Ackerman v. Terpsma , 74 Wash. 2d 209 ( 1968 )

Finley, C. J.

(concurring)—I am in substantial agreement with the views expressed, and concur in the majority’s disposition of this appeal on the grounds that the host-guest statute applies and is a bar to plaintiff’s action for personal injuries. However, perhaps gratuitously, I wish to add that I have serious doubts as to the propriety of the instruction on “unavoidable accident” given to the jury by the trial court.

Apparently, unavoidable accident instructions are permissible under proper circumstances in most jurisdictions in the United States, and have been for a long time. See Annot., 65 A.L.R.2d 12 (1959). Yet, despite their longevity, there are several reasons why the giving of such instructions should be reevaluated and, in my judgment, discontinued. Such instructions are at best superfluous; usual negligence and contributory negligence instructions are sufficient. Unavoidable accident instructions may well create impressions in jurors’ minds that an additional burden is imposed upon plaintiffs to prove affirmatively that accidents were avoidable. Finally, there is considerable likelihood such instructions will becloud issues and confuse and mislead jurors.

There is some suggestion in our opinions that this court has already indicated its disapproval of unavoidable accident instructions. As early as 1942, in Brewer v. Berner, 15 Wn.2d 644, 131 P.2d 940 (1942), in which this court first articulated our present rule regulating use of unavoidable accident instructions,⁴ we disapproved of the use of such instructions unless it is clear that a jury has substantial evidence before it supporting a conclusion of unavoidability. In Cooper v. Pay-N-Save Drugs, Inc., 59 Wn.2d 829, 835, 371 P.2d 43, 47 (1962), this court stated that “it would appear better practice to omit . . . [giving an unavoidable accident instruction] except in those instances in which, quite plainly, it is peculiarly appropriate.”

Although this court has, on at least two occasions, reversed judgments because it was error to give unavoidable accident instructions,⁵ it has never reversed a trial court for refusing to give a requested instruction on unavoidable accident. Cooper v. Pay-N-Save, supra. It is for this reason that the committee established by the Supreme Court for promulgation of civil jury instructions has recommended that no instruction on unavoidable accident be given. See WPI 12.03.

In 1958, the California Supreme Court overruled a prior decision upholding unavoidable accident instructions, and held that such instructions were thereafter expressly disapproved. Butigan v. Yellow Cab Co., 49 Cal. 2d 652, 320 P.2d 500 (1958). The Butigan decision signaled the beginning of what has now become a decisive trend throughout the United States.⁶ In my judgment, this trend is a healthy one. I think the court should continue the trend, and thereby assure good riddance of a quite dubious anachronism in Washington decisional law.

Ward, J. Pro Tern., concurs with Finley, C. J.

October 10,1968. Petition for rehearing denied.

4 “. . . [A]n instruction on unavoidable accident is only authorized when the evidence shows or justifies an inference that an unavoidable accident has occurred as that term has been defined.” 15 Wn.2d at 650, 131 P.2d at 943.

5 Pakka v. Fitzpatrick, 53 Wn.2d 356, 333 P.2d 917 (1959); Brewer v. Berner, supra. In Van Ry v. Montgomery, 58 Wn.2d 46, 360 P.2d 573 (1961), this court affirmed a trial court order granting the plaintiff a new trial because of erroneously giving an unavoidable accident instruction.

6 See, e.g., Alaska Brick Co. v. McCoy, 400 P.2d 454 (Alaska 1965); Phoenix v. Camfield, 97 Ariz. 316, 400 P.2d 115 (1965); Lewis v. Buckskin Joe’s, Inc., 156 Colo. 46, 396 P.2d 933 (1964); Miller v. Alvey, 246 Ind. 560, 207 N.E.2d 633 (1965); Graham v. Rolandson, 150 Mont. 270, 435 P.2d 263 (1967); Vespe v. DiMarco, 43 N.J. 430, 204 A.2d 874 (1964); Fenton v. Aleshire, 238 Ore. 24, 393 P.2d 217 (1964); Camaras v. Moran, 219 A.2d 487 (R.I. 1966).