WPI 30.01.01 Measure of Economic and Noneconomic Damages—Personal Injury—No Contributory Neglig...

See WPI Chapter 45 (Forms of Verdicts) for the appropriate verdict forms to be used with this instruction.

Use this instruction if there is no counterclaim and no issue of contributory negligence. Use WPI 30.02.01 (Measure of Economic and Noneconomic Damages—Personal Injury—Contributory Negligence—No Counterclaim) if there is an issue of contributory negligence.

Complete this instruction by inserting the appropriate elements of damages as directed in the instruction. The phrases inserted should reflect those elements of damages relevant to the action.

Delete the first two bracketed phrases of this instruction if there is a directed verdict or admitted liability. Use the third bracketed phrase if there are undisputed items of damages. If any of the bracketed phrases are deleted, practitioners may need to capitalize the first word that follows the deleted phrase.

In a case involving wanton misconduct, gross negligence, outrageous conduct, strict liability, or nuisance, substitute the particular term or term “wrongful conduct” for “negligence.”

If a cross-claim or third-party claim is asserted, the text of the instruction must be modified or WPI 41.05 (Counterclaim—Cross-Claim—Third-Party Claim) must be used, or both.

RCW 4.56.250.

Undisputed damages. In response to case law, the instruction states that jurors “must include” (rather than “should include”) undisputed damages in their verdict. See Nichols v. Lackie, 58 Wn.App. 904, 907, 795 P.2d 722 (1990) (jury failed to award the correct amount for undisputed special damages that were set forth in a damage instruction stating that the verdict “should include” designated special damage amounts). Jurors do not have discretion with respect to these items. Hawkins v. Marshall, 92 Wn.App. 38, 45, 962 P.2d 834 (1998); Nichols, 58 Wn.App. at 907.

Apportioning damages. The burden of proving the apportionment of damages between two negligent defendants rests with the defendants: “[O]nce a plaintiff has proved that each successive negligent defendant has caused some damage, the burden of proving allocation of those damages among themselves is upon the defendants; if the jury find[s] that the harm is indivisible, then the defendants are jointly and severally liable for the entire harm.” Cox v. Spangler, 141 Wn.2d 431, 443, 5 P.3d 1265 (2000); Phennah v. Whalen, 28 Wn.App. 19, 29, 621 P.2d 1304 (1980). For further discussion of apportioning damages, see WPI 41.04 (Fault to Be Apportioned).

Married co-plaintiffs. If there is a claim of injury by a married person, and the other spouse is joined as a plaintiff, the damage instruction and verdict forms should address the problem raised by Brown v. Brown, 100 Wn.2d 729, 675 P.2d 1207 (1984). Brown holds that recovery for an injury to a married person is the separate property of the injured spouse, except to the extent that the recovery compensates for lost wages that would have been community property, or an injury-related expense incurred. Brown, 100 Wn.2d at 730. Brown overruled the former case law that an injury recovery by a spouse is community property. Brown, 100 Wn.2d at 739. In order to properly reflect the law, the judgment for a particular item of tort recovery should be entered in favor of the spouse who owns that item of recovery or in favor of both as the case may be. Use of WPI 45.01 (General Verdict Forms—Single Plaintiff and Defendant) as though the marital community were a single plaintiff will no longer be sufficient. It may be necessary to set forth in WPI 30.01.01 the items of damage claimed by each spouse. The verdict form should direct the jury to make separate awards for the different items of damage involved so that proper judgments may be entered.