Wirtz v. Gillogly

Court of Appeals of Washington, Division 2
216 P.3d 416 (2009)

ELI5:

Rule of Law:

Under the doctrine of implied primary assumption of risk, a plaintiff who subjectively understands the presence and nature of a specific risk and voluntarily chooses to encounter it, despite having a reasonable alternative course of action, is barred from recovering for injuries caused by that risk.

Facts:

Dennis Gillogly asked his friend, Robert Wirtz, to help fell trees on his father David Gillogly's property as an unpaid favor.
Wirtz had no prior tree-felling experience, whereas Dennis Gillogly had received some formal training.
For the first few days, Wirtz only stacked wood and observed Dennis felling trees while wearing a hardhat.
Dennis and David Gillogly both offered Wirtz a hardhat on multiple occasions, including on the day of the accident, but Wirtz refused each time.
Wirtz agreed to assist in felling a particular tree by operating a ratchet and cable system, the mechanics of which were explained to him.
Wirtz understood the tree was intended to fall toward him, acknowledged the risk it could strike him, and had planned a personal escape route to a large nearby tree for protection.
During the felling process, the tree's trunk split. The men paused, and David Gillogly told Wirtz that he did not have to continue with the project.
Wirtz chose to continue, and moments later the tree broke at the cable line, striking and injuring him.

Procedural Posture:

Robert Wirtz filed a personal injury lawsuit against David and Dennis Gillogly in a Washington state trial court, alleging negligence.
The Gilloglys moved for summary judgment, arguing Wirtz's claim was barred by the doctrine of assumption of risk.
The trial court granted the Gilloglys' motion for summary judgment and dismissed Wirtz's complaint.
Wirtz appealed the trial court's summary judgment dismissal to the Court of Appeals of Washington, Division 2.

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Issue:

Does a volunteer who knowingly participates in the inherently dangerous activity of felling a tree, after being warned of the risks and repeatedly refusing safety equipment, assume the risk of injury, thereby barring a negligence claim against those he was assisting?

Opinions:

Majority - Hunt, J.

Yes. A volunteer who participates in an inherently dangerous activity like felling a tree assumes the risk of injury when he has a subjective understanding of the specific risks involved and voluntarily chooses to encounter them. The doctrine of implied primary assumption of risk applies when the plaintiff impliedly consents to relieve the defendant of a duty regarding specific, known, and appreciated risks. This requires showing both that the plaintiff had knowledge of the risk and voluntarily encountered it. Here, Wirtz had knowledge because he observed the felling process for days, the specific plan was explained to him, he understood the tree could hit him (as evidenced by his planned escape route), and he repeatedly refused a hardhat. Wirtz's participation was voluntary because he was not compelled or paid, he could have refused at any time or limited his role to safer tasks, and he was expressly given the opportunity to stop after the tree split but chose to proceed. Because reasonable minds could not differ on these facts, Wirtz assumed the risk as a matter of law, barring his negligence claim.

Analysis:

This decision reinforces implied primary assumption of risk as a complete bar to recovery in Washington negligence law, particularly in the context of informal, volunteer activities. It clarifies that a plaintiff's subjective understanding and voluntary choice are paramount, even if the plaintiff lacks professional experience. The court's focus on the plaintiff's observable conduct—refusing a hardhat, planning an escape route, and continuing after a warning—provides a clear framework for future cases. This precedent makes it difficult for volunteers injured during obviously hazardous activities to succeed on a negligence claim if they were aware of the dangers and had clear opportunities to avoid them.

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