WPI 310.07 Causation in Consumer Protection Act Claim

Use this instruction to explain causation. If multiple causation is an issue, see the Comment below. Use bracketed material as applicable.

Use with WPI 24.05 (Presumptions—Rebuttable Mandatory—Which Affect the Burden of Proof (When Presumed Fact Constitutes a Jury Question)) if applicable. See Comment below for further discussion.

The Washington Supreme Court has approved of WPI 15.01 (Proximate Cause—Definition) and WPI 310.07 as accurate proximate cause instructions for use in CPA cases. Schnall v. AT&T Wireless Servs., Inc., 171 Wn.2d 260, 277–80, 259 P.3d 129 (2011), relying on Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59, 83–84, 170 P.3d 10 (2007); see also Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 314, 858 P.2d 1054 (1993) (upholding a jury instruction that required proof that the defendant's unfair or deceptive act proximately caused injury to the plaintiff's business or property).

The traditional definition of “proximate cause” in WPI 15.01 (Proximate Cause—Definition) is incorporated in this instruction. For alternative definitions of “proximate cause,” see WPI Chapter 15 (Proximate Cause). The third paragraph in the instruction section was modified for this edition to be more consistent with WPI 15.01 (Proximate Cause—Definition). No substantive change is intended.

Substantial factor test. The Court of Appeals rejected a jury instruction using the “substantial factor” test for causation in a CPA trial when there was no showing of two inseparable causes. See Sharbono v. Universal Underwriters Ins. Co., 139 Wn.App. 383, 161 P.3d 406 (2007).

Causal link. The required causal link is between the defendant's deceptive act and the plaintiff's injury. Schnall, 171 Wn.2d at 277; Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 61, 204 P.3d 885 (2009); Schmidt v. Cornerstone Inv., Inc., 115 Wn.2d 148, 167, 795 P.2d 1143 (1990). This causal link is not necessarily broken by the existence of an intermediary between the plaintiff and the defendant. See Schmidt, 115 Wn.2d at 167–68 (holding that the necessary causal link between a defendant's inflated property appraisal and the plaintiff's injury may still exist even if the defendant had no direct contact with the plaintiff).

Causation in cases involving affirmative misrepresentations. In cases involving affirmative misrepresentations of facts, the plaintiff is not required to show that he or she relied on the misrepresentations. The Supreme Court has “firmly rejected the principle that reliance is necessarily an element of the plaintiff's [CPA] case.” Schnall, 171 Wn.2d at 277; see Indoor Billboard, 162 Wn.2d at 78–84 (rejecting the former test of reliance/inducement, holding that the former test did not survive the Hangman Ridge case). Instead, the plaintiff is required to meet the general requirements of proximate causation: “We hold that the proximate cause standard embodied in WPI 15.01 is required to establish the causation element in a CPA claim.” Schnall, 171 Wn.2d at 278; Indoor Billboard, 162 Wn.2d at 83–84.

According to both Schnall and Indoor Billboard, a plaintiff does not meet the test of proximate causation merely by showing that the defendant made an affirmative misrepresentation and that the plaintiff thereafter purchased the defendant's product or services. Schnall, 171 Wn.2d at 277; Indoor Billboard, 162 Wn.2d at 83–84. Rather, the plaintiff must show that the plaintiff's injury would not have occurred but for the defendant's misrepresentation, and that the injury occurred in a direct causal sequence with the misrepresentation.

Causation in cases involving failure to disclose facts. In Indoor Billboard, the Washington Supreme Court distinguished affirmative misrepresentations from failures to disclose facts. Because of the difficulty in proving reliance in a failure to disclose case, the Court of Appeals adopted a rebuttable presumption of reliance under the CPA for omissions of material facts claims, citing rebuttable presumptions of reliance applied by federal courts in CPA failure to disclose cases and adopted by the Washington Supreme Court in franchise fraud and security fraud cases. Deegan v. Windemere Real Est./Center-Isle, Inc., 197 Wn.App. 875, 885–86, 890, 391 P.3d 582 (2017).

No case has clearly addressed whether the rebuttable presumption of reliance is resolved by the trial court as a matter of law, or by the jury through an instruction, thereby shifting the burden of production and persuasion to the defendant as a question of fact. Cf. Spivey v. City of Bellevue, 187 Wn.2d 716, 734–35, 389 P.3d (2017) (holding jury properly instructed on rebuttable presumption shifting burden of production and persuasion to defendant where plaintiff otherwise had “impossible burden” of demonstrating occupation actually caused disease); Mut. of Enumclaw Ins. Co. v. Dan Paulson Constr., Inc., 161 Wn.2d 903, 921, 169 P.3d 1 (2007) (holding defendant insurers bear the burden of proof on disproving harm once an insured plaintiff proves bad faith where insured otherwise would bear impossible burden of proving harm); Moratti v. Farmers Ins. Co., 162 Wn.App. 495, 511, 254 P.3d 939 (2011) (jury instructed on rebuttable presumption of harm shifting burden of proof to defendant in insurance bad faith case).

Questions of fact/law. Usually, causation is a question of fact. See Indoor Billboard, 162 Wn.2d at 83–84; Carlile v. Harbour Homes, 147 Wn.App. 193, 214–15, 194 P.3d 280 (2008); Shah v. Allstate Ins. Co., 130 Wn.App. 74, 85–86, 121 P.3d 1204 (2005). If the links in the chain of causation show that the connection between defendant's act or practice and plaintiff's alleged injury is too remote, then lack of causation may be decided by the trial court as a matter of law. Fidelity Mortg. Corp. v. Seattle Times Co., 131 Wn.App. 462, 470–71, 128 P.3d 621 (2005). The test for remoteness is:

Fidelity Mortgage, 131 Wn.App. at 470–71; see also Browne v. Avvo, Inc., 525 F. Supp.2d 1249, 1255 (W.D. Wash. 2007).

Multiple proximate causes-generally. The WPI Committee is not aware of reported Washington cases involving proximate cause under both general tort liability and the CPA. In general negligence cases, however, the court has held when evidence supports more than one proximate cause, it may be error to use WPI 15.01 (Proximate Cause—Definition) without the bracketed sentence stating that an event may have one or more proximate causes. Jonson v. Chicago, Milwaukee, St. Paul and Pac. R.R. Co., 24 Wn.App. 377, 380, 601 P.2d 951 (1979) (when evidence supports multiple proximate causes, and a specific request is sought, jury should be instructed, “[a]n event may have one or more proximate causes”).