Assumption of Risk Doctrine Limited by Recent Court Decision
Posted Wednesday, August 19, 2015 by Christopher L. Thayer
In an unpublished decision, Division I of the Washington State Court of Appeals, re-visited the doctrine of Assumption of Risk in Gray v. Ida Culver House (August 10, 2015). In Gray, an 84-year-old resident of an assisted living facility fell while boarding a bus owned and operated by the facility. The resident used a wheeled walker and preferred to use the lift to enter the bus, but that process took several minutes and the resident felt pressured to get on the bus as soon as possible. The resident had fallen two times while boarding the bus previously. On the 3rd fall, the resident was seriously injured and sued the facility for negligence. The facility claimed that the resident’s negligence claims were barred under the doctrine of Assumption of Risk.
The assumption of risk doctrine traditionally had four classifications: (1) express, (2) implied primary, (3) implied reasonable, and (4) implied unreasonable. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992). Express assumption of risk was not at issue in this case. Implied primary assumption of risk-the doctrine applied by the trial court arises when a plaintiff "impliedly consent[s] . . . to relieve [a] defendant of a duty to [the] plaintiff regarding specific known and appreciated risks." Implied primary assumption of risk operates as a complete bar to recovery.
The two remaining assumption of risk classifications- implied reasonable and implied unreasonable- have been subsumed by comparative negligence, which merely reduces a plaintiff's damages. Because implied primary assumption of risk acts as a complete bar to recovery, courts construe it narrowly.
"Assumption of the risk has experienced a slow but steady fall from grace." ITT Rayonier, Inc. v. Puget Sound Freight Lines, 44 Wn. App. 368, 374-75, 722 P.2d 1310 (1986). For implied primary assumption of risk to apply, a plaintiff must have knowledge of the risk, appreciate and understand its nature, and voluntarily choose to incur it. Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). The plaintiff must have subjective knowledge of not only the risk, but also of an opportunity to act differently, prevent the risk, or proceed on an alternative course. Whether a plaintiff voluntarily encountered the risk turns on whether he or she elected to encounter it despite knowing of a reasonable alternative course of action. Knowledge and voluntariness are questions of fact for the jury, except if reasonable minds could not differ. In the present case, the court found it was clear that Gray had knowledge of the risk.
The court then turned to whether Ms. Gray voluntarily subjected herself to the risk. Fairly considered, the evidence demonstrates that using the lift to board a resident was an inconvenient and time-consuming process. Only one resident could be lifted at a time, and the process took two to seven minutes per resident. Usually, between six and ten residents would have to be loaded onto the bus. Rarely did more than one staff member, the bus driver, coordinate the bus loading. The Court of Appeals concluded that Gray, an elderly woman who was hesitant to cause inconvenience, was faced with an intimidating driver who had demonstrated gruffness towards residents and distaste for using the lift. On this record, the court could not say as a matter of law that Gray voluntarily assumed the risk of using the stairs. The Court of Appeals reversed the trial court’s dismissal of Gray’s claim, and remanded the case for further proceedings.
It should be noted that this is an “unpublished” case, which means it has no precedential value, however, it does illustrate that lengths that courts will go to in order to avoid the application of the Assumption of Risk doctrine. Many lay people may assume that a party who “assumes the risk” of an activity is barred from raising a negligence claim if an injury is suffered – but the Gray decision shows that it is a much more nuanced and complicated question.
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