In Washington, there are four separate areas of Assumption of Risk to be discerned
First, primary or express assumption of risk is by nature contractual and provides a complete defense to a claim.
Implied Reasonable Assumption of Risk
Second, implied reasonable assumption of the risk provides a defense when the plaintiff's actions were grossly negligent to the point of a wanton disregard for their own safety.
Implied Secondary Assumption of Risk
Third, implied secondary assumption of risk requires a subjective test to determine if the plaintiff actually knew and comprehended the risk.
Secondary Unreasonable Assumption of Risk
Finally, secondary unreasonable assumption of risk is subsumed under comparative fault. Therefore, the court must engage in near mental gymnastics to delineate whether the plaintiff's knowledge and conduct rose to the level of having assumed the risk, thereby precluding a claim.
Recent State of Washington Decision helps shed light on Assumption of Risk
In a recent decision, Gregoire v Oak Harbor 244 P.3d 924 (2010) the Washington Supreme Court determined that an inmate who had committed suicide in the Oak Harbor city jail did not assume the risk and the case was remanded back for a jury to determine the validity of his claim. The trial court and appellate court had allowed the claim to be dismissed as Oak Harbor had defended their claim utilizing this defense. The Supreme Court stated that assumption of risk did not apply in "special relationship" cases. Here, the jail guard was designated as a protector of the inmate from any self-inflicted harm. This is similar to the determination of a mentally unstable person under the care of a mental hospital requires the facility with supervisory control and their employees to provide more oversight and care for those in their care. This case is quite important in establishing the jails special relationship over inmates and keeping governmental workers accountable.
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