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WPI 41.04 Fault to Be Apportioned

6 WAPRAC WPI 41.04Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 41.04 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part V. Multiple Parties and Pleadings—Forms of Verdicts

Chapter 41. Multiple Parties and Pleadings

WPI 41.04 Fault to Be Apportioned

If you find that more than one entity was negligent, you must determine what percentage of the total negligence is attributable to each entity that proximately caused the [injury] [damage] to the plaintiff. The court will provide you with a special verdict form for this purpose. Your answers to the questions in the special verdict form will furnish the basis by which the court will apportion damages, if any.

Entities may include the defendant(s), [the plaintiff(s)] [and] [the person(s) injured] [the person(s) incurring property damage] [third-party defendant(s)] [entity or entities not party to this action].

NOTE ON USE

Use for all actions involving the fault of more than one entity.

Use WPI 21.10 (Burden of Proof—Entities Not Party to the Action) with this instruction, if entities not party to the action have been identified as probably causing the plaintiff's injury or damage.

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

For a case involving nondelegable duty, see WPI 12.09.

Use bracketed material as applicable.

COMMENT

Statutory background. RCW 4.22.070(1), first enacted as part of the 1986 Tort Reform Act, states in part:

In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages, except entities immune from liability to the claimant under Title 51 RCW. The sum of the percentages of the total fault attributed to at-fault entities shall equal one hundred percent. The entities whose fault shall be determined include the claimant or person suffering personal injury or incurring property damage, defendants, third party defendants, entities released by the claimant, entities with any other individual defense against the claimant, and entities immune from liability to the claimant, but shall not include those entities immune from liability to the claimant under Title 51 RCW. Judgment shall be entered against each defendant except those who have been released by the claimant or are immune from liability to the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party's proportionate share of the claimant's total damages.

Welch v. Southland, 134 Wn.2d 629, 634–37, 952 P.2d 162 (1998), held that the definition of fault found in RCW 4.22.015 applies when apportioning total fault pursuant to RCW 4.22.070.

RCW 4.22.015 defines fault as including acts or omissions that are in “any measure negligent or reckless toward the person or property of the actor or others.” RCW 4.22.015 further requires that there be a causal relation between conduct and damages before fault attaches. By incorporating the terms “negligence” and “proximate cause,” this instruction reflects that both the definition of fault and the causal relationship requirement set forth in RCW 4.22.015 are applicable to RCW 4.22.070(1).

RCW 4.22.070(1) further provides that the liability of each defendant shall be several unless a party was acting in concert with another party or person (see WPI 50.20 et seq.), or when a person was acting as an agent or servant of the party, or the trier of fact determines the claimant or party suffering bodily injury or incurring property damages was not at fault. If it is determined that the claimant or the person injured or damaged was not at fault, the defendants against whom judgment is entered are jointly and severally liable for the sum of their proportionate shares of the claimant's total damages.

Actions re: hazardous or solid waste disposal sites exempt. RCW 4.22.070 does not apply to actions relating to hazardous or solid waste disposal sites, actions arising from the tortious interference with contracts or business relations, or actions arising from the manufacture or marketing of a fungible product in a generic form which contains no clearly identifiable shape, color, or marking. RCW 4.22.070(3).

Immunity. Shelton v. Azar, Inc., 90 Wn.App. 923, 929–31, 954 P.2d 352 (1998), held that under RCW 4.22.070 a trier of fact may not assign fault to an entity immune from liability under the exclusive remedy provisions of the Industrial Insurance Act. A similar result was reached in Thoen v. CDK Construction Services, Inc., 13 Wn.App.2d 174, 466 P.3d 261 (2020), where the Court of Appeals held that the trier of fact could not assign fault to a subcontractor who was immune from liability under the Industrial Insurance Act.

Gilbert H. Moen Co. v. Island Steel Erectors, Inc., 128 Wn.2d 745, 912 P.2d 472 (1996), held that a general contractor can be indemnified by the subcontractor to the extent of the subcontractor's negligence for payments required to be made for injuries to the subcontractor's employee pursuant to an indemnification agreement meeting the requirements of RCW 4.24.115(1)(b), provided that the subcontractor expressly waives immunity under industrial insurance, Title 51, and such waiver was mutually negotiated by the parties. Accord, Vargas v. Inland Wash. LLC, 194 Wn.2d 720, 742–43, 452 P.3d 1205 (2019).

For a discussion of the method of apportioning damages under RCW 4.22.070 when there is a defendant who settles or a defendant who is immune from judgment, see Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 294, 840 P.2d 860 (1992); Gerrard v. Craig, 122 Wn.2d 288, 857 P.2d 1033 (1993).

Workplace safety. Washington courts have held that property owners, subcontractors, and general contractors may have non-delegable duties to provide a safe workplace, in addition to “direct” and “vicarious” liability for work site accidents. Particular care should be taken in these circumstances to instruct the jury as to common law and statutory duties, proximate causation, and allocation of fault as may be appropriate under the facts of a given case. See, e.g., Vargas, 194 Wn.2d at 730–31 (general contractor); Afoa v. Port of Seattle, 191 Wn.2d 110, 115, 421 P.3d 903 (2018) (property owner); Thoen, 13 Wn.App 2d 174 (general contractor). See discussions in WPI 50.11 (Independent Contractor—Definition) and WPI 12.09 (Nondelegable Duties).

For further discussion, see DeWolf & Allen, 16 Washington Practice, Tort Law and Practice § 4:15 (5th ed).

Raising the allocation issue. In Adcox v. Children's Orthopedic Hospital and Medical Center, 123 Wn.2d 15, 25–26, 864 P.2d 921 (1993), the court stated:

RCW 4.22.070 is not self-executing. It does not automatically apply to each case where more than one entity could theoretically be at fault. 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.

See also Henderson v. Tyrrell, 80 Wn.App. 592, 910 P.2d 522 (1996).

Under RCW 4.22.070(1), any party to a proceeding can assert that another person is at fault. Adcox, 123 Wn.2d at 25; Mailloux v. State Farm Mut. Auto. Ins. Co., 76 Wn.App. 507, 511, 887 P.2d 449 (1995). Only the plaintiff, however, can assert that another person is liable to the plaintiff. Mailloux, 76 Wn.App. at 511. If no one proves fault, the other person is neither at fault nor liable to the plaintiff. Adcox, 123 Wn.2d at 25–26; Mailloux, 76 Wn.App. at 511. If the plaintiff proves that a party's fault is a proximate cause of the plaintiff's damages, the party at fault is also liable to the plaintiff, and judgment is entered as set forth in the statute. Mailloux, 76 Wn.App. at 511–12.

If a party other than the plaintiff proves fault that is a proximate cause of the plaintiff's damages, the person at fault is not liable to the plaintiff—the plaintiff has made no claim against him or her, but his or her fault nevertheless operates to reduce the proportionate share of damages that the plaintiff can recover from those against whom the plaintiff has claimed. Mailloux, 76 Wn.App. at 512. A person is not liable to the plaintiff, much less jointly and severally, if he or she has not been named by the plaintiff. Mailloux, 76 Wn.App. at 511.

Single defendant. In Anderson v. City of Seattle, 123 Wn.2d 847, 873 P.2d 489 (1994), the court held that, in an action in which the claimant or damaged party is not at fault, joint and several liability does not arise under RCW 4.22.070(1)(b) unless two or more defendants have a final judgment entered against them. If a final judgment is entered in such an action against a single defendant, then the defendant is severally liable for its proportionate share of fault regardless of whether fault is apportioned among others. Anderson, 123 Wn.2d at 852; see also Kottler v. State, 136 Wn.2d 437, 963 P.2d 834 (1998).

Children. In Price v. Kitsap Transit, 125 Wn.2d 456, 886 P.2d 556 (1994), the court held that children under six years of age are incapable of fault as that term is used in RCW 4.22.070(1) and are not entities to whom fault may be apportioned under the statute. In Smelser v. Paul, 188 Wn.2d 648, 398 P.3d 1086 (2017), the Washington Supreme Court held that no tort action exists under Washington law for negligent supervision of a child by a parent. Therefore, an award to the parents for injury to their child could not be offset by the jury's apportionment of 50 percent fault to the father for negligent supervision. Where no tort exists, no legal duty could be breached and no fault of the parent could be attributed or apportioned under RCW 4.22.070(1). Smelser, 188 Wn.2d at 656.

Intentional acts. In Welch v. Southland Corp., 134 Wn.2d 629, 952 P.2d 162 (1998), the court held that intentional acts are not included in the statutory definition of fault. Therefore, a negligent tortfeasor cannot apportion liability to an intentional tortfeasor. Tegman v. Accident & Med. Investigations, Inc., 150 Wn.2d 102, 111–19, 75 P.3d 497 (2003); Welch, 134 Wn.2d at 634–37. Tegman requires that a jury segregate damages caused by intentional tortfeasors from those caused by negligent tortfeasors. Tegman, 150 Wn.2d at 115–17. An intentional tortfeasor can still be found to be the sole proximate cause of an injury or event. For further discussion of Tegman and related issues, see the Comment to WPI 15.04 (Negligence of Defendant Concurring with Other Causes).

In Porter v. Kirkendoll, 194 Wn.2d 194, 208–09, 449 P.3d 627 (2019), the Washington Supreme Court held that timber trespass is not an intentional tort. Strict liability applies to timber trespass, including a right to contribution under RCW 4.22.015.

Entities not identified in statute. In In re Arbitration of Fortin, 82 Wn.App. 74, 914 P.2d 1209 (1996), overruled on other grounds by Price v. Farmers Insurance Company of Washington, 133 Wn.2d 490, 946 P.2d 388 (1997), the court, citing RCW 4.22.070(1), held that the Legislature did not intend to limit the attribution of fault to only those entities specifically identified in the statute. The court in Fortin further concluded that phantom drivers are entities to which fault may be attributed. Fortin, 82 Wn.App. at 85.

For discussions of various issues arising under RCW 4.22.070, see generally Estes, Contribution, Indemnification, and Subrogation after Washington's Tort Reform Acts, 21 Seattle U. L.Rev. 69 (1997); Sisk, Comparative Fault and Common Sense, 30 Gonzaga L. Rev. 29 (1994); Weaver, Jury Instructions on Joint and Several Liability in Washington State, 67 Wash. L. Rev. 457 (1992); Peck, Washington's Partial Rejection and Modification of the Common Law Rule of Joint and Several Liability, 62 Wash. L. Rev. 233 (1987).

[Current as of October 2021.]

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