Kirk v. Washington State University

• Decision Date: 25 November 1987
• Docket Number: No. 52584-6,52584-6
• Citation: 109 Wn.2d 448,746 P.2d 285
• Parties: , 43 Ed. Law Rep. 417 Kathleen Constance KIRK, Respondent, v. WASHINGTON STATE UNIVERSITY and Board of Regents; Associated Students of Washington State University, Appellants, Mark Winger and Jane Doe Winger, husband and wife, Defendants.
• Court: Washington Supreme Court

Page 448

109 Wn.2d 448

746 P.2d 285, 43 Ed. Law Rep. 417

Kathleen Constance KIRK, Respondent, v. WASHINGTON STATE UNIVERSITY and Board of Regents Associated Students of Washington State University, Appellants Mark Winger and Jane Doe Winger, husband and wife, Defendants.

No. 52584-6.

Supreme Court of Washington En Banc.

Nov. 25, 1987.

Kenneth Eikenberry, Atty. Gen., Sally P. Savage, Sr. Asst. Atty. Gen., Linda C. Krese, and Paul Tanaka Asst. Attys. Gen.,Pullman, for appellants.

Feltman, Gebhardt, Eymann & Jones, Richard C. Eymann, Steven L. Jones, Robert F. Greer, Spokane, for respondent.

Bryan P. Harnetiaux, Robert H. Whaley, Spokane, amicus curiae for Washington State Trial Lawyers Assn.

DOLLIVER, Justice.

Defendants Washington State University (WSU), its Board of Regents and the Associated Students of WSU appeal from a judgment substantially against them in a personal injury action brought by plaintiff Kathleen Kirk. The plaintiff cross-appeals certain portions of the judgment. We affirm.

In the spring of 1978, Kathleen Kirk, a 20-year-old student at WSU, became a member of its cheerleading team, known as the WSU Yell Squad. The team received funding from both the athletic department and the Associated Students of WSU. The defendants conceded the team was a university-approved student activity. The cheerleaders performed other functions besides attending the games: they attended alumni functions, appeared at promotional functions and parades, and helped in fundraising for WSU. The team also practiced daily. The recruiters told the cheerleaders they "were in public relations."

The team had a faculty advisor, William Davis, from 1971 to 1978. Davis had actively supervised the team and emphasized safety. Sometime in the spring of 1978, Davis was transferred to a different position and replaced by another faculty member who did not attend the cheerleader practices.

In the fall of 1978, the team attempted to use the mat room, where they had practiced previously, but were told not to use that room. As a result, the team conducted its practices on the astroturf surface of Martin Stadium. Other faculty members were aware the astroturf was harder and caused more injuries than nonartificial turf. The cheerleaders were given no warning of the dangers of practicing on the astroturf.

Kirk was injured on October 18, 1978, during a cheerleading practice on the astroturf in preparation for an upcoming game. At the time she was injured the team was practicing shoulder stands. The end result of the maneuver was to have each female cheerleader standing on the shoulders of a male cheerleader. The method of reaching the stand had recently been modified in order to arrive at the completed stand more quickly. Teams in earlier years had performed the stand in the manner shown in pamphlets made available to them, the female placing one foot on the squatting male's upper leg, then one foot on his shoulder, then bringing the other foot up to his other shoulder. These pamphlets had not been made known to the 1978 team. In the modified version being used at the time of Kirk's injury, the female would stand behind the male, take his hands and "pop up", pulled up by the male, so both her feet landed on his shoulders at the same time. The male's hands would transfer immediately to the female's lower calves or ankles while she steadied herself.

Kirk's feet landed on the shoulders of the male cheerleader Mark Winger, but her body tipped backward. Winger had taken hold of her right above her ankles. Kirk stated she told him to let go, but he held her as she fell backward. She landed on the astroturf with her full weight on her left elbow, shattering all three bones in the elbow. Her left ankle was also fractured.

Shortly after Kirk's injury, WSU hired a new program supervisor with 10 years' experience in cheerleading to coach the team.

Kirk's injury to her elbow is permanent. She had surgery on the elbow due to the fractures, and one of the bones in the forearm is no longer connected to the joint. She will have continuing pain and arthritis in the area. She also became very depressed and suicidal after the injury and spent over a month in a psychiatric ward. There was some evidence Kirk had been depressed prior to the injury.

Kirk brought this action against WSU, its Board of Regents, and the Associated Students of WSU. The jury's verdict found the defendants had been negligent, and the negligence proximately caused Kirk's injuries and damages. The jury specifically found the defendants negligent for failure to provide adequate supervision, training, and coaching of the practices; failure to provide safety padding for the outdoor practices; failure to warn regarding the hardness of the astroturf surface; and failure to provide adequate literature regarding the proper and safe method of performing partner (double) stunts. The jury also found Kirk's own acts or omissions were the proximate cause of 27 percent of her injuries and reduced her damages by that amount. The total judgment for Kirk, including statutory fees and costs, was $353,791.

Both parties appeal various elements of the judgment, and this court granted direct review.

I

The defendants argue the trial court erred in refusing to adopt their proposed instructions regarding assumption of risk. They assert the assumption of risk doctrine should act as a complete bar to recovery and that the facts of this case present substantial evidence to support the proposed instructions to the jury on this issue.

The defendants' proposed instructions 12 and 13 read:

If plaintiff assumed the risk of harm from attempting to perform a shoulder stunt she may not recover damages for an injury resulting therefrom.

In order for plaintiff to have assumed such risk, she must have had actual knowledge of the particular danger and an appreciation of the risk involved and the magnitude thereof, and must thereafter have voluntarily assumed such risk.

For a person to act voluntarily he must have freedom of choice. This freedom of choice must come from circumstances that provide him a reasonable opportunity, without violating any legal or moral duty, to safely refuse to expose himself to the danger in question.

In determining whether the plaintiff assumed such risk, you may consider her maturity, intelligence, experience and capacity, along with all the other surrounding circumstances as shown by the evidence.

The basis of assumption of risk is the plaintiff's consent to assume the risk and look out for herself. Therefore she will not be found, in the absence of an express agreement, to assume any risk unless she had knowledge of its potential danger and the risk is generally recognized as dangerous. This means that she must not only be aware of the facts that created the danger but also must appreciate the nature, character and extent which make it unreasonable. Thus even though the plaintiff might be aware of a potential danger arising from an activity she is engaged in it may appear to her to be so slight as to be negligible. In such a case the plaintiff does not assume the risk and it is not a proper defense to the action.

Kirk in a cross appeal contests instruction 6 given by the court which allowed the jury to reduce Kirk's damages for participating in the decision to perform the stunt in question, participating in the decision to practice on the astroturf, or "[v]oluntarily participating in an activity which she knew to be dangerous and in which she knew she could be hurt by falling."

The issues raised by the parties require this court to review the status of assumption of risk in Washington. The law in effect at the time of the events leading to this action was the 1973 comparative negligence statute, RCW 4.22.010, Laws of 1973, 1st Ex.Sess., ch. 138, § 1, p. 949. The statute has since been superceded by the adoption of comparative fault in 1981. Laws of 1981, ch. 27.

The position of the assumption of the risk doctrine after the adoption of comparative negligence has been the subject of extensive discussion by various courts, including ours, as well as numerous commentators. See generally W. Keeton, Torts § 68 (5th ed. 1984); V. Schwartz, Comparative Negligence 153-180 (2d ed. 1986); 2 F. Harper & F. James, Torts 1162-92 (1956 & Supp.1968); Annot., Effect of Adoption of Comparative Negligence Rules on Assumption of Risk, 16 A.L.R. 4th 700 (1982); Shorter v. Drury, 103 Wash.2d 645, 695 P.2d 116, cert. denied, 474 U.S. 827, 106 S.Ct. 86, 88 L.Ed.2d 70 (1985); Lyons v. Redding Constr. Co., 83 Wash.2d 86, 515 P.2d 821 (1973). The commentators have agreed the general rubric "assumption of risk" has not signified a single doctrine but rather has been applied to a cluster of different concepts. Tiller v. Atlantic Coast Line R.R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 452, 87 L.Ed. 610, 143 A.L.R. 967 (1943) (Frankfurter, J., concurring); W. Keeton, at 496; F. Harper & F. James, at 1162. The commentators have identified and labeled four separate concepts to which "assumption of risk" has been applied in the past: express, implied primary, implied reasonable, and implied unreasonable. We recognized this classification scheme in Shorter, 103 Wash.2d at 655, 695 P.2d 116, and will begin with this framework, as explained below, for our current discussion of these issues.

Express and implied primary assumption of risk arise where a plaintiff has consented to relieve the defendant of a duty to the plaintiff regarding specific known risks. Where express assumption of risk occurs, the plaintiff's consent is manifested by an affirmatively demonstrated, and presumably bargained upon, express agreement. Implied primary assumption of risk is similarly based on consent by the plaintiff, but without "the additional ceremonial and evidentiary weight of an express agreement". W. Keeton, at 496. The elements of proof are the same for both. The evidence must show the plaintiff (1) had...