86 WASHAPP 376 - Wick v. Clark County

Morgan, J.

¶1(concurring) — The plaintiff requested the trial court to instruct the jury that the County’s duty was "to exercise ordinary care in the repair and maintenance of its public roads, keeping them in such a condition that they are reasonably safe for ordinary travel by persons using them in a proper manner.” Apparently based on WPI 140.01, the trial court told the jury that the County’s duty was "to exercise ordinary care in the maintenance of its public roads to keep them in a condition that is reasonably safe for ordinary travel by persons using them in a proper manner and exercising ordinary care for their own safety. ” (Emphasis added.) In this context, in my view, the phrase "in a proper manner” has the same meaning as the phrase "and exercising ordinary care for their own safety” (in other words, the two italicized phrases are redundant). Thus, even if the trial court erred by not deleting the second italicized phrase, the result of the trial would have been the same, the error could not have been prejudicial, and reversal is not warranted.

¶2Although I do not perceive error warranting reversal, I write to suggest that WPI 140.01 may be unduly confusing because, at least arguably, it fails to make clear whether the phrases "in a proper manner and exercising ordinary care for their own safety” modify the standard of care, the protected class, or both. In a negligence case, duty includes at least three questions: (1) By whom is it owed? (2) To whom is it owed? (3) What is its nature?7 To answer the *386first question is to define an obligated class; to answer the second is to define a protected class; and to answer the third is to define a standard of care.8 In a road case like this, the standard of care (i.e., the county’s "duty”) is to maintain the roads in a reasonably safe condition for travel by persons using them in a proper manner and exercising ordinary care for their own safety.9 The protected class, however, includes anyone foreseeably harmed, regardless of whether that person was using the roads in a proper manner and exercising reasonable care for his or her own safety.10 I conclude that "WPI 140.01 is correct if read so that the italicized phrases modify the standard of care, but incorrect if read so that the italicized phrases narrow thé protected class.

¶3I agree with the majority on the issue involving ER 407.

¶4Review denied at 133 Wn.2d 1019 (1997).

¶5Gall v. McDonald Indus., 84 Wn. App. 194, 202, 926 P.2d 934 (1996), review denied, 131 Wn.2d 1013 (1997); Nivens v. 7-11 Hoagy’s Corner, 83 Wn. App. 33, 41, 920 P.2d 241 (1996), review granted, 131 Wn.2d 1005 (1997); Schooley v. Pinch’s Deli Mkt., Inc., 80 Wn. App. 862, 866, 912 P.2d 1044, review granted, 129 Wn.2d 1025 (1996).

¶6Gall, 84 Wn. App. at 202; Nivens, 83 Wn. App. at 41; Sehooley, 80 Wn. App. at 866.

¶7Ruff v. County of King, 125 Wn.2d 697, 704, 887 P.2d 886 (1995); McCluskey v. Handorff-Sherman, 125 Wn.2d 1, 6, 882 P.2d 157 (1994).

¶8 RCW 4.22.070; Hansen v. Friend, 118 Wn.2d 476, 484, 824 P.2d 483 (1992); Taggart v. State, 118 Wn.2d 195, 219, 224, 822 P.2d 243 (1992); Gall, 84 Wn. App. at 208; Nivens, 83 Wn. App. at 46. Under Washington’s comparative negligence scheme, contributory negligence reduces damages, but it does not narrow the class of persons to whom the defendant owes a duty.