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Bars to Liability and Common Law Torts Under the WPLA

— June 8, 2015

Inherently Dangerous Products

Washington has adopted comment k of the Restatement (Second) of Torts Section 402A, which precludes liability for certain “unavoidably unsafe products.” Moreover, a defendant will not be held strictly liable merely because a product is potentially unsafe, unless it also fails to provide adequate warnings. The Washington Supreme Court has explained that many products, including knives, hatchets, planers, guns, and baseball bats, “may be capable of causing injury, but that does not mean they should be removed from the market.” Baughn v. Honda Motor Co., 107 Wn.2d 127 (Wash. 1986)

Obvious Danger

An important evaluation is the obviousness of the danger. As Eder establishes that under the WPLA, a known or obvious danger cannot be the basis of liability in an inadequate warnings action because it precludes a finding that the lack of adequate warning or instruction was a proximate cause of the injury. Eder v. ASC Profiles, Inc., 2007 Wash. App. LEXIS 1854 (Wash. Ct. App. July 3, 2007) Although the known or obvious danger limitation to the manufacturer’s duty to warn pre-existed the legislature’s enactment of the WPLA, Eder demonstrates that the premise upon which this exception to the duty was based is equally applicable under and is not inconsistent with the WPLA. Id.



The WPLA preempts common law claims for “misrepresentation, concealment, or nondisclosure, whether negligent or innocent.” A claimant may, however, pursue a common law claim for fraud or “intentionally caused harm.”

Destruction or Loss of Evidence

To date, an independent civil cause of action for the tort of spoliation of evidence (i.e., “[t]he intentional destruction of evidence”) has not been recognized in Washington. However, courts may remedy spoliation with a rebuttable evidentiary presumption: “[W]here relevant evidence which would properly be a part of a case is within the control of a party whose interest it would naturally be to produce it and he fails to do so, without satisfactory explanation, the only inference which the finder of fact may draw is that such evidence would be unfavorable to him.” In determining whether to apply the presumption, courts evaluate two factors: “(1) the potential importance or relevance of the missing evidence; and (2) the culpability or fault of the adverse party.” Pier 67 v. King County, 89 Wn.2d 379 (Wash. 1977)  In extreme cases, the court may enter default judgment against the spoliating party after considering whether a lesser sanction would suffice.

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