WPI 70.02.06 Right of Way—Deception Doctrine
6 WAPRAC WPI 70.02.06Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 70.02.06 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part VIII. Motor Vehicles
Chapter 70. Motor Vehicles
WPI 70.02.06 Right of Way—Deception Doctrine
The right of way statute in Instruction does not apply if:
(1) the driver who had the right of way wrongfully, negligently, or unlawfully [operated his or her vehicle] [acted] in a manner that would deceive a reasonably careful driver who did not have the right of way so as to cause that driver to proceed on the assumption that there was a fair margin of safety; and
(2) the driver who did not have the right of way was in fact so deceived.
NOTE ON USE
Use this instruction with WPI 70.02 (Right of Way—Uncontrolled Intersection), WPI 70.02.01 (Right of Way—Left Turn), WPI 70.02.02 (Right of Way—Stop Sign), WPI 70.02.03 (Right of Way—Yield Sign), WPI 70.02.04 (Right of Way—Emerging from Alley, Driveway, or Building in Business or Residence District), or WPI 70.02.05 (Right of Way—Entering Street or Highway from Private Road or Driveway), only if the evidence in the case warrants it.
This instruction may need modification in order to fit the specific right of way and the specific fact pattern. If under the facts of the case, it is alleged that a pedestrian who had the right of way deceived the disfavored driver into proceeding, the language of this instruction should be modified accordingly.
The second paragraph of WPI 60.03 (Violation of Statute, Ordinance, Administrative Rule, or Internal Governmental Policy—Evidence of Negligence), addressing when a violation of law is excused, should be used with this instruction.
COMMENT
The deception doctrine has limited applicability. Because of this, the instruction should be given “only when the deception is tantamount to an entrapment.” Oliver v. Harvey, 31 Wn.App. 279, 283, 640 P.2d 1087 (1982). The doctrine applies “when the disfavored driver sees the favored vehicle and is deceived by the actions of the driver of that vehicle … One cannot be deceived by that which he does not see ….” Oliver, 31 Wn.App. at 283 (quoting Tobias v. Rainwater, 71 Wn.2d 845, 853, 431 P.2d 156 (1967)). A disfavored driver may also be deceived by a clear stretch of road. Oliver, 31 Wn.App. at 284.
For cases in which the deception doctrine was held to apply, see Oliver, 31 Wn.App. 279; Mendelsohn v. Anderson, 26 Wn.App. 933, 614 P.2d 693 (1980); Axness v. Edwards, 9 Wn.App. 780, 515 P.3d 174 (1980).
For cases in which the deception doctrine was held not to apply, see Kerlik v. Jerke, 56 Wn.2d 575, 354 P.2d 702 (1960); Mossman v. Rowley, 154 Wn.App. 735, 229 P.3d 812 (2009); State v. Souther, 100 Wn.App. 701, 998 P.2d 350 (2000); Wood v. City of Bellingham, 62 Wn.App. 61, 813 P.2d 142 (1991); Hammel v. Rife, 37 Wn.App. 577, 682 P.2d 949 (1984).
[Current as of February 2021.]
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