From the Desk of Kyle Riley: This case shows how a plaintiff’s assumption of a particular risk can completely bar their recovery for injury.
Claims Pointer: Washington law recognizes four varieties of assumption of the risk. Some varieties completely bar recovery and some (involving contributory negligence) do not. Implied primary assumption of the risk acts as a complete bar to recovery and results when a plaintiff has a full subjective understanding of the presence and nature of a specific risk but voluntarily chooses to encounter the risk. Such assumption of the risk is found when a plaintiff verbally comments on the specific dangers posed by a stairway, voluntarily decides to use the stairway anyway, and is later injured by her use of the stairway.
Lizabeth Jessee v. City Council of Dayton, in the Court of Appeals of the State of Washington, Division III, No. 30636-4-III, — P3d —-, (February 5, 2013).
Lizabeth Jessee (“Jessee”) tripped, fell and injured herself on an old stairway at the Old Fire Station in Dayton, Washington. Jessee worked for the Walla Walla County Emergency Management Department and was at the fire station to observe and evaluate a joint emergency management exercise put on by Columbia County and the City of Dayton (“The City”). After arriving at the fire station earlier that day, Jessee had noticed the subject’s stairway and commented on certain deficiencies: the stair treads were steeper than normal, there was no handrail, the stairs were not ADA compliant, and the stairs generally looked “unsafe.” Despite these criticisms, Jessee successfully climbed the stairs to attend a meeting. However, upon her later descent of the stairs, she tripped, fell and injured herself. Jessee brought suit against The City for her injuries alleging negligence. The City moved for summary judgment arguing that Jessee had assumed the risk of injury because she knew of the risk posed by the stairs but voluntarily chose to use them anyway. The trial court agreed with The City and dismissed Jessee’s suit. Jessee appealed.
The Court of Appeals affirmed the trial court’s ruling. Of the four varieties of assumption of risk recognized in Washington, the court found that this case involved implied primary assumption of the risk, which would be a complete bar to Jessee’s recovery if proven. To establish implied primary assumption of the risk, The City had to show that Jessee had a full subjective understanding of the presence and nature of the specific risk and voluntarily chose to encounter it. If shown to have specific knowledge of all facts that a reasonable person would want to know and consider at the time of voluntarily incurring the risk, Jessee would be barred from recovery. The Court found that Jessee had specific knowledge of the stair’s dangers and clearly showed this knowledge through her comments on the specific dangers of the stairs before ascending them. The Court also found that Jessee’s election to use these stairs despite the known risks was voluntary. For Jessee’s actions to be voluntary, The City had shown that she chose to encounter the risk despite knowing of a reasonable alternative course of action. The Court disagreed with Jessee’s argument that her choice in using the stairs was involuntary because she was at work, expected to climb the stairs to attend a meeting, and did not choose the meeting place. Instead, the court reasoned that The City did not impose any requirement that Jessee climb the stairs and she decided the climb the stairs herself.
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