What Risks Are Assumed in Construction Work and When Can It Bar Recovery?

From the Desk of Kyle Riley:

A plaintiff’s recovery can be barred if the plaintiff consents to the risks of a specific hazard before encountering that hazard. In this case before the Washington Court of Appeals, defendant Spee West claimed that the plaintiff was barred from recovery because he assumed the risk of getting injured as a pipe layer. The Court then had to analyze whether being crushed by an excavator bucket was indeed a risk inherent to pipe laying that the plaintiff had assumed. The Court also discussed what evidence needs to be present for a lighting-up jury instruction to be appropriate.

Claims Pointer:

The Washington Court of Appeals reaffirmed that an implied assumption of the risk analysis must be limited to the specific risks inherent to the job. Thus, the plaintiff was not barred from recovery because while he may have assumed some risks inherent in pipe laying, he did not assume the specific risk of being crushed by an excavator bucket that was negligently operated.

Walter v. Spee West Construction Co., No. 82139-3-I, 2022 WL 593644 (Wash. Ct. App. Feb. 28, 2022).

Facts:

In April 2018, Spee West was working on a construction project and subcontracted Continental Dirt Contractors for utility installation. David Walter was employed as a pipe layer for Continental Dirt. To remove a sewer line with Scott White, an excavator operator, Walter was instructed to dig in a trench and install a pump. While in the trench, White began using the excavator to smash the concrete and remove it, this surprised Walter, but he eventually consented to the plan. Walter stood in a place where he could be seen by White and began to instruct White on where to bring the excavator bucket down. Instead of following Walter’s instructions, White kept bringing the excavator bucket closer to Walter and eventually crushed Walter’s legs.

Walter was taken to the emergency room and stayed in the hospital for three days. An MRI had shown that there was a hole in the cartilage behind Walter’s kneecap, a tear on his meniscus, and other bruising of his bones. Walter suffered from severe pain that did not improve with physical therapy or surgery. Walter sued Spee West for negligence stating that Spee West, through White, was negligent through its failure to follow Walter’s hand signals and continuing to move the excavator without looking at his hand signals.

At trial, a defense expert testified that the hole in the cartilage was not caused by the accident but by a prior soccer injury.  The court gave the jury a lighting-up instruction. At the end of the trial, Spee West requested an implied assumption of the risk jury instruction, which the court denied. Instead, the court gave the jury a comparative fault instruction. The jury found that Spee West was negligent and that Walter’s non-economic damages totaled $4.5 million. The jury found the plaintiff to be 10% at fault. Spee West appealed.

Law:

An implied assumption of the risk is a bar to recovery if a plaintiff consents to relieve the defendant of any duty regarding a specific hazard beforehand. To warrant this instruction the plaintiff must have a subjective understanding of the presence and nature of the specific risk and voluntarily choose to encounter that risk.

A lighting-up instruction is appropriate where an injury “lights up” or makes active a latent injury or weakened physical condition, the resulting disability can be attributed to the injury and not to the preexisting physical condition. Zavala v. Twin City Foods, 185 Wash App 838, 860, 343 P.3d 761 (2015).

Analysis:

Spee West argued that Walter was aware that pipe laying involves the risk of being injured by an excavator and that he voluntarily encountered this risk. The Washington Court of Appeals, however, found that there was no substantial evidence that an excavator operator ignoring hand signals is a risk inherent in pipe laying. Testimony by White stated that excavator operators are always supposed to follow the hand signals of whoever is in the trench. Walter had anticipated that he would be in control of the excavator, by means of directing White with hand signals, and did not consent to relinquish that control. Thus, Walter may have assumed the risks inherent to pipe laying, he did not assume the risk of negligent operation of the excavator. The Court held that the contributory negligence instruction was appropriate because there was evidence that Walter had assumed the risks inherent to pipe laying, but Spee West had failed to prove that Walter had consented to the specific risk of the excavator operator ignoring his hand signals.

Spee West also challenged the court’s decision to give lighting-up instructions, arguing that there was no evidence that a preexisting condition was lit up by the accident. The Court disagreed and found that substantial evidence supported the lighting-up element that a preexisting condition was made active. The defense expert had testified that the defect in his cartilage was not caused by the accident but had been there prior, and the plaintiff’s expert had testified that the defect was the source of Walter’s pain. Thus, the Court held that the trial court’s decision to give lighting-up instructions was soundly based upon the evidence in the record.

The Big Picture:

This case highlights that to prove a plaintiff assumed the risk, a defendant must prove that the plaintiff assumed the exact risk of the injury. It is not enough to argue that the plaintiff assumed the risks of the job, it must be shown that the injury was caused by a risk inherent to the job.  Plaintiffs can avoid an assumption of risk instruction by arguing that they did not assume the increased risk caused by the defendant’s negligence.  Additionally, this case reaffirms that a lighting-up instruction is appropriate unless there is sufficient evidence that the prior condition was symptomatic.