WPI 24.03 Presumptions—Rebuttable Mandatory—Which Only Affect the Burden of Going Forward With ...

This instruction is proper only for rebuttable mandatory presumptions that affect the burden of going forward with the evidence when the presumed fact has been challenged and it constitutes a jury question. It should therefore not be given if the court can rule, as a matter of law, either way on the presumed fact. The standard used by the trial court to determine, as a matter of law, a question of fact in such a case is the same as if the presumption, as a rule of law, was never involved, i.e., it is proper only if the evidence, and permissible inferences therefrom, viewed most favorably to the litigant against whom the determination is directed leaves no room for disagreement thereon among reasonable persons.

The bracketed phrase “if you find” should be used if the basic facts are also a jury question. The bracketed word “because” should be used if the basic facts are admitted or can otherwise be determined to exist as a matter of law. This instruction should ordinarily not be given if the presumption operates against the party who already has the burden of proof, such as the presumption of due care when the issue is contributory negligence.

This instruction is designed for a case in which the presumption involved is a Thayer or “bursting bubble” presumption, and the presumed facts have been met by contrary evidence of the opponent sufficient to raise a jury question. In the pristine version of the “bursting bubble” theory, any contrary evidence believed or not believed, destroys the presumption. There is no indication in the Washington opinions that this strict view of the “bursting bubble” theory has been adopted. A less strict view is that the bubble is burst by contradictory evidence introduced by the opponent if the jury could reasonably believe such evidence. This less strict view is incorporated in the instruction. If the presumption is in this way destroyed, no presumption instruction should be given. Washington authority on this type of presumption is not extensive. See Comment to WPI 24.02 (Presumptions—Rebuttable Mandatory—Which Only Affect the Burden of Going Forward with the Evidence (When Basic Facts Constitute A Jury Question, But Not Presumed Fact)).

Washington cases appear to hold that some presumptions when challenged by contrary evidence disappear from the case and the party relying on the presumption must carry on without it. Chaloupka v. Cyr, 63 Wn.2d 463, 387 P.2d 740 (1963) (bailment); Sprague v. Snug Harbor Marina, 13 Wn.App. 246, 534 P.2d 583 (1975) (presumption of unseaworthiness from unexplained sinking of vessel); Tire Towne v. G & L Serv. Co., 10 Wn.App. 184, 518 P.2d 240 (1973) (presumption of ownership arising from possession). The Court of Appeals has noted that:

In re Indian Trail Trunk Sewer Sys., 35 Wn.App. 840, 843, 670 P.2d 675 (1983) (citations omitted). If the presumption is identified as being of this type, it may be that no instruction should be given, except when the basic facts are controverted in a way that presents a jury question.

In other cases, the presumption may be of a type that, if the presumed fact is challenged by contrary evidence, is still passed to the jury to decide whether the challenge to the presumed fact is effective. See, e.g., Burrier v. Mutual Life Ins. Co., 63 Wn.2d 266, 272, 387 P.2d 58 (1963) (presumption against suicide); Nelson v. Schubert, 98 Wn.App. 754, 763, 994 P.2d 225 (2000) (presumption of death after person's seven-year absence); Luna de la Peunte v. Seattle Times Co., 186 Wash. 618, 628, 59 P.2d 753 (1936) (presumption of plaintiff's good character in defamation action).

Some presumptions are rebutted only if the contrary evidence is clear and convincing. See Malotte v. Gorton, 75 Wn.2d 306, 450 P.2d 820 (1969) (presumption that obligation incurred by spouse is community obligation); Grannum v. Berard, 70 Wn.2d 304, 422 P.2d 812 (1967) (so-called presumption of sanity and competency; presumption not overcome); In re Meagher's Estate, 60 Wn.2d 691, 375 P.2d 148 (1962) (presumption that, when will is rational on its face and executed in legal form, testator had testamentary capacity); Chesterfield v. Nash, 96 Wn.App. 103, 109–10, 978 P.2d 551 (1999) (presumption that property is jointly owned when acquired during meretricious relationship), reversed on other grounds, In re Marriage of Pennington, 142 Wn.2d 592, 14 P.3d 764 (2000).

The specific statement of the test of effective rebuttal evidence may vary somewhat. For example, Wakefield v. Wakefield, 59 Wn.2d 550, 368 P.2d 909 (1962) (presumption of gift only overcome by certain, definite, reliable and convincing evidence; presumption held rebutted). At times, the test goes beyond verbal variations. The presumption of a child's legitimacy closely approaches a conclusive presumption; the presumption can be overcome only by “evidence so strong and irresistible that no other conclusion can be made.” Stone v. Stone, 76 Wn.2d 586, 588, 458 P.2d 183 (1969).

There are case-law indications, although poorly communicated and badly intermixed with affirmative defense concepts, that some presumptions are rebutted by a preponderance of challenging evidence. See, e.g., Trotland v. New England Mut. Life Ins. Co., 1 Wn.App. 303, 304–05, 462 P.2d 244 (1969) (presumption against suicide); Selover v. Aetna Life Ins. Co., 180 Wash. 236, 38 P.2d 1059 (1934) (same).

For other presumptions, the quantum of evidence required to rebut the presumption is unclear, but there are nonetheless indications that the jury may determine whether the presumption is rebutted. Burrier v. Mut. Life Ins. Co., 63 Wn.2d 266, 281, 387 P.2d 58 (1963) (presumption against suicide; “the jury are the final arbiters”); Luna de la Peunte v. Seattle Times Co., 186 Wash. 618, 628, 59 P.2d 753 (1936) (“the court very properly left it to the jury”); Nelson v. Schubert, 98 Wn.App. 754, 763, 994 P.2d 225 (2000) (presumption of death after person's seven-year absence; “jurors are the final arbiters”); Trotland v. New England Mut. Life Ins. Co., 1 Wn. App. 303, 304–05, 462 P.2d 244 (1969) (presumption against suicide; rebuttal by a preponderance held sufficient; no indication of a lesser test).

An analysis that would separately consider the effect of a presumption directed against the party having the burden of proof is generally disfavored by the Washington courts. It is thought that so considering the presumption places a double burden on the party who already has the burden of proof. Peacock v. Piper, 81 Wn.2d 731, 735, 504 P.2d 1124 (1973) (refusal to recognize presumption that physician properly applied degree of skill and learning required of physicians, giving double burden as one reason for refusal); Graving v. Dorn, 63 Wn.2d 236, 241, 386 P.2d 621 (1963) (refusal to adopt rebuttable presumption of capacity of a minor between ages of 6 and 14 years, giving double burden as one reason for refusal); Mills v. Pacific County, 48 Wn.2d 211, 216–17, 292 P.2d 362 (1956); Hutton v. Martin, 41 Wn.2d 780, 787–88, 252 P.2d 581 (1953) (abolishing presumption of due care when there is an issue of contributory negligence); Lappin v. Lucurell, 13 Wn.App. 277, 534 P.2d 1038 (1975) (refusal to adopt presumption of gift from transfer of property by uncle to niece, giving double burden as one reason for refusal).