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      GHIEFJUSTIGE
                          1                                      SUSAN L. CARLSON
                                                              SUPREME COURT CLERK

 IN THE SUPREME COURT OF THE STATE OF WASHINGTON


 HEIDI JO HENDRICKSON, a single
 person,
                                                                  No. 94898-4
                Respondent,
       V.
                                                                    En Banc


 MOSES LAKE SCHOOL DISTRICT, a
 municipal corporation.                              Filed        NQV fl 1 2018

                 Petitioner.




      WIGGINS, J.—Heidi Jo Hendrickson brought this action against the Moses

Lake School District (Moses Lake or the District) to recover for injuries she suffered

while operating a radial table saw in a woodshop class at Moses Lake High School.

The jury found that Moses Lake was negligent but that its negligence was not a

proximate cause of Hendrickson's injuries. Hendrickson appealed, arguing that the

trial court erred in instructing the jury that Moses Lake owed a duty of ordinary care to

Hendrickson instead of a heightened duty of care. The Court of Appeals agreed with

Hendrickson and reversed, remanding for a new trial. Because school districts are

subject to an ordinary duty of care, not a heightened duty, we reverse the Court of

Appeals' ruling on this point.
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

      Hendrickson asks us to reverse the Court of Appeals' conclusion that Moses

Lake could assert an affirmative defense of contributory negligence by plaintiff

Hendrickson. Because contributory negligence applies here, we affirm the Court of

Appeals' ruling on this point. As a resuit, we reinstate the jury's verdict in

Hendrickson's case.



                      FACTS AND PROCEDURAL HISTORY

   I. Factual History

      Heidi Jo Hendrickson, a freshman at Moses Lake High School, injured herself

while in a woodshop class taught by Kevin Chestnut. Prior to the injury, Hendrickson

was using a radial table saw to cut a board. She initially used a push stick to guide

the board through the saw, but the board became stuck. Hendrickson put the push

stick down and attempted to dislodge the board from the saw with her hand. Her hand

came into contact with the saw, which severely cut her thumb. She received

emergency medical attention for her injury. Unfortunately, the cut was so severe that

it resulted in the partial amputation of her thumb.

      At the time of the injury. Chestnut was supervising other students in an area

outside of the room and could not see the table saw area. Chestnut testified at trial

about how he trained students before allowing them to use the table saw. He would

demonstrate two different types of cuts, and the students would make those cuts one

at a time under his supervision until they did so correctly. Students would also take a

written test. Then, the students would make approximately 40 to 80 cuts under his
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

supervision. After Hendrickson made a minimum of 60 correct cuts under Chestnut's
supervision, Chestnut permitted her to use the table saw on her own.

       Chestnut also testified that he instructed the students to always use a push

stick when cutting boards and if anything unusual happened, like the table saw

stopping, to turn off the saw and come get him. On the table saw that Hendrickson

used. Chestnut had removed the antikickback device and splitter because the saw

could become "extremely dangerous" if these pieces became misaligned.

        Hendrickson sued Moses Lake for her injuries, alleging that the District was

vicariously liable for Chestnut's negligence in training and supervising her use of the

table saw, as well as in maintaining the saw by removing the antikickback device and

splitter.

   II. Procedural History

       After both parties presented their evidence at trial, they argued extensively

about jury instructions. Hendrickson proposed the following instruction regarding

Moses Lake's duty of care (hereafter referred to as "Proposed Instruction No. 7"):

       A school district has a "special relationship" with a student in its custody
       and a heightened duty of care to protect him or her from foreseeable
        harm. Harm is foreseeable if the risk from which it results was known, or
        in the exercise of reasonable care should have been known.

        However, the trial court refused to give Proposed Instruction No. 7 and instead

gave Instruction No. 12 regarding Moses Lake's duty of care:

              Negligence is the failure to exercise ordinary care. It is the doing
        of some act that a reasonably careful person would not do under the


1 Originally, Hendrickson proposed a much longer Instruction. However, she agreed to
shorten the Instruction to the language quoted above.
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

      same or similar circumstances or the failure to do some act that a
      reasonably careful person would have done under the same or similar
      circumstances.


       Hendrickson filed a written exception to the trial court's decision to not give

Proposed Instruction No. 7.

       Hendrickson also objected to the trial court's decision to give a jury instruction

on contributory negligence. At trial, Moses Lake argued that Hendrickson was

negligent and that her failure to use a push stick and turn off the saw after the board

became stuck were the proximate causes of her injuries. Moses Lake relied on

Hendrickson's contributory negligence in its closing argument.

      The jury returned a verdict in favor of Moses Lake. Although it found that Moses

Lake was negligent, it concluded that the District's negligence was not the proximate

cause of Hendrickson's injuries. Hendrickson appealed this adverse decision to the

Court of Appeals.

      The Court of Appeals affirmed in part and reversed in part. Hendrickson v.

Moses Lake Sch. Dist, 199 Wn. App. 244, 246, 398 P.3d 1199(2017). It held that the

trial court erred by failing to give Proposed Instruction No. 7, because the jury had to

be instructed on Moses Lake's "enhanced" duty of care. id. at 249. It also held that it

was not error to instruct the jury on contributory negligence. Id. at 254. Both

Hendrickson and Moses Lake appealed this decision to us. We granted review of their

petitions.
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

                               STANDARD OF REVIEW

      "We review a trial court's decision to give a jury instruction 'de novo if based

upon a matter of law, or for abuse of discretion if based upon a matter of fact.'" Taylor

V. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517 (2017) (quoting

Kappelman v. Lutz, 167 Wn.2d 1, 6, 217 P.3d 286 (2009)).


                                       ANALYSIS

       We reverse the Court of Appeals in part and affirm the Court of Appeals in part.

First, we reverse the Court of Appeals' conclusion that the trial court erred by failing

to give a "heightened" duty of care instruction. A school district is held to a standard

of ordinary care, not heightened care. Thus, it was not error for the trial court to refuse

to give an instruction on heightened care and instead instruct the jury on the standard

of ordinary care. Second, we affirm the Court of Appeals' conclusion that the trial court

did not err by giving an instruction on comparative negligence. We hold that

comparative negligence is the default rule and applies in these circumstances.

    I. Jury Instructions

       Before we analyze whether the trial court erred by failing to give Proposed

Instruction No. 7, we first clarify the standard of care that Moses Lake owed to

Hendrickson. After reviewing our case law and other relevant resources, it is clear that

Moses Lake had a duty of ordinary, reasonable care to protect Hendrickson from

foreseeable harm. But, because Hendrickson requested an instruction for a

heightened duty of care. Proposed Instruction No. 7 was legally erroneous. The trial
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4


court did not abuse its discretion by refusing to give a legally erroneous instruction.

Thus, we reverse the Court of Appeals on this jssue.^

a. Ordinary Duty of Care

       We have long held that "[s]chooi districts have the duty 'to exercise such care

as an ordinarily responsible and prudent person would exercise under the same or

similar circumstances.'" N.L. v. Bethel Sch. Dist, 186 Wn.2d 422, 430, 378 P.3d 162

(2016)(quoting Briscoe v. Sch. Dist. No. 123, 32 Wn.2d 353, 362, 201 P.2d 697

(1949)). We adopted this duty of ordinary, reasonable care in McLeod v. Grant County

School District No. 128, 42 Wn.2d 316, 320, 255 P.2d 360 (1953). In that case, we

held that a school district could potentially be held liable for the rape of a student by

other students while on campus. Id. We based our holding on two factors: "first, the

relationship between the parties, and second, the general nature of the risk." Id. at

319. School districts have a custodial relationship with their students—"[i]t is not a

voluntary relationship." Id. As a result, the school district must "take certain

precautions to protect the pupils in its custody from dangers reasonably to be

anticipated." Id. at 320. The mere fact that the intervening act of a third party results

in harm does not necessarily absolve the school district of liability. Id. As long as the

harm is "reasonably foreseeable," a school district may be liable if it failed to take




2 At the Court of Appeals, Hendrickson argued that the trial court erred by giving Instruction
No. 18. The Court of Appeals failed to address this claim, and Hendrickson did not raise the
issue in her cross petition for review or address it in her briefing at this court. See
Hendrickson, 199 Wn. App. 244. As a result, we decline to reach the issue of whether the
trial court erred by giving Instruction No. 18. Sprague v. Spokane Valley Fire Dep't, 189 Wn.2d
858, 876, 409 P.3d 160(2018)("We will not consider arguments that a party fails to brief.").


                                              6
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4


reasonable steps to prevent that harm. Id. "[T]he question Is whether the actual harm

fell within a general field of danger which should have been anticipated." Id. at 321.

       In a later case, we described the duty of care as "enhanced," but we did not

heighten the school district's duty above ordinary, reasonable care. Christensen v.

Royal Sch. DIst. No. 160,156 Wn.2d 62,67,124 P.3d 283(2005). Instead, we merely

recognized the fact that unlike most parties, school districts have a duty to protect

their students from foreseeable harm, even when that harm is caused by third parties.

N.L., 186 Wn.2d at 429-30.

      This special relationship duty of care is discussed in sections 314 and 314A of

Restatement(Second) of Torts(Am. Law Inst. 1965). First, section 314 describes the

duty of care when the parties do not have a special relationship. These parties are not

required to anticipate or take affirmative action to protect others from harm unless the

object causing harm is within the party's direct control. See Restatement(Second)

OF Torts § 314("The fact that the actor realizes or should realize that action on his

part is necessary for another's aid or protection does not of itself impose upon him a

duty to take such action."). Therefore, the duty of most parties is to take ordinary,

reasonable care to avoid causing harm to the plaintiff.

       In contrast, section 314A describes the duty of care in the context of a special

relationship. Parties who take custody of another have a duty to "profecf them against

unreasonable risk of physical harm." Id.§ 314A(1 )(a). This duty "extends also to risks

...from the acts of third persons, whether they be innocent, negligent, intentional, or

even criminal." Id. § 314A cmt. d. Yet, even when the parties have a special
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

relationship, the standard of care remains one of ordinary, reasonable care: "The duty

in each case is only one to exercise reasonable care under the circumstances. The

defendant is not liable where he neither knows nor should know of the unreasonable

risk." Id. § 314A cmt. e.

       With these principles in mind, it is helpful to think of a school district's duty of

care as existing within a pool of risk. Ordinarily, parties operate within a limited pool

of risk—they are not required to take affirmative action to protect others from harm

unless the object causing harm is within the party's direct control. However, when

parties have a special custodial relationship, like the relationship between a school

district and its students, they enter a larger pool of risk and are required "to take

affirmative precautions for the aid or protection of the other." See id. § 314 cmt. a. This

duty extends to all reasonably foreseeable harm even when that harm is caused by

third parties. Id. § 314A cmt. d. As a result, school districts have a duty "to anticipate

dangers which may reasonably be anticipated, and to then take precautions to protect

the pupils in its custody from such dangers." McLeod, 42 Wn.2d at 320.^
       Having clarified the appropriate legal standard of care that Moses Lake owed

to Hendrickson, and upon which the jury was to be instructed, we now turn to



3 A school district's duty to anticipate and account for risks to students falls squarely within
the ordinary duty of care that school districts have toward students in their custody. To
anticipate such risks and account for them is precisely what a '"responsible and prudent
person would exercise under the . . . circumstances'" of the relationship between a school
and its students. N.L., 186 Wn.2d at 430 (quoting Briscoe, 32 Wn.2d at 362). This duty to
protect students is '"enhanced and solemn'" only to the extent that absent the special
relationship between schools and their students, the duty of care is normally only to avoid
causing harm to potential plaintiffs, not to protect them against harm from third parties. Id.
(quoting Christensen, 156 Wn.2d at 67); see Restatement(Second)of Torts §§ 314, 314A.

                                               8
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

Hendrickson's contention that the trial court abused its discretion by failing to give

Proposed Instruction No. 7.

b. Proposed Instruction No. 7

      Hendrickson asked the trial court to instruct the jury that Moses Lake had a

heightened duty of care to protect students from foreseeable harm:

      A school district has a "special relationship" with a student in its custody
      and a heightened duty of care to protect him or her from foreseeable
      harm. Harm is foreseeable if the risk from which it results was known, or
      in the exercise of reasonable care should have been known.

       Hendrickson's proposed instruction did not explain what she meant by a

"heightened" duty of care.

      A trial court need not give a legally erroneous Instruction. Crossen v. Skagit

County, 100 Wn.2d 355, 360, 699 P.2d 1244 (1983)("The clear rule is that a 'trial

court need never give a requested instruction that is erroneous in any respect.'"

(quoting Vogel v. Alaska S.S. Co., 69 Wn.2d 497, 503, 419 P.2d 141 (1966))); see

also Griffin v. W. RS, Inc., 143 Wn.2d 81, 90, 18 P.3d 558 (2001)("The trial court

therefore did not err... because it had no duty to give an incorrect instruction."). Here,

Proposed Instruction No. 7 was legally erroneous.

      As discussed above, Moses Lake had a duty to take ordinary, reasonable care

to protect Hendrickson from foreseeable harm. See N.L., 186 Wn.2d at 430. Yet,

Hendrickson asked the trial court to instruct the jury that Moses Lake had a

"heightened" duty of care to protect her from harm. We have never held that a school
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4


district is subject to a heightened duty of care.'^ instead, school districts are held to a

standard of ordinary care to protect their students from foreseeable harm. Id. As a

result, Proposed Instruction No. 7 was legally erroneous. The Proposed Instruction

likely would have misled the jury to think that more than ordinary, reasonable care

was required. We take this opportunity to reaffirm the standard of ordinary, reasonable

care of school districts to protect their students from foreseeable harm and hold that

juries should be instructed accordingly.

       Hendrickson's Proposed Instruction No. 7 also included the term "foreseeable."

Hendrickson now argues on appeal that the court should have instructed the jury on

foreseeability. Hendrickson Suppl. Br. at 6 ("A school's duty is 'enhanced' and

'heightened' in the sense that it extends to all foreseeable risks of harm that occur

within the scope of the school-student relationship."); Hendrickson Answer to Amicus

Curiae Mem. of Wash. Sch. Risk Mgmt. Pool at 2 ("It is necessary to instruct the jury

regarding the duty of reasonable care with respect to all risks of harm within the

school-student relationship."). For several reasons, we reject Hendrickson's

argument.

       Hendrickson's only request for an instruction on foreseeability was her

Proposed Instruction No. 7, which mentions foreseeability, but only as part of the

"heightened duty of care to protect [a student] from foreseeable harm." Although an



^ In contrast, the Court of Appeals has occasionally described the duty as "heightened." See,
e.g., Schwartz v. Elerding, 186 Wn. App. 608,618,270 P.3d 630(2012)(stating that "McLeod
recognized that a heightened duty was owed"). To the extent that the Court of Appeals' cases
describing the duty as one of "heightened" care, rather than ordinary care, have resulted in
situations where more than reasonable care was required, they are inaccurate in this regard.


                                             10
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4


instruction on foreseeability would not have been erroneous on its own, an instruction

on the heightened duty of care would have been erroneous, as discussed above. This

language rendered Proposed Instruction No. 7 incorrect. The trial judge did not err in

refusing to give it.

       There is a corollary to the principle that a trial judge is not required to give an

incorrect instruction to the jury. "So long as the trial court understands the reasons a

party objects to a jury instruction, the party preserves its objection for review."
Washburn v. City of Federal Way, 178 Wn.2d 732, 747-48, 310 P.3d 1275(2013). For

example, in Washburn, we rejected the defendant's argument that the plaintiff had

failed to preserve objections to jury instructions in the earlier case of Crossen, 100

Wn.2d 355. We described our holding in Crossen as follows;

       We reversed, holding that a party preserves an allegation of instructional
       error for review if they object and the trial court understands the
       substance of the objection. Crossen, 100 Wn.2d at 359. We reviewed
       the trial record, found "extended discussions" about the jury instructions,
       and determined that the trial court understood the nature of Crossen's
       objection.

Washburn, 178 Wn.2d at 747 (quoting Crossen, 100 Wn.2d at 359).

       This corollary rule cannot help Hendrickson because she never asked for a

foreseeability instruction other than the erroneous Proposed Instruction No. 7. Nor did

the parties in this case engage in the "extended discussions" about an instruction on




                                            11
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

foreseeability. As a result, we conclucle that it was not error for the trial court to fail to

give the legally erroneous Proposed Instruction No. 7.®

c. Instruction No. 12

       We now address Hendrickson's argument that Instruction No. 12, the jury

instruction given on the ordinary duty of care, was erroneous. We disagree for the

following reasons.

       '"Jury instructions are sufficient when they allow counsel to argue their theory

of the case, are not misleading, and when read as a whole properly inform the trier of

fact of the applicable law.'" Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d

851, 860, 281 P.3d 289 (2012)(quoting Bodin v. City of Stanwood, 130 Wn.2d 726,

732, 927 P.2d 240 (1996)). When a jury instruction erroneously states the law and

prejudices a party, we must reverse. Gregoire v. City of Oak Harbor, 170 Wn.2d 628,

635, 244 P.3d 924 (2010). "Prejudice is presumed if the instruction contains a clear

misstatement of the law; prejudice must be demonstrated if the instruction is merely

misleading." Anfinson, 174 Wn.2d at 860.

       Here, the school district owed Hendrickson a duty of ordinary care. N.L., 186

Wn.2d at 430. Instruction No. 12 described the duty of ordinary care as follows;

       Negligence is the failure to exercise ordinary care. It is the doing of some
       act that a reasonably careful person would not do under the same or
       similar circumstances or the failure to do some act that a reasonably
       careful   person    would    have done under the same or similar
       circumstances.


® There would have been nothing erroneous about an instruction that stated that the schooi
had a special relationship with Hendrickson. Schools do have a special relationship with their
students. Restatement(Second) of Torts §§ 314, 314A. Proposed Instruction No. 7 was
erroneous because it included the language about the heightened duty of schools to their
students, not because of its reference to this special relationship.


                                             12
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4



      This is an accurate statement of the duty of ordinary care. See, e.g., Woodward

V. Taylor, 184 Wn.2d 911,920, 366 P.Sd 432(2016)('"ordinary care'... is defined as

'that degree of care which an ordinarily careful and prudent person would exercise

under the same or similar circumstances or conditions'"(quoting Gordon v. Deer Park

Sch. Dist. No. 414, 71 Wn.2d 119, 122, 426 P.2d 824 (1967))). Thus, Instruction No.

12 was not a "clear misstatement" of the duty owed by the school district.

      Because Instruction No. 12 was not a "clear misstatement" of the law, we

cannot presume it was prejudicial. Anfinson, 174 Wn.2d at 860. Instead, we must

decide whether Instruction No. 12 prejudiced Hendrickson by preventing her from

arguing her theory of the case, misleading the jury, and misinforming the jury of the

applicable law.

      We hold that Instruction No. 12 did not prevent Hendrickson from arguing her

theories of negligence in this case. Hendrickson alleged ^that Moses Lake was
negligent in one or more of the following ways:(1) Moses Lake "[tjailed to use and

maintain required safety equipment and guards";(2) Moses Lake "[fjailed to provide

reasonable instruction to [Hendrickson]"'; and/or (3) Moses Lake "[fjailed to

reasonably supervise the plaintiff on the use of the table saw." To prevail on these

claims, Hendrickson had to prove that Moses Lake failed to exercise ordinary care in

its supervision and instruction of Hendrickson or its maintenance of the table saw. See

N.L., 186 Wn.2d at 430(holding that "[sjchool districts have the duty 'to exercise such

care as an ordinarily responsible and prudent person would exercise under the same

or similar circumstances'"(quoting Briscoe, 32 Wn.2d at 362)).


                                          13
Heidi Jo Hendrickson v. Moses Lake Sch. Dist
No. 94898-4

       Contrary to Hendrickson's assertions, it was not necessary to instruct the jury

on foreseeability to argue these theories of negligence. The parties did not dispute the

existence of Moses Lake's duty to protect Hendrickson from foreseeable harm. See,

e.g., Clerk's Papers(CP)at 352(Hendrickson Trial Br.)("In this matter, it is undisputed

that the School District owed a duty to Ms. Hendrickson."), 506(Moses Lake Trial Br.)

("The District does owe Ms. Hendrickson a duty of reasonable care, which includes

proper supervision and the duty to use reasonable care to protect Ms. Hendrickson

against foreseeable risks."). Rather, the parties disputed whether that duty was an

ordinary one or a heightened one and whether Moses Lake satisfied its duty.®

Compare CP at 506 ("Mr. Chestnut did provide this care when he trained

[Hendrickson] how to safely use the table saw."), with CP at 4("Chestnut's instructions

and supervision were grossly insufficient to ensure Hendrickson's safe and proper use

of the radial table saw."). Furthermore, neither party argued that the harm Hendrickson

suffered was unforeseeable. Thus, because neither the duty to protect from

foreseeable harm nor the injury's foreseeability were disputed in this case, an

instruction on foreseeability was not necessary. ^ Because Instruction No. 12

accurately stated the duty of ordinary care, it allowed Hendrickson to argue her




® The parties also disputed whether the District could assert an affirmative defense of
contributory negligence. This issue is discussed infra.
^ We do not address whether it may be necessary to instruct the jury on matters of
foreseeability in other cases. See, e.g., Sage v. N. Pac. Ry. Co., 62 Wn.2d 6, 12, 380 P.2d
856 (1963) (stating that because the plaintiff's theory of negligence in a case turned on
foreseeability, the jury should have been instructed on the "element of foreseeability as such
relates to negligence").


                                             14
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4


theories of negligence in this case, and an instruction on foreseeability was not

required, nor was its absence prejudicial.

      We also hold that Instruction No. 12 was not misleading. Again, Hendrickson

argued that Moses Lake was negligent because Chestnut improperly removed the

antikickback device and splitter from the table saw and/or Chestnut did not exercise

reasonable care in his instruction and supervision of Hendrickson while she used the

saw. Instruction No. 12 properly informed the jury in its determination of whether

Moses Lake satisfied its duty of ordinary care in these circumstances. Instruction No.

12 advised the jury that it should find negligence if Moses Lake failed to exercise

ordinary care; it also accurately defined what constituted ordinary care. Compare CP

at 1528, with Woodward, 184 Wn.2d at 920. Ultimately, the jury found that Moses

Lake was negligent.

      The jury's special verdict did not specify under which theory or theories the jury

found that the District was negligent. The Court of Appeals relied on this fact when it

concluded that "it is possible, if not probable, that the jury found the district negligent

as to only one of Ms. Hendrickson's theories." Hendrickson, 199 Wn. App. at 250-51.

The Court of Appeals went on to conclude that this was evidence of prejudice because

the jury was not properly instructed on the duty of care. Id. at 249. This is not a

sufficient basis on which to overturn the jury's verdict here. The jury was properly

instructed on the applicable standard of ordinary care, and because foreseeability was

not at issue, it was unnecessary to give the jury an instruction on foreseeability.

Consequently Instruction No. 12 did not mislead the jury. Chhuth v. George, 43 Wn.



                                             15
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4


App. 640, 651, 719 P.2d 562 (concluding that "since the court properly instructed the

jury, there is no basis for disregarding the verdict"), review denied, 106 Wn.2d 1007

(1986).

      Finally, we hold that when read in context with the other jury instructions.

Instruction No. 12 properly informed the jury of the applicable law. As discussed

above. Instruction No. 12 was an accurate statement of the law regarding ordinary

care in this case. The other instructions, such as those regarding proximate cause,

were also correct. As a result, the jury was properly informed about the law applicable

to Hendrickson's case.

       Because Instruction No. 12 allowed Hendrickson to argue her theories of

negligence against the District, was not misleading, and when read in context with the

other instructions appropriately instructed the jury, we hold that the trial court did not

err by giving the jury Instruction No. 12.

       In sum, because Hendrickson requested a jury instruction for a heightened duty

of care, rather than ordinary care. Proposed Instruction No. 7 was misleading and

contained an erroneous statement of the law. Consequently, the trial court did not

abuse its discretion by failing to give Proposed Instruction No. 7. Crossen, 100 Wn.2d

at 360-61. Nor did the trial court err by giving Instruction No. 12. As a result, we

reverse the Court of Appeals on this issue.

   11. Contributory Negligence

       We now turn to Hendrickson's argument that Moses Lake cannot assert

contributory negligence as an affirmative defense. After reviewing the arguments and



                                             16
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

relevant case law, we hold that the trial court did not err by instructing the jury on

contributory negligence.

      The default rule is that a defendant may assert an affirmative defense of

contributory fault against a plaintiff. RCW 4.22.005. Under the "Tort Reform Act of

1986," the trier of fact is required to apportion fault to every person or entity that

caused the claimant's damages. RCW 4.22.070(1) ("In all actions involving fault of

more than one entity, the trier of fact shall determine the percentage of the total fault

which is attributable to every entity which caused the claimant's damages except

entities immune from liability to the claimant under Title 51 RCW. The sum of the

percentages of the total fault attributed to at-fault entities shall equal one hundred

percent."). In situations of contributory negligence, the claimant may be one of those

parties to which the trier of fact must apportion fault. When a jury concludes that a

plaintiff contributed to his or her damages by his or her own negligence, the court

reduces the plaintiff's award by a proportionate amount:

      In an action based on fault seeking to recover damages for injury or
      death to person or harm to property, any contributory fault chargeable to
      the claimant diminishes proportionately the amount awarded as
      compensatory damages for an injury attributable to the claimant's
      contributory fault, but does not bar recovery.

RCW 4.22.005.


      Allocation of contributory fault is not allowed in a few situations, none of which

applies here. We have held that a school district may not assert a defense of

contributory negligence when a student is sexually abused by a teacher. Christensen,

156 Wn.2d at 70-71. We reasoned that as a matter of public policy, "children do not



                                           17
Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4


have a duty to protect themselves from sexual abuse by their teachers." Id. at 70. We

also noted that children under 16 are legally incapable of consenting to a sexual

relationship with a teacher. Id. at 64. Ultimately, we concluded that contributory fault

does not apply "because [a student] lacks the capacity to consent and is under no

legal duty to protect herself from the sexual abuse." Id. at 64-65.

      We also held that a prison may not assert a defense of contributory negligence

in situations of inmate suicide. Gregoire, 170 Wn.2d at 631. We reasoned that "the

injury-producing act—here, the suicide—is the very condition for which the duty [to

protect the inmate] is imposed." Id. at 641. Thus, any instruction on an inmate's

contributory negligence would absolve a prison of its duty to protect that inmate from

injuring him- or herself. Id. at 643-44. This de facto immunization from liability for

inmate suicide was "unsupportable from a policy perspective." Id.

       Hendrickson relies on these cases to argue that contributory negligence is an

incompatible defense in situations of school district negligence. However, we have

never held that contributory negligence is inapplicable in all cases of school district

negligence. In fact, we have acknowledged the right of a school district to raise

contributory negligence in multiple cases. See, e.g., Briscoe, 32 Wn.2d at 366 ("[T]he

very most that can be said of a charge that the boy's actions constituted contributory

negligence is that it is a jury question, under proper instructions to be given by the




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Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

court.").® We have also long recognized the general rule that children over the age of

six may be found contributorlly negligent. See Graving v. Dorn, 63 Wn.2d 236, 238-

39 & n.2, 386 P.2d 621 (1963)(concluding that children over the age of six may be

contributorlly negligent after a review of 40 decisions). Both Christensen and Gregoire

are exceptions to the general rule of contributory negligence and are distinguishable

from Hendrickson's case.

       Unlike the student in Christensen, there is no legal bar preventing Hendrickson

from consenting to use the table saw that caused her injuries. 156 Wn.2d at 64. Nor

is there a per se rule barring contributory negligence in situations where a victim is

legally incapable of consent. See, e.g., Schooley v. Pinch's Deli Mkt., Inc., 134Wn.2d

468, 481, 951 P.2d 749 (1998)(applying contributory negligence in a case where the

minor victim was legally incapable of consenting). And, unlike the inmate in Gregoire,

Hendrickson was not engaged in intentional self-harm; thus, the "application of



® See also Eckerson v. Ford's Prairie Sch. Dist. No. 11,3 Wn.2d 475, 487, 101 P.2d 345
(1940)("The rule is that contributory negligence is ordinarily a question of fact for the jury to
determine. Under the evidence as heretofore detailed, we think that, upon that issue, a
question was presented for the jury's determination."); Gattavara v. Lundin, 166 Wash. 548,
555, 7 P.2d 958(1932)(holding that the issue of contributory negligence was a matter for the
jury in the context of a lawsuit against a school district); Rice v. Sch. Dist. No. 302, 140 Wash.
189, 194, 248 P. 388 (1926)("Contributory negligence, set up in the answer, was under the
evidence in this case, a matter for the jury under proper instructions which were given, and
to which instructions no exceptions were taken that are urged on the appeal."); Hutchins v.
Sch. Dist. No. 81, 114 Wash. 548, 554, 195 P. 1020 (1921) ("In the instructions, the court
clearly and fully defined contributory negligence and its effect, and pointed out that, in
considering this defense, the jury should pass upon the question as to whether the boy
appreciated the dangers to which he was subjected and that his appreciation would depend
upon his intelligence and experience more than upon his age."); Yurkovich v. Rose, 68 Wn.
App. 643, 656, 847 P.2d 925(1993)("It is evidence that [the student] voluntarily encountered
a risk that had already been created by the negligence of the defendant. In such cases, the
plaintiffs conduct is a form of contributory negligence, and if fault is found it operates only to
reduce the amount of plaintiffs recovery.").


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Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4

contributory fault to her conduct would not effectively immunize the district from

liability." Hendrickson, 199 Wn. App. at 254.

      Hendrickson has failed to offer any other context-specific reasons for why

contributory negligence should not apply here. Instead, she argues generally that the

existence of a special relationship between her and Moses Lake should bar the

application of contributory negligence. We disagree. As the parties acknowledged at

oral argument, to our knowledge, no state has barred the application of contributory

negligence in cases of school district negligence. See Wash. Supreme Court oral

argument, Hendrickson v. Moses Lake Sch. Dist., No. 94898-4(May 31, 2018), at 12

min., 15 sec. to 12 min., 22 sec.; 33 min., 56 sec. to 34 min., 7 sec., video recording

by TVW, Washington State's Public Affairs Network, http://www.tvw.org. We also find

no support for such a rule in our case law or the Restatement (Second) of Torts.

Consequently, we decline to adopt a new rule barring contributory negligence here.

                                     CONCLUSION

      In conclusion, we reverse the Court of Appeals in part and affirm in part. We

hold that the trial court did not err by failing to give Proposed Instruction No. 7 because

it was misleading and erroneously stated the applicable law. We also hold that the

trial court did not err by giving Instruction No. 12, which appropriately advised the jury

in this case. Finally, we hold that the trial court did not err by instructing the jury on

contributory negligence. As a result, we reinstate the jury's verdict.




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Heidi Jo Hendrickson v. Moses Lake Sch. Dist.
No. 94898-4




WE CONCUR.




                                                A




       4.




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