Kirk v. Washington State University
746 P.2d 285, 109 Wash. 2d 448 (1987)
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Rule of Law:
Under a comparative negligence system, a plaintiff's assumption of a risk, whether express or implied, does not operate as a complete bar to recovery. Instead, it is a damage-reducing factor to be considered by the jury in apportioning fault between the plaintiff and a negligent defendant.
Facts:
- In the spring of 1978, Kathleen Kirk, a 20-year-old student, joined the Washington State University (WSU) cheerleading team, a university-funded and approved student activity.
- Shortly before the fall 1978 season, the team's long-time, safety-conscious faculty advisor was replaced by a new advisor who did not attend practices.
- The team was denied access to their usual indoor practice room with mats and was forced to conduct practices on the harder astroturf surface of the football stadium.
- WSU faculty were aware that the astroturf was harder and caused more injuries than natural turf, but they gave no warning to the cheerleaders.
- On October 18, 1978, Kirk was injured while practicing a modified, riskier version of a shoulder stand stunt that the team had not been properly trained to perform.
- During the stunt, Kirk's body tipped backward after landing on her partner's shoulders.
- Her partner held onto her ankles as she fell, and she landed with her full weight on her left elbow on the astroturf.
- Kirk shattered all three bones in her elbow, resulting in a permanent injury, and also fractured her ankle.
Procedural Posture:
- Kathleen Kirk brought a personal injury action against Washington State University (WSU), its Board of Regents, and the Associated Students of WSU in a state trial court.
- At trial, the defendants proposed jury instructions asserting that Kirk's assumption of risk should act as a complete bar to recovery, which the trial court refused to adopt.
- The jury returned a verdict finding the defendants negligent and that their negligence was a proximate cause of Kirk's injuries.
- The jury also found Kirk's own conduct was a proximate cause of 27 percent of her injuries, and her damages were reduced by that amount.
- The trial court entered a final judgment for Kirk in the amount of $353,791.
- The defendants appealed the judgment, and the plaintiff cross-appealed, with both appeals proceeding directly to the Supreme Court of Washington.
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Issue:
Under a comparative negligence system, does a plaintiff's voluntary participation in a dangerous athletic activity constitute an assumption of risk that acts as a complete bar to recovery for injuries caused in part by the defendant's negligence?
Opinions:
Majority - Dolliver, J.
No. A plaintiff's assumption of risk does not act as a complete bar to recovery but is instead a damage-reducing factor for the jury to consider when apportioning fault under a comparative negligence system. The court analyzed the four categories of assumption of risk (express, implied primary, implied reasonable, and implied unreasonable), concluding that none justify a complete bar to recovery when a defendant's negligence is also a cause of the plaintiff's injuries. Implied unreasonable assumption of risk is merely a form of contributory negligence. Express and implied primary assumption of risk, which involve a plaintiff's consent to relieve a defendant of a duty for specific known risks, serve to reduce damages to the extent the injury resulted from those assumed risks, but not from other risks created by the defendant's negligence. The court also held that implied reasonable assumption of risk is a form of fault that a jury should evaluate when apportioning damages, rather than a doctrine that absolves a defendant of liability.
Dissenting - Goodloe, J.
The dissent does not address the assumption of risk issue. It argues that the trial court abused its discretion by excluding evidence of Kirk's prior abortions. The dissenting judge contended this evidence was highly probative on the issue of damages, as it was relevant to determining whether Kirk's depression—a major component of her damage award—predated her physical injury. The dissent concludes that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice and that the case should be remanded for a new trial on damages.
Analysis:
This case is significant for clarifying and unifying the treatment of the assumption of risk doctrine under a comparative negligence framework in Washington. By rejecting the traditional all-or-nothing approach, the court aligned the doctrine with the core principle of comparative fault, ensuring that a plaintiff's decision to engage in a risky activity does not absolve a defendant of liability for their own separate acts of negligence. This decision establishes that all forms of a plaintiff's risk-assuming conduct are to be weighed by the jury in the calculus of fault apportionment. It solidifies the legal duty for organizers of athletic and recreational activities to maintain a standard of care, as they can no longer rely on assumption of risk as a complete shield against liability for their negligence.
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