WPI 380.06 Nuisance—Burden of Proof—Assumption of Risk Defense (Coming to the Nuisance)
6A WAPRAC WPI 380.06Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 380.06 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XXI. Nuisance
Chapter 380. Nuisance
WPI 380.06 Nuisance—Burden of Proof—Assumption of Risk Defense (Coming to the Nuisance)
It is a defense to an action for damages based upon a claim of nuisance, that the plaintiff assumed the risk of harm or loss by locating at or near an established local nuisance. Though this fact (if proved) does not absolutely bar(name of plaintiff)'s claim for damages, it is one factor to be considered by you when considering how much, (if any), damages you should award(name of plaintiff).
The defendant,(name of defendant), has the burden of proving the following proposition:
That(name of plaintiff)knew of(name of defendant)'s use of [his] [her] property when(name of plaintiff)[purchased property] [improved property] [elected to live] in close proximity to(name of defendant)'s property. In this context, “use of property” means the use that(name of plaintiff)contends was the cause of [his] [her] damages.
If you find from your consideration of all the evidence that this proposition has been proved, then, using 100% as the total combined conduct of the parties (nuisance and assumption of risk) which contributed to(name of plaintiff)'s damages, you must reduce the total damages you find to have been sustained by(name of plaintiff), by the percentage of that conduct attributable to the risk assumed by(name of plaintiff). I will furnish you with a special verdict form for this purpose.
NOTE ON USE
Use this instruction for cases involving the defense of assumption of risk. This instruction will be used together with the general definition instruction, WPI 380.01, and the balancing test instruction, WPI 380.03, and in an appropriate case may be used with the public/private nuisance definition, WPI 380.02.
COMMENT
This instruction is based upon RCW 4.22.015; RCW 4.22.070; DiBlasi v. City of Seattle, 136 Wn.2d 865, 888, 969 P.2d 10 (1998) (concurring opinion); Buchanan v. Simplot Feeders, Ltd. Partnership, 134 Wn.2d 673, 678, 952 P.2d 610 (1998); Albin v. Nat'l Bank of Com., 60 Wn.2d 745, 753, 375 P.2d 487 (1962); and Powell v. Superior Portland Cement, 15 Wn.2d 14, 18–19, 129 P.2d 536 (1942).
[Current as of February 2021.]
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