WPI 310.02 Reasonableness Defense to Consumer Protection Act Claim

Use with WPI 310.01 (Elements of a Violation of the Consumer Protection Act), if appropriate.

Use the instruction cautiously. It does not apply in every case, and jurors may have difficulty integrating it with the other instructions on this claim. See the Comment below.

This instruction is based on RCW 19.86.920.

RCW 19.86.920 does not specify who bears the burden of proving reasonableness. The statute gives no indication whether reasonableness is an affirmative defense, a simple defense, or something else. Case law refers to reasonableness as a defense but has not addressed the burden of proof. See Travis v. Wash. Horse Breeders Ass'n, 111 Wn.2d 396, 408–09, 759 P.2d 418 (1988); Stephens v. Omni Ins. Co., 138 Wn.App. 151, 170, 159 P.3d 10 (2007), affirmed on different issues, Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 204 P.3d 885 (2009); Cox v. Lewiston Grain Growers, 86 Wn.App. 357, 373, 936 P.2d 1191 (1997). Because of this uncertainty, the instruction does not include a burden of proof. Absent a burden of proof, jurors may find it difficult to fit the instruction into the framework of the plaintiff's required elements.

Jurors may also have difficulty balancing the policy interests involved in this instruction. In most cases, this difficulty can be avoided because the issue of reasonableness will be decided by the judge as a matter of law during pre-trial motions. See, e.g., Univ. of Wash. v. Gov't Emps. Ins. Co., 200 Wn.App. 455, 404 P.3d 559 (2017). In some cases, however, material issues of fact will exist that need to be submitted to the jury. See Stephens, 138 Wn.App. at 170; Travis, 111 Wn.2d at 408–09.

Defenses to the CPA must be read in conjunction with the language in RCW 19.86.920 directing courts to liberally construe the CPA. When the Legislature calls for a statute to be liberally construed, its exemptions must be narrowly confined. Vogt v. Seattle-First Nat'l Bank, 117 Wn.2d 541, 552, 817 P.2d 1364 (1991).

A number of statutes that contain an “unfair trade or practice” and “public interest” declaration also contain a declaration that a violation “is not reasonable in relation to the development and preservation of business.” See, e.g., RCW 19.170.010(2) (advertising prizes and promotions); RCW 46.71.070 (automotive repair); RCW 19.182.150 (Fair Credit Reporting Act); RCW 49.60.030(3) (Law Against Discrimination). For a list of statutes containing declarations relevant to the CPA, see Appendix H to these instructions. See also the list of cross-referenced statutes in the Code Reviser's notes at the beginning of RCW Chapter 19.86 (http://app.leg.wa.gov/RCW/default.aspx?cite=19.86).