WPI 110.02.03 Crashworthiness / Enhanced Damage and Injury—Manufacturing and/Or Design Defect—B...
6 WAPRAC WPI 110.02.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 110.02.03 (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 110.02.03 Crashworthiness / Enhanced Damage and Injury—Manufacturing and/Or Design Defect—Burden of Proof—Allocation of Fault
In a case for enhanced injuries, the plaintiff has the burden of proving each of the following propositions:
First, that(name of manufacturer)[manufactured] [designed] a product(name of product)that was not reasonably safe in reasonably foreseeable accidents or collisions; and
Second, that the unsafe condition of the(name of product)proximately caused the plaintiff injuries which [he] [she] would not have otherwise sustained in the accident or collision, absent the product defect.
The plaintiff need not prove that the unsafe condition of the product was a cause of the accident or collision itself, just that the unsafe condition of the product was a proximate cause of the enhanced injury or damage.
If you find from your consideration of all of the evidence that both of these propositions has been proved against(name of manufacturer), then your verdict should be for the plaintiff on this issue. You should answer Question No. of the verdict form “yes.”
On the other hand, if you find that either of these propositions has not been proved against(name of manufacturer), your verdict on this issue should be for(name of manufacturer). You should answer Question No. of the verdict form “no.”
NOTE ON USE
This instruction on the plaintiff's burden of proof applies only if a legal determination has been made that fault should be separately allocated for a plaintiff's enhanced injuries. See the Comment below. If the court determines that fault should be separately allocated for a plaintiff's enhanced injuries, incorporate WPI 110.02.04 (Crashworthiness/Enhanced Damage and Injury—Manufacturing and/or Design Defect—Verdict Form for Use with WPI 110.30.01, 110.30.02, 110.31.01, and 110.31.02) into the verdict form presented to the jury with this instruction.
Use WPI 21.01 (Meaning of Burden of Proof—Preponderance of Evidence) with this instruction.
COMMENT
For a general discussion of crashworthiness or enhanced injury cases, see the Comment to WPI 110.02.02 (Crashworthiness/Enhanced Damage and Injury—Manufacturing and/or Design Defect).
Allocation of fault. There is no case law in Washington addressing the question of whether contributory negligence (and/or assumption of the risk) applies in an enhanced injury/crashworthiness case under Washington's comparative fault statutes (RCW 4.22.005, RCW 4.22.015, and RCW 4.22.070). However, a number of courts outside Washington have addressed whether primary fault should be compared with enhanced-injury fault under a scheme of comparative fault when apportioning damages in enhanced-injury cases.
Some courts favor comparing primary fault with enhanced-injury fault, thereby reducing the plaintiff's recovery for enhanced injuries in proportion to the plaintiff's primary fault. See, e.g., Montag v. Honda Motor Co., 75 F.3d 1414, 1419 (10th Cir. 1996); Keltner v. Ford Motor Co., 748 F.2d 1265, 1267–68 (8th Cir. 1984); Hinkamp v. Am. Motors Corp., 735 F. Supp. 176, 178 (E.D.N.C. 1989); Trust Corp. of Mont. v. Piper Aircraft Corp., 506 F. Supp. 1093, 1098 (D. Mont. 1981); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 428 (Tex. 1984). These courts favor such a comparison for various reasons: some courts do not distinguish between primary injuries and enhanced injuries, others assume that fault for the primary accident is a proximate cause of enhanced injuries, and still other courts state that primary fault should be compared with enhanced-injury fault.
Other courts use only enhanced-injury fault to apportion responsibility for enhanced injuries. See, e.g., Egbert v. Nissan Motor Co., 2010 UT 8, 228 P.3d 737 (Utah 2010); Jahn v. Hyundai Motor Co., 773 N.W.2d 550 (Iowa 2009); Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339 (11th Cir. 2004); Kutsugeras v. AVCO Corp., 973 F.2d 1341, 1344–45 (7th Cir. 1992); Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537–38, 796 P.2d 1092 (1990). These courts emphasize that under an enhanced-injury analysis, a primary accident has happened and the crashworthiness of the vehicle is evaluated without considering the cause of that primary accident. Therefore, liability for enhanced injury is imposed only if the defendant has breached an enhanced-injury duty. The cause of the primary accident is obviously relevant to the cause of the primary injuries, but it is not relevant to the cause of the enhanced injuries.
For an in-depth discussion of this issue, see Egbert, 2010 UT at ¶¶ 21–40; Jahn, 773 N.W.2d at 553–61; Owen & Davis, Owen & Davis on Products Liability §§ 21.4–.5 (4th ed. 2021); see also Harkins, Holding Tortfeasors Accountable: Apportionment of Enhanced Injuries Under Washington's Comparative Fault Scheme, 76 Wash. L.Rev. 1185 (2001); Beck, Enhanced Injury: A Direction for Washington, 61 Wash. L.Rev. 571 (1986).
Burden of proof. In Baumgardner v. American Motors Corp., 83 Wn.2d 751, 758, 522 P.2d 829 (1974), the Washington Supreme Court held that “the plaintiff has the usual burdens of proof as in any negligence action [or strict liability action] including proof of the nature and extent of the injuries proximately caused or enhanced by the defect.” See also Couch v. Mine Safety Appliances Co., 107 Wn.2d 232, 242, 728 P.2d 585 (1986).
[Current as of January 2021.]
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