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Assumption of Risk under the WPLA

— May 18, 2015

Recovery under the WPLA requires proof that the unsafe product was the proximate cause of the claimant’s injuries. A plaintiff seeking to recover must also be aware of the common law defenses to what was the cause of injury because the WPLA does not preempt existing common law defenses, including assumption of risk. Although assumption of risk is a damage-reducing factor in strict liability cases, certain classifications of the defense (i.e., express assumption of risk and implied primary assumption of risk) may provide a complete defense in other contexts. Under Washington’s system of “pure” comparative fault, the remaining defenses do not bar recovery, but instead merely reduce the claimant’s recoverable damages

As The Washington Supreme Court has remarked, the entire doctrine of “assumption of risk” is surrounded by much confusion, and has been improperly applied in many cases. Scott v. Pac. W. Mt. Resort, 119 Wn.2d 484 (Wash. 1992) Before statutes were enacted, common law established both assumption of risk and contributory negligence as total bars to recovery. Therefore, it was formerly not critical that the two concepts be carefully distinguished. But with the new comparative negligence and comparative fault statutes, it is important to know the difference between the two, as one shifts the defendant’s duty to the plaintiff (and would completely bar the claim) and the other is essentially contributory negligence (and simply reduces damages). The essential elements of assumption of risk are the plaintiff’s subjective understanding of the risk, voluntary choice to encounter the risk, and willingness to accept that risk.

Under the traditional analysis, the assumption of risk doctrine is divided into four classifications: (1) express; (2) implied primary; (3) implied reasonable; and (4) implied unreasonable. Shorter v. Drury, 103 Wn.2d 645, 655, 695 P.2d 116, cert. denied, 474 U.S. 827 (1985)

Express Assumption if Risk

Express assumption occurs when parties agree in advance that one of them is under no obligation to use reasonable care for the benefit of the other and will not be liable for what would otherwise be negligence. When such a plaintiff is injured by one of the risks for which he or she has agreed to forgo suit, the claim will be barred because that risk was assumed by the plaintiff. The bar of express assumption is based on contract and survives the enactment of comparative negligence statutes. However, such assumption only bars a claim with regard to the risks actually assumed by the plaintiff.

Implied Primary Assumption of Risk

Implied primary assumption of risk arises where a plaintiff has impliedly consented (often in advance of any negligence by defendant) to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks. This is limited to what the specifically defined scope of the assumption, i.e., what risks were impliedly assumed and which remain as a potential basis for liability. For instance, in Scott, the court held that an exculpatory provision signed by the parents sending their child to a ski school that agreed, “to hold the ski school harmless for all claims arising out of the instruction of skiing” barred the parents claim because the language of the purported exculpatory clause contained in the ski school application was sufficiently clear to give notice that the ski school was attempting to be released from liability. Scott v. Pac. W. Mt. Resort, 119 Wn.2d 484 (Wash. 1992)

Implied Reasonable/Unreasonable Assumption of Risk

Implied reasonable or unreasonable assumption of risk may arise when a plaintiff knows about an existing risk created by the defendant’s existing negligence, and yet voluntarily chooses to encounter that risk. Lascheid, 137 Wn. App. at 643, 154 P.3d at 311 (Wn. App. 2007). Implied reasonable assumption of risk is closely related to implied unreasonable assumption of risk– the difference is that while the plaintiff assumed a risk, they acted reasonably in doing so. Shorter v. Drury, 103 Wash.2d 645, 88 L.Ed.2d 70 (1985)  For this analysis, the court must engage in careful analysis to delineate whether the plaintiff’s knowledge and conduct rose to the level of having assumed the risk, thereby precluding a claim.Implied unreasonable assumption of the risk provides a defense when a person acts in disregard for their own safety. Unreasonable assumption of risk is subsumed under comparative fault.  Consider as an example, a person who runs into a burning building to save their favorite coffee cup. If the plaintiff’s actions were grossly negligent to the point of a wanton disregard for their own safety, then the claim may be barred. By comparison, consider a person who runs into a burning building to save their child, this could be considered a reasonable assumption of risk depending on the analysis of the court.

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