 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Boyce v. West11/16/1993
es are unenforceable. Blide, at 573.
[5, 6] A defendant who can point out to the trial court that the plaintiff lacks competent evidence to support an essential element of the plaintiff's case is entitled to summary judgment because a complete failure of proof concerning an element necessarily renders all other facts immaterial. Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 225 & n.1, 770 P.2d 182 (1989); Guile v. Ballard Comm'ty Hosp., 70 Wash. App. 18, 23, 851 P.2d 689, review denied, 122 Wash. 2d 1010 (1993). Evidence of negligence is not evidence of gross negligence; to raise an issue of gross negligence, there must be substantial evidence of serious negligence. Nist v. Tudor, 67 Wash. 2d 322, 332, 407 P.2d 798 (1965). Since a release of liability exculpates ordinary negligence, if it occurs, the plaintiff must establish gross negligence affirmatively to avoid enforcement of the release.
Mrs. Boyce neither alleged gross negligence in her complaint, nor amended it to make that allegation, nor provided the court with any evidence supporting an allegation of gross negligence. The only evidence of any degree of negligence presented by Mrs. Boyce consists of excerpts of the deposition testimony of her expert, Mr. Lewis. In those excerpts, Mr. Lewis expresses his opinion that Mr. West was negligent. However, as the trial court found, nothing in Mr. Lewis' testimony supports Mrs. Boyce's assertion that Mr. West was grossly negligent. Mrs. Boyce's allegation, supported by nothing more substantial than argument, is insufficient to defeat a motion for summary judgment. CR 56(e); Guile, at 25. Because there was no material issue of
fact as to the existence of gross negligence, an essential element for avoidance of the release of liability, summary judgment was proper.
Assumption of Risk
Mrs. Boyce, in response to respondents' alternative defense, also contends her son did not assume the risk of negligent instruction and supervision. She argues assumption of the risk, whether express or implied primary, bars recovery only for injuries resulting from known risks voluntarily assumed. Kirk v. WSU, 109 Wash. 2d 448, 453-54, 746 P.2d 285 (1987) and cases cited therein. Thus, to the extent Mr. Boyce's death resulted from other unknown risks, created by the defendants, Mrs. Boyce argues Mr. West and Gonzaga remain liable. Kirk, at 455. See also Scott v. Pacific West Mt. Resort, 119 Wash. 2d 484, 499, 834 P.2d 6 (1992).
In its memorandum decision, the trial court blurs the distinction between express assumption of the risk and implied primary assumption of the risk and refers to "express primary assumption of the risk." The confusion is understandable; the entire doctrine is surrounded by confusion. Scott, at 496. Express primary assumption of risk arises out of a contract concept; implied primary assumption of risk arises out of a tort concept. Scott, at 496-98. Identical in result to a release of liability which exculpates for ordinary negligence if it occurs, express and implied primary assumption of risk exculpate by shifting the duty of care from the defendant to the plaintiff, thus preventing negligence from occurring. Express assumption of risk bars a claim resulting from risks actually assumed by the plaintiff; implied primary assumption of risk bars a claim resulting from specific known and appreciated risks. Scott, at 497. One who participates in sports implied
Page 1 2 3 4 5 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|