Alston v. Blythe
88 Wash. App. 26 (1997)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An assumption of risk jury instruction is improper in a negligence case where the evidence only supports a finding of contributory negligence. The doctrine of primary assumption of risk requires evidence that the plaintiff consented to relieve the defendant of a duty of care, not merely that the plaintiff acted carelessly.
Facts:
- Alston attempted to cross Portland Avenue, a multi-lane arterial street, on foot.
- Steven McVay, driving a tractor-trailer for Kaelin Trucking in the inner southbound lane, saw Alston and stopped to allow her to pass.
- Alston alleged that McVay waved her across the southbound lanes, an assertion McVay denied.
- After walking in front of McVay's stopped truck, Alston stepped into the outer southbound lane.
- Upon entering the outer lane, Alston was struck and injured by a vehicle driven by Michael Blythe.
- At the time of the accident, Alston was receiving public assistance, and the Department of Social and Health Services (DSHS) paid a portion of her medical fees.
- Alston's treating physician had an arrangement to collect the remainder of his fees only if Alston prevailed in her lawsuit.
Procedural Posture:
- Alston sued Blythe, McVay, and McVay's employer, Kaelin Trucking, for negligence in state trial court.
- During the jury trial, the court ruled over Alston's objection that the defendants could introduce evidence of her physician's financial interest in the lawsuit's outcome for impeachment purposes.
- At the close of evidence, the trial court, over Alston's objection, provided the jury with an instruction on the defense of assumption of risk.
- The jury returned a verdict for the defendants, finding that neither McVay nor Blythe had been negligent.
- Alston appealed the trial court's judgment to the Washington Court of Appeals.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a trial court commit a reversible error by giving an assumption of risk instruction to the jury when the evidence only indicates potential contributory negligence by the plaintiff and does not show the plaintiff consented to negate a duty of care owed by the defendants?
Opinions:
Majority - Morgan, J.
Yes. A trial court commits a reversible error by giving an assumption of risk instruction where the evidence does not support it. The court distinguished between four facets of assumption of risk, noting that implied reasonable and unreasonable assumption of risk are functionally identical to contributory negligence under Washington's comparative negligence system. In contrast, express and implied primary assumption of risk concern the plaintiff's consent to negate a duty the defendant would otherwise owe. For a primary assumption of risk instruction to be proper, there must be evidence that the plaintiff consented to relieve the defendant of a specific duty. Here, there was no evidence that Alston consented to relieve Blythe or McVay of their duty to exercise ordinary care. Her actions of crossing the street merely raised an issue of contributory negligence, making the assumption of risk instruction erroneous and prejudicial because it could have improperly led the jury to believe it was a complete bar to recovery.
Analysis:
This decision significantly clarifies the application of the assumption of risk doctrine in Washington following the adoption of comparative negligence. It strictly cabins implied primary assumption of risk to situations involving actual consent by the plaintiff to negate a defendant's duty, preventing it from being used as a duplicative and confusing alternative to contributory negligence. The ruling protects the integrity of the comparative fault system by ensuring that a plaintiff's own negligence generally serves to reduce, not completely bar, recovery. This precedent directs trial courts to avoid giving assumption of risk instructions in typical negligence cases unless there is clear evidence of the plaintiff's consent to encounter a specific, known risk created by the defendant.
