Use WPI 41.04 (Fault to Be Apportioned) with this instruction.
Use bracketed material as applicable.
With this instruction, use either verdict form WPI 45.21 (Special Verdict Form—Personal Injury/Wrongful Death—Single Defendant—No Contributory Negligence—“Empty Chairs”), WPI 45.23 (Special Verdict Form—Personal Injury/Wrongful Death—Single Defendant—Contributory Negligence—“Empty Chairs”), WPI 45.25 (Special Verdict Form—Personal Injury/Wrongful Death—Multiple Defendants—No Contributory Negligence—“Empty Chairs”), or WPI 45.27 (Special Verdict Form—Personal Injury/Wrongful Death—Multiple Defendants—Contributory Negligence—“Empty Chairs”).
RCW 4.22.070(1).
The statute provides for the apportionment of fault to all entities causing the plaintiff's damages, including “entities released by the claimant, entities with any other individual defense against the claimant, and entities immune from liability to the claimant.”
CR 12(i) provides that:
Whenever a defendant or a third party defendant intends to claim for purposes of RCW 4.22.070(1) that a nonparty is at fault, such claim is an affirmative defense which shall be affirmatively pleaded by the party making the claim. The identity of any nonparty claimed to be at fault, if known to the party making the claim, shall also be affirmatively pleaded.
See also CRLJ 12(i).
The statute does not specify the measure of proof required to establish the fault of entities not party to the action or who has the burden of proving the fault of nonparty entities. This instruction assumes that the measure of proof required to prove a nonparty entity's fault is a preponderance of the evidence. The instruction also assumes that the burden of proving a nonparty entity's fault will fall on the defendant alleging such fault because proof of such fault will reduce the defendant's proportionate share of liability for the plaintiff's damages. As the court stated in Adcox v. Children's Orthopedic Hosp. and Medical Center, 123 Wn.2d 15, 25–26, 864 P.2d 921 (1993):
Either the plaintiff or the defendant must present evidence of another entity's fault to invoke the statute's allocation procedure. Without a claim that more than one party is at fault, and sufficient evidence to support that claim, the trial judge cannot submit the issue of allocation to the jury. Indeed, it would be improper for the judge to allow the jury to allocate fault without such evidence. If the plaintiff signals an intention to present evidence of fault solely against one defendant, as in this case, it is incumbent upon the defendant to provide proof that more than one entity was at fault.
RCW 4.22.070(1) exempts from apportionment entities immune from liability under RCW Title 51 (Industrial Insurance Act). Also exempt from apportionment are employers under a federal workers' compensation act, the Longshore and Harbor Workers' Compensation Act. Esparza v. Skyreach Equipment, Inc., 103 Wn.App. 916, 936–41, 15 P.3d 188 (2000) (applying a federal pre-emption analysis to extend RCW 4.22.070(1)'s apportionment exemption to include entities immune under the federal act).
For additional discussion relating to RCW 4.22.070(1), see the Comment to WPI 41.04 (Fault to Be Apportioned).
[Current as of September 2018.]
End of Document