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WPI 165.03.01 Duty to Disclose—Mixed Issues of Fact and Law

6A WAPRAC WPI 165.03.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 165.03.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part XII. Fraud
Chapter 165. Negligent Misrepresentation
WPI 165.03.01 Duty to Disclose—Mixed Issues of Fact and Law
(Name of plaintiff)has the burden of proving that(name of defendant)owed a duty to disclose information to(name of plaintiff).
In deciding whether this burden has been met, you are to consider whether the following [fact has] [facts have] been proved:
(Insert here the factual issues that the jury will need to resolve before the court can decide whether the duty is owed; see the Note on Use and Comment.)
You have been given a special verdict form that asks you whether [this fact has] [these facts have] been proved. Fill in the special verdict form according to your answer. Follow the directions on the special verdict form for what to do next.
This instruction will rarely be needed. Whether the defendant had a duty to disclose will often be determined by the judge as a matter of law during pre-trial proceedings. For those cases in which a factual issue precludes a decision as a matter of law, this instruction may be used to submit the factual issue to the jury.
Use this instruction with the special verdict form found at WPI 165.03.02 (Duty to Disclose—Mixed Issues of Fact and Law—Special Verdict Form).
Whether the defendant owes a duty of care is usually a question of law for the court. Eastwood v. Horse Harbor Found., Inc., 170 Wn.2d 380, 394, 241 P.3d 1256 (2010); Schaaf v. Highfield, 127 Wn.2d 17, 21–22, 896 P.2d 665 (1995); Austin v. Ettl, 171 Wn.App. 82, 89, 286 P.3d 85 (2012) (concluding in the context of a CR 12(b)(6) motion that no duty existed).
Sometimes, however, cases will arise in which the plaintiff and the defendant present conflicting evidence concerning the facts that would give rise to a duty of care. For such cases, the pattern instruction can be used to submit the factual issue to the jury. The accompanying special verdict form, WPI 165.03.02 (Duty To Disclose—Mixed Issues of Fact And Law—Special Verdict Form), can be used to record the jury's answer and to inform jurors about the next step in their deliberations—in routine cases, jurors would be told that a “yes” answer means that they should then consider the remaining elements of the negligent misrepresentation claim, while a “no” answer means that their deliberations on that claim are completed.
A similar approach for addressing mixed questions of law and fact relating to the existence of a duty is found in the chapter on legal malpractice. See WPI 107.02 (Duty to Non-Client) and WPI 107.03 (Duty to Non-Client—Special Verdict Form).
[Current as of February 2021.]
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