Assumption of Risk Defense

The doctrine of assumption of risk was recently addressed by the Washington Court of Appeals, Division 3, in Jessee v. City Council of Dayton, 293 P.3d 1290 (Wash. Ct. App., 2013). In Jessee, the plaintiff tripped, fell, and injured herself on an old firehouse stairway which did not comply with building codes. Id. Jessee sued the City of Dayton for damages and asserted negligence claims. The defendant, City of Dayton, alleged that Jessee assumed the risk of injury because she knew the risk posed by the condition of the stairway and voluntarily chose to use it anyway. Id. The trial court summarily dismissed the suit, concluding that the plaintiff had voluntarily assumed the risk of injury. Id. The court’s ruling was based on the fact that plaintiff had specific knowledge and had commented on the specific shortcomings of the stairway before encountering the risk those shortcomings posed. Id. Under those circumstances, the court found that the plaintiff voluntarily assumed the risk of injury and the defendant had no duty to protect her. Id. The appellate court agreed and found that plaintiff’s suit was properly dismissed. Id. As explained by the appellate court, “[t]he question in implied primary assumption of the risk is whether the plaintiff appreciated the risk of injury and, nonetheless, voluntarily chose to encounter that risk.” Jessee, 293 P.3d 1290, citing Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). To establish the defense of implied primary assumption of the risk the defendant must show that plaintiff “(1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.” Id.; Kirk v. Wash. State Univ., 109 Wn. 2d 448, 453, 746 P.2d 285 (1987). “If reasonable minds could not differ on the knowledge and voluntariness, there is implied primary assumption of the risk as a matter of law.” Id. “Implied primary assumption of risk is a complete bar to recovery.” Id.