WPI 310.01 Elements of a Violation of the Consumer Protection Act
6A WAPRAC WPI 310.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 310.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XIV. Consumer Protection
Chapter 310. Consumer Protection Actions
WPI 310.01 Elements of a Violation of the Consumer Protection Act
(Insert name of plaintiff)claims that(name of defendant)has violated the Washington Consumer Protection Act. To prove this claim,(name of plaintiff)has the burden of proving each of the following propositions:
(1) That(name of defendant)engaged in an unfair or deceptive act or practice;
(2) That the act or practice occurred in the conduct of(name of defendant)'s trade or commerce;
(3) That the act or practice affects the public interest;
(4) That(name of plaintiff)was injured in either [its] [his] [her] business or [its] [his] [her] property; and
(5) That(name of defendant)'s act or practice was a proximate cause of(name of plaintiff)'s injury.
If you find from your consideration of all of the evidence that each of these propositions has been proved, your verdict should be for(name of plaintiff)[on this claim]. On the other hand, if any of these propositions has not been proved, your verdict should be for(name of defendant)[on this claim].
NOTE ON USE
Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of Evidence). Use this instruction with WPI 310.02 (Reasonableness Defense to Consumer Protection Act Claim), if appropriate.
If the first two or the first three propositions may be proved by violation of a statute (for example, a Washington statute that makes a violation of that statute a per se violation of the Consumer Protection Act), use WPI 310.03 (Per Se Violation of Consumer Protection Act).
For a definition of the first proposition, when a statutory violation is not alleged, use WPI 310.08 (Definition—Unfair or Deceptive Act or Practice). For an explanation of trade or commerce in the second proposition, use WPI 310.09 (Definition—Trade or Commerce).
Use optional WPI 310.06 (Injury in Consumer Protection Act Claim) if further explanation of “injured” in the fourth element is necessary or helpful.
For a discussion of causation, see the Comment to WPI 310.07 (Causation in Consumer Protection Act Claim).
COMMENT
In Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 787–93, 719 P.2d 531 (1986), the court set forth the five elements of a Consumer Protection Act claim: (1) an unfair or deceptive act or practice; (2) in trade or commerce; (3) public interest; (4) injury to business or property; and (5) causation.
The term “unfair or deceptive” is not otherwise defined in the Act. RCW 19.86.020. In many cases, however, the first element will be met by a statutory violation. See WPI 310.03 (Per Se Violation of Consumer Protection Act). Regarding the requirements of a factual proof, see the Comment to WPI 310.08 (Definition—Unfair or Deceptive Act). No intentional deception need be proved, only a capacity or tendency to deceive. State v. A.N.W. Seed Corp., 116 Wn.2d 39, 50, 802 P.2d 1353 (1991); Hangman Ridge, 105 Wn.2d at 785.
When the underlying facts are undisputed, the question whether the acts are likely to deceive—an objective inquiry—is a question of law. State v. Mandatory Poster Agency, Inc., 199 Wn.App. 506, 512, 398 P.3d 1271 (2017). However, whether such a deception has the capacity to reach a substantial portion of the public is a question of fact precluding summary judgment, unless the undisputed facts establish that capacity. Mandatory Poster Agency, 199 Wn.App. at 512.
With regard to unfairness, “an act or practice can be unfair without being deceptive.” Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 787, 295 P.3d 1179 (2013).
If it is undisputed that the “trade or commerce” element is satisfied, the parties should stipulate that the element is met or the court should so rule, and the jury should be so instructed. If there is an issue regarding this element, give instruction WPI 310.09 (Definition—Trade or Commerce).
The third element, “public interest,” is governed by RCW 19.86.093. The statutory language defining “public interest” is set forth in WPI 310.04 (Public Interest Element).
The “business or property” injury in the fourth element may need the additional explanation of optional WPI 310.06 (Injury in a Consumer Protection Act Claim).
The causation requirement in the fifth element is proximate causation. Indoor Billboard/Wash., Inc., v. Integra Telecom of Wash., Inc., 162 Wn.2d 59,170 P.3d 10 (2007); Wash. State Physicians Ins. Exch. & Ass'n. v. Fisons Corp., 122 Wn.2d 299, 314, 858 P.2d 1054 (1993). Causation is addressed in WPI 310.07 (Causation in Consumer Protection Act Claim).
These instructions are intended for “unfair or deceptive acts or practices” cases; they may not be suitable for “unfair methods of competition” cases. RCW 19.86.020. Compare Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 733 P.2d 208 (1987) (implied overruling on other grounds recognized in Matsyuk v. State Farm Fire & Cas. Co., 173 Wn.2d 643, 659, 272 P.3d 802 (2012)), with Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 738 P.2d 665 (1987) (differing as to whether Hangman Ridge should be applied to unfair competition cases).
The Consumer Protection Act must be liberally construed to protect the public. RCW 19.86.920. However, the CPA is not intended to prohibit acts or practices that are “reasonable in relation to the development and preservation of business.” RCW 19.86.920. See WPI 310.02 (Reasonableness Defense to Consumer Protection Act Claim) and its Comment.
[Current as of February 2021.]
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