WPI 110.31.01.02 Fault to Be Apportioned—Product Liability
6 WAPRAC WPI 110.31.01.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 110.31.01.02 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part IX. Particularized Standards of Conduct
Chapter 110. Product Liability
WPI 110.31.01.02 Fault to Be Apportioned—Product Liability
If you find that more than one entity was at fault, you must determine what percentage of the total fault is attributable to each entity that proximately caused the [injury] [damage] to the plaintiff. Your answers to the questions in the special verdict form will furnish the basis by which the court will apportion damages, if any.
Entities may include the defendant(s), [the plaintiff(s)] [and] [the person(s) incurring property damage] [third-party defendant(s)] [entity or entities not party to this action].
This instruction defines “fault” as it is used in the special verdict form. You will need to apportion fault only if you first determine that the defendant supplied a product that [was not reasonably safe as designed] [or] [was not reasonably safe in construction] [or] [was not accompanied by adequate warnings] and that this unsafe aspect of the product proximately caused the plaintiff's injury. In addition, you will only need to apportion fault if you also determine that [the plaintiff] [another party] [another entity] was also at fault and that such fault also caused the plaintiff's injury.
Each of the following is considered “fault”:
[supplying a product that is not reasonably safe because of inadequate warnings]
[supplying a product that is not reasonably safe in its design]
[supplying a product that is not reasonably safe in its construction]
[breach of warranty]
[negligent misuse of product]
[assumption of risk]
[(other — see Note on Use)].
NOTE ON USE
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).
[Current as of December 2020.]
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