WPI 60.03 Violation of Statute, Ordinance, Administrative Rule, or Internal Governmental Policy...
6 WAPRAC WPI 60.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 60.03 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part VII. Statutory Violations
Chapter 60. Statutory Violations
WPI 60.03 Violation of Statute, Ordinance, Administrative Rule, or Internal Governmental Policy—Evidence of Negligence
The violation, if any, of a [statute] [ordinance] [administrative rule] [internal governmental policy] is not necessarily negligence, but may be considered by you as evidence in determining negligence.
[Such a violation may be excused if it is due to some cause beyond the violator's control, and that ordinary care could not have guarded against.]
NOTE ON USE
Use this instruction if the statute, ordinance, or administrative rule violated does not relate to electrical fire safety, the use of smoke alarms, sterilization of needles (and related activities), or driving while under the influence. For such violations, use WPI 60.01.01 (Violation of Statute, Ordinance, or Administrative Rule—Negligence Per Se).
If a child has violated a statute, ordinance or administrative rule, see WPI 60.04 (Standard of Conduct for Child—Violation of Statute, Ordinance, or Administrative Rule).
Use bracketed material as applicable.
Effect of RCW 5.40.050. RCW 5.40.050 provides, in part: “A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence …” To be consistent with other instructions, the WPI Committee chose to use the phrase “violation of” rather than the phrase “breach of duty imposed by” used in RCW 5.40.050.
In order for a statute, ordinance, or administrative rule to be admissible on the issue of negligence, the enactment must satisfy the test set forth in Restatement (Second) of Torts section 286 (1965). See Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 474–75, 951 P.2d 749 (1998). Pursuant to section 286, the purpose of the legislative enactment or administrative regulation must be found by the trial court exclusively or in part:
- (a) to protect a class of persons which includes the one whose interest is invaded, and
- (b) to protect the particular interest which is invaded, and
- (c) to protect that interest against the kind of harm which has resulted, and
- (d) to protect that interest against the particular hazard from which the harm results.
Restatement (Second) of Torts § 286 (1965).
In Estate of Kelly v. Falin, 127 Wn.2d 31, 896 P.2d 1245 (1995), the court held that a violation of a criminal statute constitutes evidence of negligence only if the statute was intended to protect both the person bringing the action and the particular interest involved.
The violation of a statute, ordinance, or administrative rule is actionable only if it was a proximate cause of the accident or injury in question. Ward v. Zeugner, 64 Wn.2d 570, 392 P.2d 811 (1964). If there is a prima facie causal connection and if the requirements of Restatement (Second) of Torts section 286 (1965) are met, the proximate cause question is for the jury. Kness v. Truck Trailer Equip. Co., 81 Wn.2d 251, 501 P.2d 285 (1972).
Regarding the bracketed sentence, see the Comment to WPI 60.01.01 (Violation of Statute, Ordinance, or Administrative Rule—Negligence Per Se).
In Hansen v. Friend, 118 Wn.2d 476, 824 P.2d 483 (1992), a case filed after the effective date of the 1986 Tort Reform Act, the court held that RCW 66.44.270(1), which makes it a criminal act for any person to furnish liquor to a minor, also imposes a duty of care on social hosts not to serve liquor to minors. The court, citing RCW 5.40.050, stated that if a social host breaches his or her duty not to furnish liquor to a minor, the trier of fact may consider the breach as evidence of negligence, rather than negligence per se. The Hansen court cited WPI 60.03 with approval for the proposition that a statutory violation is not negligence if the violation is due to some cause beyond the violator's control, and ordinary care could not have guarded against the violation. Hansen, 118 Wn.2d at 483.
It may be reversible error not to instruct on a statutory violation. In Trueax v. Ernst Home Center, Inc., 70 Wn.App. 381, 853 P.2d 491 (1993), the court held that it was reversible error not to give a proposed instruction that all signs must have vertical clearance above the sidewalk grade of at least ten feet because the proposed instruction correctly stated the law under the applicable city ordinance. The court noted that while violation of the ordinance was not negligence per se, it was evidence of negligence under RCW 5.40.050, and the failure to give the proposed instruction did not allow the plaintiff to argue her theory of the case to the jury.
The Washington Supreme Court ultimately reversed the Court of Appeals in Trueax on the technical grounds that trial counsel's objection had not cited the correct applicable statute. Trueax v. Ernst Home Ctr., Inc., 124 Wn.2d 334, 878 P.2d 1208 (1994); see also Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 96 P.3d 386 (2004) (reversible error not to instruct on RCW 66.44.200—the commercial host statute—in a case in which the plaintiff was injured by allegedly over-served driver, as persons injured by intoxicated drivers are within the class of persons the statute was designed to protect). But see Quynn v. Bellevue Sch. Dist., 195 Wn.App. 627, 383 P.3d 1053 (2016) (administrative definition of harassment included in the statute applicable to school districts did not apply when that claim was pled in common law; the instruction based on RCW 28A.300.285(1),(2) was in error).
A court cannot find negligence as a matter of law merely because a statutory duty was violated without justification or excuse; rather, the court must determine whether, in light of all the evidence, reasonable minds could differ on whether the defendant used ordinary care. Mathis v. Ammons, 84 Wn.App. 411, 928 P.2d 431 (1996).
In Yurkovich v. Rose, 68 Wn.App. 643, 653, 847 P.2d 925 (1993), the trial court directed a verdict of negligence against the defendant, reserving causation for the jury. Finding no abuse of discretion, the appellate court stated:
We do not interpret RCW 5.40.050 as meaning that a trial court cannot under any circumstances find negligence as a matter of law where the violations of statutes, ordinances, or administrative rules are involved. The statute eliminates evidence of a violation alone being used to support a finding of negligence per se. It permits a defendant to explain the circumstances and show excuse or justification for the apparent violation.
Yurkovich, 68 Wn.App at 653.
Violation of internal governmental policy. In Joyce v. Department of Corrections, 155 Wn.2d 306, 119 P.3d 825 (2005), the Supreme Court concluded that the trial court properly admitted an internal governmental policy directive concerning the supervision of defendants by the Department of Corrections as evidence of negligence under the prior statute. However, failure to give an instruction similar to WPI 60.03 was reversible error as the internal policy directive was merely evidence of negligence and not conclusive evidence of negligence. Joyce, 155 Wn.2d at 324.
Violation of private industry standards. Standards adopted by private parties or trade associations may be admissible on the issue of negligence when shown to be reliable and relevant, but are not conclusive evidence of negligence. See Andrews v. Burke, 55 Wn.App. 622, 779 P.2d 740 (1989) (violation of a hospital regulation does not amount to negligence per se).
In a case involving private industry standards, practitioners will need to consider whether the pattern instruction should be used with appropriate modifications. Jurors may be less likely to be misled into thinking that violation of a private industry standard is per se negligence than they are in cases involving governmental standards. Care should be taken to avoid a judicial comment on the evidence when using this instruction for private industry standards.
[Current as of February 2021.]
Westlaw. © 2022 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
|End of Document|