HOUSE BILL REPORT

HB 880

BYRepresentatives Dellwo, Bristow, McMullen, Wang, P. King, Heavey, Appelwick, Niemi and Wineberry

Revising provisions relating to negligence per se.

House Committe on Judiciary

Majority Report:     Do pass.  (9)

     Signed by Representatives Armstrong, Chair; Crane, Vice Chair; Appelwick, Heavey, P. King, Niemi, Patrick, Wang and Wineberry.

Minority Report:     Do not pass.  (5)

     Signed by Representatives Brough, Lewis, Moyer, Schmidt and Scott.

House Staff:Charlie Gavigan (786-7340)

AS REPORTED BY COMMITTEE ON JUDICIARY MARCH 6, 1987

BACKGROUND:

Tort law has generally been developed by the courts on a case-by-case basis.  The legislature has periodically intervened in order to bring about reforms deemed necessary by the legislature.  In 1986, the legislature made substantial changes to tort law to create what the legislature felt was a more equitable distribution of the cost and risk of injury and increase the availability and affordability of insurance.

A tort is a civil wrong or injury.  It consists of a violation of some duty owed to the plaintiff.  In a civil action dealing with a tort, a plaintiff must prove:  (1) a duty existed, (2) the duty was breached by the defendant, (3) foreseeability (a reasonably close causal connection between the conduct and the resulting injury), and 94) damages resulted.  A plaintiff's case can be made easier if the doctrine of negligence per se is applicable.  Negligence per se is generally defined as conduct, whether an action or an omission, which is treated as negligence without any argument or proof.  Violation of a statute, ordinance, or administrative rule is generally considered negligence per se in tort law.  The violation is conclusive as to negligence, but to recover plaintiff must still show:

(1)  the violation is the proximate cause of the injury;

(2)  the statute, ordinance, or rule must have been intended to protect a class of persons of which plaintiff is a member;

(3)  the statute, ordinance, or rule must have been intended to prevent the harm that occurred or address the hazard from which the harm resulted; and

(4)  defendant must be able to prevent the violation by exercise of ordinary care.

In 1986, the legislature abolished the doctrine of negligence per se except for statutes, ordinances, or rules dealing with electrical fire safety, smoke alarms, or driving while intoxicated from liquor or drugs.

SUMMARY:

Violation of a statute or ordinance can be considered negligence per se.  A breach of a duty imposed by an administrative rule is not negligence per se unless it relates to electrical fire safety, smoke alarms, or the operation of a motor vehicle.

Fiscal Note:    Not Requested.

House Committee ‑ Testified For:     Mary Ann Ottiger, Washington State Trial Lawyer's Association.

House Committee - Testified Against: Harold Fosso, State Farm Insurance; Ed Whitman, Architects and Engineers Legislative Council; Loren Winterscheid, Washington State Medical Association and Washington State Physician's Insurance Association.

House Committee - Testimony For:     The long standing tort doctrine of statutory negligence per se is reinstated.  This doctrine is necessary for efficient and effective adjudication of tort cases related to violating statutes.  Some fine tuning is necessary to 1986 tort reforms.

House Committee - Testimony Against: Statutes and rules can be difficult to interpret.  Violating administrative rules regarding the operation of a motor vehicle should not be negligence per se.  More time should pass before changing tort reforms.  Insurance costs are declining already based on the tort reforms.