WPI 110.31.01.01 Special Verdict Form—Product Liability—Assumption of Risk—Contributory Neglige...

This special verdict form should be used if the case involves different types of fault and the jury would benefit from having a common term to use in apportioning fault. Although RCW Chapter 4.22 applies to all actions in which comparative fault is at issue, ordinarily it is unnecessary to use the term “fault” or define it because most cases involve a comparison by the jury of the same type of fault - typically negligence.

Product liability. The most common use for this instruction will be in product liability actions against a manufacturer that involve issues of misuse of the product, contributory negligence, assumption of risk, or the fault of a third party.

WPI 110.31.01.02 (Fault To Be Apportioned—Product Liability) connects with this instruction, to give the jury guidance on what types of fault constitute “total fault”, and how “total fault” leads to the apportionment question—number 6 in this example—in the special verdict form instruction.

Use bracketed material as applicable. Question 1 is set out in alternative form. The first option applies a strict liability standard. This option should be used if the product is claimed to be not reasonably safe in construction (WPI 110.01), not reasonably safe because it did not conform to the manufacturer's express warranty (WPI 110.01.01), not reasonably safe in design (WPI 110.02), or not reasonably safe because adequate warnings were not provided with the product (WPI 110.03). The second option applies a negligence standard. The second option should only be used if it is claimed that the manufacturer was negligent in that the product was not reasonably safe because adequate warnings were not provided after the product was manufactured (WPI 110.03.01).

If there is a jury issue whether the defendant was a manufacturer as defined in RCW 7.72.010, insert the following as the first question in the verdict form:

Use WPI 1.11 (Concluding Instruction—For Special Verdict Form) and WPI 30.02.01 (Measure of Economic and Noneconomic Damages—Personal Injury—Contributory Negligence) with this verdict form. If assumption of risk is at issue, WPI 30.02.01 should be modified to refer to assumption of risk.

If defenses are claimed under WPI 110.05 (Government Contract Specifications—Defense) or WPI 110.08 (Useful Safe Life), a question will need to be added to the verdict form covering these defenses.

Cases other than product liability. Another example of how this verdict form might be used is in a case involving a claim for strict liability based on an abnormally dangerous activity, when the defendant alleges that the plaintiff was contributorily negligent. In such a case, the initial questions regarding the liability of the defendant will need to reflect the appropriate theory. Alternatively, if the issue of strict liability has been decided as a matter of law, the verdict form will omit the question of the defendant's liability, and even the question regarding proximate cause if that has also been determined as a matter of law, but will retain the apportionment process in Question 6.

Married co-plaintiffs. For a personal injury case involving married co-plaintiffs, the verdict form and damage instruction should take into account the community property issues. See the Comment to WPI 30.01.01 (Measure of Economic and Noneconomic Damages—Personal Injury—No Contributory Negligence).

Multiple defendants. The verdict form is based upon a single defendant who is claimed to be strictly liable for the plaintiff's injury, while the defendant alleges that the plaintiff is also at fault. The verdict form can be adapted to include multiple defendants. If one defendant is subject to strict liability and another defendant is alleged to have been at fault on some other basis, the verdict form will need additional questions regarding that defendant's fault (typically, whether the additional defendant was negligent, and whether it proximately caused the injury) and an additional line added to Question 6 that will permit the jury to apportion fault to that party. Even if the plaintiff is not alleged to be at fault in causing the injury, this form may be needed if claims are made against more than one defendant and the types of fault are dissimilar.

“Empty chairs.” If one of the parties alleges that a non-party entity (the so-called “empty chair”) was also at fault and claims that fault should be apportioned accordingly, the verdict form may be modified to add additional questions and additional line(s) to the percentage allocation in Question 6.

RCW 4.22.005; RCW 4.22.015; RCW 4.56.250.

This verdict form was added in 2012.

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.

For a discussion of RCW 4.22.005 and RCW 4.22.015, see the Comment accompanying WPI 110.10 (Assumption of Risk—Contributory Negligence). For a discussion of the damages recoverable in product liability actions, see the Comment to WPI 110.30.01 (Special Verdict Form—Product Liability—No Affirmative Defenses—No Empty Chairs).

In order to modify this verdict form for use in cases in which the cause of action and evidence involves less common types of fault (not listed in this instruction or in WPI 110.31.01.02 (Fault to be Apportioned—Product Liability)), the court should specify the less common type of fault, in the relevant questions posed. The court would also modify the connecting instruction, WPI 110.31.01.02 (Fault To Be Apportioned—Product Liability), to include the less common type of fault. See the bracketed blank line in WPI 110.31.01.02 (Fault to be Apportioned—Product Liability), which describes the concept of “total combined fault.”

As the court recognized in Coulter v. Asten Group, 135 Wn.App. 613, 622–23, 626–27, 146 P.3d 444 (2006), the jury apportions fault, and the court applies the law and mathematical proportions to allocate damages. Choosing types of fault to insert in the jury instructions depends on legal standards and evidence concerning specific acts and omissions of the entities involved in the causes of action. See RCW 4.22.015; Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 259–62, 978 P.2d 505 (1999); Johnson v. Recreational Equip., Inc., 159 Wn.App. 939, 946–54, 247 P.3d 18 (2011). This verdict form guides the jury as it considers allocation of fault; the court resolves the issues of law. See Coulter, 135 Wn.App. 613.