Appeal from Superior Court of King County. Docket No: 93-2-11732-9. Date filed: 01/31/95. Judge signing: Hon. Marsha J. Pechman.
Authored by Mary K. Becker. Concurring: William W. Baker, H. Joseph Coleman
The opinion of the court was delivered by: Becker
BECKER, J. -- In this appeal of a judgment for injuries sustained at an active logging site by a licensee, the defendant claims the trial court should have instructed the jury on implied primary assumption of the risk. Notwithstanding the adoption of comparative negligence, implied primary assumption of risk by a plaintiff remains as a defense distinct from contributory negligence. But there must be implied consent by the plaintiff to excuse the defendant from a particular duty owed, the breach of which caused the injuries. In view of the lack of such consent here, we affirm.
The plaintiff, Michael Dorr, is an experienced logger. The defendant, Big Creek Wood Products, Inc., is John Knecht's one-person logging company. Michael Dorr and John Knecht are friends. One Saturday during the autumn of 1992, Dorr went to visit Knecht at a remote logging site where Knecht was working alone. As Dorr was hiking in through the woods, he could see a tree falling.
Both men were aware that an active logging site includes the risk of "widow-makers", i.e. large limbs from the falling tree that become caught in a standing tree and later fall with little warning. Dorr testified that as he approached the site he specifically looked for widow-makers but could see none.
When Dorr got to Knecht's location, he stopped at the stump of the tree that had just fallen. Knecht had already begun "bucking" the tree into log sections with his chain saw. Dorr testified that Knecht waved him forward. While Knecht continued cutting, Dorr came toward Knecht by walking down the length of the tree trunk. When he was about 20 feet from the stump, tree limbs fell on Dorr and injured him seriously.
Dorr sued Big Creek for the negligence of Knecht. At trial, the court instructed the jury on the liability of a possessor of land for injury to licensee. The court also gave standard instructions on negligence and contributory negligence. These instructions are not in dispute on appeal. The jury found total damages to be $273,357 and attributed 41.5 percent to Dorr's negligence and 58.5 percent to Big Creek's negligence.
Big Creek proposed that the trial court also instruct the jury on implied primary assumption of the risk, a defense that operates as a complete bar to recovery. The proposed instruction was from the Washington Pattern Jury Instructions, WPI 13.03:
It is a defense to an action for personal injury that the plaintiff impliedly assumed a specific risk of harm.
A person impliedly assumes the risk of harm, if that person knows of the specific risk associated with a course of conduct, understands its nature, and voluntarily chooses to accept the risk by engaging in that conduct.
A person's acceptance of a risk is not voluntary if that person is left with no reasonable alternative course of a conduct to avoid the harm because of the defendant's negligence. *fn1
To accompany the above instruction, Big Creek also proposed a modified burden of proof instruction:
To establish the defense that the plaintiff impliedly assumed a specific risk of harm, the defendant has the burden of proving ...