WPI 110.30.02 Special Verdict Form—Product Liability—No Affirmative Defenses—Empty Chairs

This special verdict form is for use in product liability actions against a manufacturer in which there are no affirmative defenses and there are other entities that have been identified as possibly being at fault for the plaintiff's damages.

Use bracketed material as applicable. Question 1 is set out in alternative form. The first option applies a strict liability standard. This option should be used if the product is claimed to be not reasonably safe in construction (WPI 110.01), not reasonably safe because it did not conform to the manufacturer's express warranty (WPI 110.01.01), not reasonably safe in design (WPI 110.02), or not reasonably safe because adequate warnings were not provided with the product (WPI 110.03). The second option applies a negligence standard. The second option should only be used if it is claimed that the manufacturer was negligent in that the product was not reasonably safe because adequate warnings were not provided after the product was manufactured (WPI 110.03.01).

If there is a jury issue whether the defendant was a manufacturer as defined in RCW 7.72.010, insert the following as the first question in the verdict form.

Use WPI 1.11 (Concluding Instruction—For Special Verdict Form) and WPI 30.01.01 (Measure of Economic and Noneconomic Damages—Personal Injury—No Contributory Negligence) with this verdict form.

If defenses are claimed under WPI 110.05 (Government Contract Specifications—Defense) or WPI 110.08 (Useful Safe Life), a question will need to be added to the verdict form covering these defenses.

Use WPI 41.04 (Damages to be Apportioned), WPI 21.10 (Burden of Proof—Entities Not Party to the Action), and WPI 10.01 (Negligence—Adult—Definition) with this verdict form.

For a personal injury case involving married co-plaintiffs, the verdict form and damage instruction should take into account the community property issues discussed in Brown v. Brown, 100 Wn.2d 729, 675 P.2d 1207 (1984). See the Comment to WPI 30.01.01 (Measure of Economic and Noneconomic Damages—Personal Injury—No Contributory Negligence).

RCW 4.22.070.

The statute requires the apportionment of damages “in all actions involving fault of more than one entity.” Pursuant to RCW 7.22.070(1), the trier of fact shall determine the percentage of the total fault that is attributable to every entity that caused the plaintiff's damages. Entities include the plaintiff or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities released by the plaintiff, entities immune from liability to the plaintiff, and entities with any other individual defense against the plaintiff. Judgment is then entered against each defendant (unless a defendant is immune from liability or has prevailed on an individual defense), in an amount that represents the defendant's proportionate share of the plaintiff's total damages. The liability of each defendant is several unless one of the exceptions outlined in the statute apply.

The definition of fault found in RCW 4.22.015 applies when apportioning total fault pursuant to RCW 4.22.070. Welch v. Southland Corp., 134 Wn.2d 629, 952 P.2d 162 (1998); see also Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 259–62, 978 P.2d 505 (1999) (discussing the interplay of RCW 4.22.015 and 4.22.070); Coulter v. Asten Grp., Inc., 135 Wn.App. 613, 146 P.3d 444 (2006) (special verdict form for apportionment in product liability case upheld on appeal). The word “fault,” as defined by RCW 4.22.015, “includes acts or omissions, including the misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability or liability on a product liability claim.” The term also includes breach of warranty.

The theory of strict product liability is to insure that the cost of injury resulting from a defective product is borne by the manufacturer that placed the product on the market rather than by the person injured. See Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (Cal. 1963); Restatement (Second) of Torts § 402A cmt. c (1965). RCW 4.22.070 modifies this theory by shifting to the injured party the cost of injury apportionable to entities other than the manufacturer. If the injured consumer is entirely without fault, RCW 4.22.070(1)(b) retains a limited form of joint and several liability by providing that “the defendants against whom the judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimant's total damages.” But even under RCW 4.22.070(1)(b), the injured party will bear the costs that are attributable to “empty chairs.” For additional commentary concerning RCW 4.22.070, see WPI 21.10 (Burden of Proof—Entities Not Party to the Action) and WPI 41.04 (Damages To Be Apportioned).

For a discussion of the damages recoverable in product liability actions, see the Comment to WPI 110.30.01 (Special Verdict Form—Product Liability—No Affirmative Defenses—No Empty Chairs).