WPI 45.21 Special Verdict Form—Personal Injury/ Wrongful Death—Single Defendant—No Contributory...

Use this special verdict form for personal injury or wrongful death actions if there is a single defendant, there is no contributory negligence or assumption of risk, and there are other entities that have been identified as allegedly being at fault for the plaintiff's damages.

Question 3 in this special verdict form does not separate any particular elements of damages. If the parties need to have the jury separately itemize damages, such as for past economic, future economic, and noneconomic damages, then refer to WPI 45.20 (Special Verdict Form—Personal Injury/Wrongful Death—Single Defendant—No Contributory Negligence—No “Empty Chairs”—Separate Damage Elements) and the corresponding sections of that instruction's Note on Use and Comment.

Use WPI 1.11 (Concluding Instruction—For Special Verdict Form) with this verdict form.

Use WPI 41.04 (Fault to be Apportioned) and WPI 21.10 (Burden of Proof—Entities Not Party to the Action) with this verdict form.

Use bracketed material as applicable.

RCW 4.22.070 and 4.56.260.

RCW 4.22.070 requires the apportionment of damages in all actions involving the fault of more than one entity. Pursuant to the statute, the trier of fact shall determine the percentage of the total fault that is attributable to every entity that caused the plaintiff's damages. “Entities” include the plaintiff or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities released by the plaintiff, entities immune from liability to the plaintiff, and entities with any other individual defense against the plaintiff, but “entities” do not include entities immune from liability under workers' compensation statutes. Judgment is then entered against each defendant (unless a defendant is immune from liability or has prevailed on an individual defense) in an amount that represents the defendant's proportionate share of the plaintiff's total damages. The liability of each defendant is several unless one of the exceptions outlined in the statute apply. See the Comment to WPI 41.04 (Damages to be Apportioned).

The verdict form uses the term “non-party” rather than the statutory term “entity.” The WPI Committee believes “non-party” is easier for jurors to understand.

If a verdict or award for future economic damages is at least one hundred thousand dollars, RCW 4.56.260 requires the court, at the request of a party, to enter a judgment providing for the periodic payment in whole or in part of the future economic damages.

If there is an injury claim by a married person, and the spouse or the marital community is joined as plaintiff, see the Comment to WPI 30.01.01 (Measure of Economic and Noneconomic Damages—Personal and Property—No Contributory Negligence). It may be necessary to revise the verdict form to set forth separately the items of damages claimed by each spouse and the marital community.

In Adcox v. Children's Orthopedic Hospital & Medical Center, 123 Wn.2d 15, 25–26, 864 P.2d 921, 928 (1993), the court stated:

In Lahmann v. Sisters of St. Francis, 55 Wn.App. 716, 723–24, 780 P.2d 868 (1989), the court found that a special verdict form containing separate interrogatories as to negligence and proximate cause was “proper.” The court stated that the factors for considering the adequacy of special interrogatories to the jury are: “(1) whether, when read as a whole and in conjunction with the general charge the interrogatories adequately presented the contested issues to the jury; (2) whether the submission of the issues to the jury was ‘fair’; and (3) whether the ‘ultimate questions of fact’ were clearly submitted to the jury.” Lahmann v. Sisters of St. Francis, 55 Wn.App. at 723.

In both Lahmann and Gjerde v. Fritzsche, 55 Wn.App. 387, 393–94, 777 P.2d 1072 (1989), the court discussed the importance of objecting to inconsistent findings or verdicts. Lahmann v. Sisters of St. Francis, 55 Wn.App. at 722–23. The failure to object to inconsistent findings or to an inconsistent verdict before the jury is discharged waives any objection on appeal. Lahmann v. Sisters of St. Francis, 55 Wn.App. at 723; Gjerde v. Fritzsche, 55 Wn.App. at 393–94.

In Nania v. Pacific Northwest Bell Telephone, 60 Wn.App. 706, 806 P.2d 787 (1991), none of the parties objected to a special verdict form proposed by one of the defendants that separated the issues of negligence and proximate cause as to each defendant and the plaintiff. Nania v. Pacific Northwest Bell Telephone, 60 Wn.App. at 708. The jury apportioned damages inconsistently with its answers to the negligence and proximate cause questions. Nania v. Pacific Northwest Bell Telephone, 60 Wn.App. at 708. The defendant who had proposed the special verdict form argued on appeal that the verdict form was not defective but that the case should be remanded for a new trial because the jury's answers were irreconcilably inconsistent. Nania v. Pacific Northwest Bell Telephone, 60 Wn.App. at 708.

The court found that although the apportionment of damages was arguably inconsistent with the jury's answers to the negligence and proximate cause questions, the answers to these questions were not inconsistent with each other. Nania v. Pacific Northwest Bell Telephone, 60 Wn.App. at 709. Therefore, the jury's apportionment of damages was “surplusage” and the trial court correctly entered judgment based upon the jury's findings of proximate cause. Nania v. Pacific Northwest Bell Telephone, 60 Wn.App. at 709. The court also noted that the same result was required by the doctrine of invited error. Nania v. Pacific Northwest Bell Telephone, 60 Wn.App. at 709.

See the Comment to WPI 45.20 (General Verdict Forms—Personal Injury/Wrongful Death—Single Defendant—No Contributory Negligence—No “Empty Chairs”—Separate Damage Elements), for a discussion concerning the separation of damages following Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711, 780 P.2d 260 (1989).

See the Comment to WPI 41.04 (Fault to be Apportioned), for cases that discuss apportionment of damages under RCW 4.22.070.