Personal Injury

Published on: July 12, 2017

No Fault Apportioned to Washington Parent for Negligent Supervision in Child’s Personal Injury Case

The fact-finder in a Washington personal injury case must allocate fault among each of the entities that were at fault for the plaintiff’s injuries, including entities with immunity, except those immune under the workers’ compensation act. Washington law recognizes the doctrine of parental immunity for claims of negligent supervision. The Washington Supreme Court recently reviewed a case addressing whether a child’s compensation from the driver who struck him could be reduced due to his father’s negligent supervision of him.

In this case, the father’s girlfriend at the time struck his two-year-old child with her vehicle in the driveway of the father’s home. A lawsuit was filed on behalf of the injured child against the father’s girlfriend. She asserted an affirmative defense that the child’s father was fully or partially responsible for the child’s injuries, based on negligent supervision. The plaintiff moved for summary judgment, arguing the law did not allow apportionment of fault to the father on these grounds. The court denied summary judgment, and the plaintiff amended the complaint to add the father as a defendant. The amended complaint stated that the other defendant contended the father was concurrently negligent or engaged in willful misconduct that proximately caused the injuries. The father did not make an appearance as a party, and the court entered a default order against him. The jury was instructed to consider whether the plaintiff had met the burden of proving the girlfriend was negligent and had proximately caused the injuries, and whether the defendant had met her burden of proving her affirmative defense that the father was also negligent.

The jury found both the girlfriend and the father were negligent and proximately caused the injuries. The jury attributed 50% of the damages to each of them. The court rejected the plaintiff’s request for a joint and several judgment entered against both the father and the girlfriend for the entire amount of damages and entered only a judgment against the girlfriend for 50% of the damages. The Court of Appeals affirmed the trial court, and the Supreme Court of Washington granted review.

Published on: May 22, 2017

Washington Recreational Immunity Statute Does Not Apply to Mixed-Use Property

by Blair & Kim, PLLC

Washington encourages landowners to open their property up to recreational use by the public by providing immunity to the landowners. The statute provides that a landowner who does not charge any kind of fee to the public is not liable for “unintentional injuries” to members of the public using the property for recreational purposes. RCW 4.24.210. It is clear that injuries on land open exclusively for recreational purposes may fall under the statute and that injuries on land open exclusively for other purposes do not. It is less clear, however, whether immunity can apply when the injury occurs on land that is open to the public for mixed use.

A Washington appeals court addressed this issue in a recent case. The plaintiff was injured while riding her bicycle on a trail. She approached a lawn mower, operated by an employee of the county, and attempted to pass it. She raised her hand to shield her eyes from the debris from the lawn mower. In her deposition, she testified that she tried to veer to the left to get off the trail and clipped the bicycle being ridden by her niece. The plaintiff fell and was injured.

The county’s website described the trail as “a popular commuter route and recreational destination for bicyclists….” Likewise, the county’s Regional Trails Plan provided that the regional trails system would be used “for recreation and transportation….”

Published on: March 27, 2017

Washington Bystander Negligent Infliction of Emotional Distress Claim

by Blair & Kim, PLLC

Under Washington law, a family member who is present at the scene of an accident in which a loved one was physically injured or arrives shortly thereafter may have a claim for negligent infliction of emotional distress (NIED). A Washington appeals court recently reviewed a case to determine whether a plaintiff could bring an NIED claim when she knew about the accident before arriving at the scene.

The plaintiff’s husband died from injuries sustained in a motorcycle accident caused by an unknown driver. Her husband was riding motorcycles with some friends. A van driving erratically passed them and then suddenly hit its brakes in front of the plaintiff’s husband, causing him to crash. The van drove off, and the driver was never identified.

One of the other riders called the woman with the plaintiff and told her of the accident, saying they should come to the scene right away. They got there shortly after the ambulance, approximately 10 to 15 minutes after they received the call.