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Tincani v. Inland Empire Zoological Society6/16/1994
duty to protect invitees even from known or obvious dangers. This occurs when a possessor "should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A(1).
Reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he [or she] will not discover what is obvious, or will forget what he [or she] has discovered, or fail to protect . . . against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable [person] in [that] position the advantages of doing so would outweigh the apparent risk.
(Italics ours.) Restatement (Second) of Torts § 343A, comment f (1965). Distraction, forgetfulness, or foreseeable, reasonable advantages from encountering the danger are factors which trigger the landowner's responsibility to warn of, or make safe, a known or obvious danger.
Regardless of the error in instruction 20, the jury could not, as a matter of law, base its verdict on Tincani's earlier status of invitee. Plaintiff's argument rests on a misconception: a breach of duties to Tincani as an invitee remains an actionable claim even though Tincani suffered injuries while a licensee. That is incorrect. The negligent failure to prevent an invitee from straying into prohibited areas extends the area of invitation; it does not, as plaintiff's argument presumes, create a separate claim for negligence. Egede-Nissen v. Crystal Mt., Inc., 93 Wash. 2d 127, 133, 606 P.2d 1214 (1980) (jury could not base negligence verdict on landowner's failure to make reasonable effort to mark area of invitation).
If the Zoo were negligent in creating boundaries, the area of invitation would have extended to all places a zoo patron reasonably believed were held open to her. Once the patron strayed beyond that extended area, though, the patron would become a licensee with a corresponding change in the Zoo's duties. Egede-Nissen, 93 Wash. 2d at 132-33.
Because the jury found Tincani strayed from the area of invitation and was a licensee when he fell, plaintiff's argument is insufficient to uphold the jury's finding of fault. Duties to invitees exist only when an individual is on the physical plot of land within the area of invitation. "The visitor has the status of an invitee only while he is on the part of the land to which his invitation
extends". Restatement (Second) of Torts § 332, comment l. Tincani suffered injury as a licensee, outside the area of invitation, and therefore he may not recover for prior claims as an invitee.
Given the complexity of this area of the law, the instructions and the special verdict form may have confused the jury. The trial court did not instruct the jury on the negation of duties caused by a change in status. If the jury did in fact premise its finding of fault on a breach of duties to invitees, this result would contradict the jury's finding that Tincani was a licensee, requiring a new trial. Furthermore, the court's instructions on negligence (instruction 9) and proximate cause (instruction 8) may have led the jury to believe it could find the Zoo negligent under a general duty of ordinary care. Question 2 on the special verdict form asks only whether the Zoo was negligent, not whether it was negligent given its specific duties based on Tincani's status.
If the jury had received proper instructions, could it reasonably conclude on this record that the Zoo violated duties
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