WPI 110.10 Assumption of Risk—Contributory Negligence

Use the bracketed language relating to assumption of risk or contributory negligence as applicable. Use the language on assumption of risk only when there is substantial evidence that plaintiff appreciated the specific danger that caused the injury. If the language on contributory negligence is used, also use WPI 10.01 (Negligence—Adult—Definition) with this instruction. Use one of the instructions from WPI Chapter 15 defining “proximate cause” with this instruction.

Use either WPI 110.31.01 (Special Verdict Form—Product Liability—Assumption of Risk—Contributory Negligence—No Empty Chairs) or WPI 110.31.02 (Special Verdict Form—Product Liability—Assumption of Risk—Contributory Negligence—Empty Chairs) with this instruction.

If there are affirmative defenses claiming other kinds of fault on the part of the plaintiff, such legal theories must be defined in an instruction and either added to or substituted for the terms “assumption of risk” or “contributory negligence” in this instruction.

RCW 4.22.015 and RCW 4.22.005.

RCW 4.22.015 defines fault as including “acts or omissions, including misuse of a product that are in any measure negligent or reckless.” The term also includes “breach of warranty, unreasonable failure to avoid injury or to mitigate damages.”

RCW 4.22.005 provides in part that “any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery.”

Contributory negligence. The contributory fault doctrine expressed in RCW 4.22.015 applies to a product liability action regardless of whether the action is based on negligence or strict liability. Lundberg v. All-Pure Chem. Co., 55 Wn.App. 181, 777 P.2d 15 (1989). Accordingly, contributory negligence may be raised as a defense under the Washington Product Liability Act (WPLA) even though the defense was not available under the pre-existing case law. See Seay v. Chrysler Corp., 93 Wn.2d 319, 609 P.2d 1382 (1980).

The instruction's definition of contributory negligence parallels the general pattern instruction on contributory negligence, WPI 11.01.

Assumption of risk. Prior to the adoption of the WPLA, the assumption of risk doctrine applied to product liability cases. See Klein v. R.D. Werner Co., 98 Wn.2d 316, 654 P.2d 94 (1982); Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 570 P.2d 438 (1977); Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975). It appears that this doctrine continues to apply under the WPLA. See RCW 7.72.020(1) (providing that laws pre-dating the WPLA are modified only to the extent set forth in that act).

The instruction is drafted in terms of implied primary, rather than express, assumption of risk. The language is adapted from the generally applicable instruction on implied primary assumption of risk, WPI 13.03. If a case involves allegations that a consumer expressly assumed a risk, such as by a contractual provision, the instruction will need to be modified using language from WPI 13.04 (Assumption of Risk—Express).

For further discussion concerning assumption of risk, see WPI Chapter 13 (Assumption of Risk).