WA Case Update: Can a Defendant’s Negligent Conduct Undermine an Assumption of Risk Argument?

From the desk of Kyle D. Riley: Is a plaintiff barred from recovering damages in a negligence lawsuit by voluntarily assuming the risk created by a defendant’s negligence?

Claims Pointer: Division II of the Washington Court of Appeals held that a plaintiff injured by a falling tree is not necessarily barred from recovery despite his voluntarily choice in encountering the risks inherent in cutting down large trees. Division II held that where the risk is increased by a defendant’s negligent conduct, the plaintiff’s voluntary assumption of the risk will be treated as contributory negligence and his recoverable damages will be reduced in light of his own comparative fault. This appears to reflect a split between Division II and Division III on primary assumption of the risk and will likely make it more difficult to obtain summary judgment in this setting.

Gleason v. Cohen, 46398-9-II, Washington Court of Appeals, Div. II (Feb. 24, 2016).

Leo Timothy Gleason (“Gleason”) was injured while helping Brian Cohen (“Cohen”) cut down trees on Cohen’s property. Gleason was not a professional logger, but had extensive experience cutting down trees. Cohen had two men cutting down trees when Gleason arrived on the property. Gleason expected the job would entail loading downed trees onto his personal trailer and transporting them to a mill. After stacking wood on the trailer, Cohen asked Gleason if he could help cut down a few more trees for $100 per tree. Gleason did not feel safe cutting down a specific tree because of its proximity to Cohen’s house, car and other obstacles. He also believed that Cohen’s workers improperly placed the choker chain on the tree and asked them to adjust it. The workers disagreed, indicating the choker was hooked up properly and was safe. Though he did not want to cut the tree down and knew it was unsafe, Gleason acquiesced because Cohen threatened to withhold payment. The falling tree struck and injured Gleason.

Gleason filed a...

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