Home Table of Contents

WPI 165.03.02 Duty to Disclose—Mixed Issues of Fact and Law—Special Verdict Form

6A WAPRAC WPI 165.03.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 165.03.02 (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 165.03.02 Duty to Disclose—Mixed Issues of Fact and Law—Special Verdict Form
QUESTION: Did(name of plaintiff)prove the following fact[s] by clear, cogent, and convincing evidence:
(Insert the disputed facts that the jury needs to resolve before the court can decide whether the duty is owed. A sample question is set forth in the Comment below.)
ANSWER: (Write “yes” or “no”)
(DIRECTION: If your answer is “yes,” then you will proceed to consider the other elements of the plaintiff's [negligent misrepresentation] claim.
If your answer is “no,” then your verdict is complete for this claim.)
Use WPI 165.03.01 (Duty to Disclose—Mixed Issues of Fact and Law) with this special verdict form. This verdict form and the instruction apply only in the unusual circumstances discussed in the Note on Use and Comment to WPI 165.03.01 (Duty to Disclose—Mixed Issues of Fact and Law). The claims in the case will determine how practitioners tailor further directions to the jury about how to proceed.
When plaintiff's burden of proof is something other than a preponderance of the evidence, practitioners should specify the burden in the special verdict form. In this special verdict form the jury is asked whether the plaintiff has proven the necessary facts by clear, cogent, and convincing evidence.
The questions to include in this verdict form will depend on the factual dispute involved in the particular case. Practitioners will need to insure that the answer to the factual question posed to the jury is dispositive of the duty issue. In other words, the question needs to be phrased so that if the fact has been proved, a duty exists, whereas if the fact is not proved there is no duty. The special verdict form can then be tailored to guide the jurors as to what further questions, if any, follow from the resolution of the duty issue.
For example, in a case involving an alleged relationship of trust and confidence (see WPI 165.04 (Negligent Misrepresentation—Failure To Disclose Information—Fiduciary Relationship—Relationship of Trust And Confidence—Definitions)), the following question can be used if a “yes” answer would mean that the defendant had a duty to disclose and a “no” answer would mean that no duty existed:
Did (name of plaintiff) prove by clear, cogent, and convincing evidence that (name of defendant) purported to act or advise with (name of plaintiff)'s interest in mind?
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.]
End of Document