WPI 110.31.01.02 Fault to Be Apportioned—Product Liability

Use this instruction to accompany WPI 110.31.01.01 (Special Verdict Form—Product Liability—Assumption of Risk—Contributory Negligence—No Empty Chairs—Mixed Standards of Care) if there is a need to explain how to apportion fault when there are different types of fault. It is only necessary to use WPI 110.31.01.01 (Special Verdict Form—Product Liability—Assumption of Risk—Contributory Negligence—No Empty Chairs—Mixed Standards of Care) and this instruction when the jury is required to apportion fault between an “apple” (such as strict liability) and an “orange” (such as contributory negligence or the negligence of a third party). If the comparison of fault does not involve different types of fault, this instruction should not be used.

Although RCW 4.22.015 includes failure to mitigate damages within the definition of “fault,” this instruction does not include it for purposes of apportionment. Instead, if failure to mitigate is alleged by a defendant, the verdict form should instruct the jury to reduce the amount of the plaintiff's damages by whatever amount of such damage is attributed to the failure to mitigate. The apportionment of fault is then applied to the amount of damages specified in the jury's answer on the verdict form.

The forms of fault listed in the instruction should include only those that are at issue in the case. The instruction lists in brackets the types of fault more commonly at issue in a product liability case. If the case involves a form of fault that is less common and not already listed, the instruction (and the verdict form) should be modified to include it (as indicated with the bracketed blank line in this pattern instruction).

This instruction can also be modified for use in a case that involves other types of “apples and oranges” comparison, such as contributory negligence and an abnormally dangerous activity subject to strict liability.

Use WPI 11.01 (Contributory Negligence—Definition) if contributory fault is an issue in the case. See also WPI 13.03 (Assumption of Risk—Implied Primary) and WPI 13.04 (Assumption of Risk—Express) concerning assumption of risk.

If appropriate, use an instruction on failure to mitigate: WPI 33.01 (Avoidable Consequences—Personal Injury Generally), WPI 33.02 (Avoidable Consequences—Failure to Secure), or WPI 33.03 (Avoidable Consequences—Property or Business).

See the Comment to WPI 41.04 (Fault to be Apportioned) for general guidance regarding the history of RCW 4.22.070 and the apportionment of fault.

The special verdict forms for product liability cases, WPI 110.30.02, WPI 110.31.01, and WPI 110.31.02, may be adapted to fit the specific cause of action and evidence concerning acts and omissions, proximate cause and damages, as appropriate. The special verdict forms for product liability cases, WPI 110.30.02 (Special Verdict Form—Product Liability—No Affirmative Defenses—Empty Chairs), WPI 110.31.01 (Special Verdict Form—Product Liability—Assumption of Risk—Contributory Negligence—No Empty Chairs), and WPI 110.31.02 (Special Verdict Form—Product Liability—Assumption of Risk—Contributory Negligence—Empty Chairs), may be adapted to fit the specific cause of action and evidence concerning acts and omissions, proximate cause and damages, as appropriate. The WPI Committee has provided an example, WPI 110.31.01.01 (Special Verdict Form—Product Liability—Assumption of Risk—Contributory Negligence—No Empty Chairs—Mixed Standards of Care), but this is not a catch-all special verdict form. The trial court and counsel will need to take care in structuring the special verdict form to accurately reflect the legal principles, causes of action, entities, and evidence in the particular case. See generally Johnson v. Recreational Equip., Inc., 159 Wn.App. 939, 946–54, 247 P.3d 18 (2011); Coulter v. Asten Grp., 135 Wn.App. 613, 622–23, 626–27, 146 P.3d 444 (2006).