Center for America

State Tort Law Profile

State List

 

Washington

Last Updated 08/25/2009

Analysis prepared for the Center for America by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

Economic Damages

Limited

Joint liability has been abolished if the plaintiff is found to be at fault, except in cases involving hazardous wastes or substances, tortuous interference with business relationships, and the manufacture or marketing of fungible products in generic form.

Wash. Rev. Code Ann. § 4.22.070; see also Washburn v. Beatt Equip. Co., 840 P.2d 860 (Wash. 1992).

 

Non-Economic Damages

Limited

See above.

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Yes, except employers in workers' compensation cases

Hiner v. Bridgestone Firestone, Inc., 978 P.2d 505 (Wash. 1999) (quoting Wash. Rev. Code Ann. § 4.22.070(1)); Edgar v. City of Tacoma, 919 P.2d 1236 (Wash. 1996).

Market Share Liability

Yes

The Washington Supreme Court has permitted market share liability in a DES case. 

Martin v. Abbott Labs., 689 P.2d 368 (Wash. 1984).

 

Defenses

Comparative Negligence

Yes, pure comparative fault

Wash. Rev. Code Ann. § 4.22.005.

Assumption of Risk

No

Assumption of risk act is generally subsumed into comparative fault and reduces a plaintiff's recovery.  "Express" or "primary" assumption of risk, which occurs when a person consents to the risks of an activity through a bargained-for agreement, is a complete defense.

Leyendecker v. Cousins, 770 P.2d 675 (Ct. App.), review denied, 781 P.2d 1320 (Wash. 1989).

 

Product Misuse

No

Misuse of a product is generally subsumed into comparative fault and reduces a plaintiff's recovery.

 

Compliance With
Government Standards

No

Compliance with government standards may be considered by the trier of fact, but it is not conclusive as to liability.

Wash. Rev. Code Ann. 7.72.050(1); Falk v. Keene Corp., 782 P.2d 974, 979-80 (Wash. 1989).

 

Statute of Repose

Yes

8-year statute of repose applicable to health care liability claims.

Wash. Rev. Code Ann. § 4.16.350.  A prior version of the statute of repose was declared unconstitutional in DeYoung v. Providence Med. Ctr., 960 P.2d 919 (Wash. 1998).

Proof that the harm caused after a product's useful life expired is an absolute defense to a product liability claim.  There is a rebuttable presumption that the useful life of a product is 12 years.  The defense is not available if the plaintiff was exposed to the product during the useful life and the harm does not manifest itself until later.

Wash. Rev. Code Ann. § 7.72.060.

6-year statute of repose after substantial completion of construction or improvement to real property.

Wash. Rev. Code Ann. § 4.16.310, 4.16.310; see also 1519-1525 Lakeview Blvd. Condo. Ass’n v. Apartment Sales Corp., 29 P.3d 1249 (Wash. 2001) (declaring statute of respose to be constitutional).

 

Government Contractor Defense

Yes

Wash. Rev. Code Ann. 7.72.050(2); Graham v. Concord Constr., Inc., 999 P.2d 1264 (Wash. Ct. App. 2000).

 

McLawsuits Permitted?  Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

Wash. Rev. Code Ann. § 7.72.070.

Compensatory Damages

Is there a statutory limit on economic damages?

No limit

 

Is there a statutory limit on non-economic damages?

No limit

A statute setting a limit on non-economic damage awards was found unconstitutional by the Washington Supreme Court.

Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989).

 

Is recovery for medical monitoring permitted without physical injury?

Not likely

Garcia v. Aventis Pasteur Inc., No. 01-2-27335-3-SEA (Super. Ct. of King County, Wash. Apr. 7, 2003) (refusing to recognize medical monitoring as a cause of action because Washington law requires present, physical injury to state a negligence claim).

Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601, 606 (W.D. Wash. 2001) (anticipating that Washington courts would not recognize a cause of action for medical monitoring because Washington law requires existing injury in order to pursue a negligence claim) (interpreting Washington law).

 

Punitive Damages

Is there a statutory limit?

N/A - not permitted

Punitive damages are not available because they are considered contrary to public policy.

Barr v. Interbay Citizens Bank of Tampa, 649 P.2d 827 (Wash. 1982).

 

Is there any restriction on imposing multiple punitive damage awards for same conduct?

N/A

Does the state receive a portion of the punitive damage award?

N/A

What standard is used?

N/A

Procedures

Venue

 

 

Conducive to Abuse - 
Does the statute permit forum shopping?

Yes

In actions for recovery of damages for injuries to the person or for injury to personal property, the plaintiff shall have the option of suing either in the county in which the cause of action or some part thereof arose, or in the county in which the defendant resides, or if there be more than one defendant, where some one of the defendants resides, at the time of the commencement of the action.

Wash. Rev. Code Ann. § 4.12.020(3).

An action may be brought in any county in which the defendant resides, or, if there be more than one defendant, where some one of the defendants resides at the time of the commencement of the action. The residence of a corporate defendant includes any county where the corporation: (a) transacts business; (b) has an office for the transaction of business; (c) transacted business at the time the cause of action arose; or (d) where any person resides upon whom process may be served upon the corporation. The venue of any action brought against a corporation, at the option of the plaintiff, shall be: (a) In the county where the tort was committed; (b) in the county where the work was performed for said corporation; (c) in the county where the agreement entered into with the corporation was made; or (d) in the county where the corporation has its residence.

Wash. Rev. Code Ann. § 4.12.025.

A court may, on motion change the place of trial when the county designated in the complaint is not the proper county, there is reason to believe that an impartial trial cannot be had therein, or the convenience of witnesses or the ends of justice would be forwarded by the change.

Wash. Rev. Code Ann. § 4.12.030.

 

Class Actions

Is there a right to an immediate appeal of class certification?

No

Discretionary review may be sought under Wash. R. App. Proc. 2.3(b)(4), if the Superior Court certifies a case as involving a controlling question of law as to which there is substantial ground for a difference of opinion and finds that immediate review of the order may materially advance the ultimate termination of the litigation.

 

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

Yes

The amount of the appeal bond necessary to stay the judgment must be the amount of the judgment, plus interest likely to accrue during the pendency of the appeal and attorney fees, costs, and expenses likely to be awarded on appeal. 

Wash. R. App. Proc. 8.1(c)(1).

The amount of an appeal bonds for signatories of the tobacco Master Settlement Agreement are limited to $100 million.

Wash. Rev. Code Ann. § 43.340.130.

 

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

No

The Washington Supreme Court has declined to adopt Daubert and held that the Frye "general acceptance" test and the evidence rules co-exist as the law of Washington.  

State v. Copeland, 922 P.2d 1304, 1314 (Wash. 1996); State v. Jones, 922 P.2d 806, 808-09 (Wash. 1996).

 

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

A casual link between the unfair act and injury is required

Leingang v. Pierce Cty. Med. Bureau, Inc., 930 P.2d 288 (Wash. 1997).

What is the level of scienter (intent) required of a defendant?

Generally, not required

McRae v. Bolstad, 676 P.2d 496, 500 (Wash. 1984) ("[P]roof of intent to deceive or defraud is not necessary if the action 'has the capacity to deceive a substantial portion of the purchasing public.'").

 

Are class actions permitted?

Yes

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

A person may recover actual damages.

Wash. Rev. Code Ann. § 19.86.090.

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No, it is within the court's discretion

The court may in its discretion, increase the award of damages to an amount not to exceed three times the actual damages sustained, provided that the increased damage award may not exceed $10,000.

Wash. Rev. Code Ann. § 19.86.090.

 

Does every prevailing plaintiff receive attorneys' fees and costs?

No, it is within the court's discretion

Wash. Rev. Code Ann. § 19.86.090.

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

“Nothing in this chapter shall apply to … actions or transactions permitted by any other regulatory body or officer acting under statutory authority of this state or the United States…”

Wash. Rev. Code Ann. § 19.86.170.

Washington law also provides:

“It is the intent of the legislature that, in construing this act, the courts be guided by final decisions of the federal courts and final orders of the federal trade commission interpreting the various federal statutes dealing with the same or similar matters and that in deciding whether conduct restrains or monopolizes trade or commerce or may substantially lessen competition, determination of the relevant market or effective area of competition shall not be limited by the boundaries of the state of Washington. To this end this act shall be liberally construed that its beneficial purposes may be served.”

Wash. Rev. Code Ann. § 19.86.920.

 

 Jury Service

Automatic exemptions and disqualifications eliminated?

Yes

Are the grounds for obtaining an excuse from service closely defined?

No

A court may excuse prospective jurors for “undue hardship, extreme inconvenience, public necessity, or any other reason deemed sufficient by the court for a period of time the court deems necessary.”

Wash. Rev. Code § 2.36.100(1). 

 

May jurors automatically postpone and reschedule service?

No

Is a juror's employment and leave time adequately protected during service?

No

Prohibits an employer from depriving an employee of employment or threatening, coercing, harassing, or denying promotional opportunities to an employee who takes time off for jury service.

Wash. Rev. Code § 2.36.165(2).  

Washington law does not explicitly address whether an employer can require an employee to use annual, vacation, or sick leave time for the period in which he or she serves. 

 

Is there a limit on the frequency of jury service?

Yes, minimal

A court may call jurors as often as once every twelve months for jury service.

Wash. Rev. Code §§ 2.36.093(2), 2.36.100(3).

 

Is the length of service limited to no more than one day or one trial?

No

Washington law provides that the jury term (the time at which a juror must be available or “on call” for jury service) and jury service (the time which a juror must spend in court) should be set at as brief an interval as is practical given the size of the jury source list for the judicial district.  It suggests that the optimal jury term is two weeks or less and the optimal juror service is one day or one trial, whichever is longer.

Wash. Rev. Code § 2.36.080(2).

 

Juror per diem

$10-$62

Jurors receive no less than $10 per day of attendance and may receive up to $62 per day, plus mileage, depending on jurisdiction. 

Wash. Rev. Code §2.36.150 (as amended by S.S.B. 6386, Reg. Sess. (Wash. 2006)).

 

Is additional compensation available on lengthy trials?

No

Is the potential penalty for nonappearance sufficient to encourage participation?

Yes

A person who intentionally fails to appear for jury service is guilty of a misdemeanor.

Wash. Rev. Code § 2.36.170. 

 

Problem Jurisdictions

  None reported

 

 

This analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com Original material © 2009 Center for America.