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Tincani v. Inland Empire Zoological Society6/16/1994
to Tincani as an invitee? We believe it could. First, sufficient evidence exists to find the Zoo negligently marked the main trail, extending the area of invitation to include the cliff. Second, the jury could reasonably conclude the Zoo should have anticipated harm from the cliff despite its obvious dangers. Given the droves of young visitors to the Zoo, combined with an invitation to "walk in the wild", sufficient evidence exists to determine the Zoo should have foreseen harm as dictated in Restatement (Second) of Torts § 343A.
We express no opinion on the merits of these claims. We review them only to determine whether a new trial would result in a meaningful verdict or would be a useless exercise. We conclude a new trial is appropriate on these issues.
Judgment Notwithstanding the Verdict
Although the jury's conclusion Tincani was a licensee bars his recovery, a judgment for the Zoo notwithstanding the verdict is not appropriate here. The jury's answers to the special interrogatories reflect an irreconcilable conflict. On
the one hand, the jury's conclusion Tincani was a licensee when he fell implies the Zoo had no duty to warn him about the dangers posed by the cliff. On the other hand, the jury's conclusion the Zoo was negligent and at fault implies the Zoo did have such a duty to protect Tincani and failed to do so. Under Restatement (Second) of Torts § 343A, the Zoo has such a duty if it should have anticipated harm to invitees despite their knowledge of the cliff's dangers.
We cannot determine whether the jury's answer of licensee was correct and the finding of fault was in error, or the converse -- the answer of licensee was mistaken and the finding of fault was correct. The jury's answers therefore conflict irreconcilably.
The complexity of premises liability law raises the question whether the standard of care should continue to turn upon the common law distinctions between invitee, licensee, and trespasser, or whether such distinctions should be replaced by a negligence standard of reasonable care. See Ochampaugh v. Seattle, 91 Wash. 2d 514, 530-31, 588 P.2d 1351 (1979) (Dolliver, J., dissenting) (advocating abandoning the common law classifications in favor of a duty of reasonable care under all circumstances). That larger question is not now before us.
In this case, precedent demands we apply the common law classifications as a means of determining duty. See Younce v. Ferguson, 106 Wash. 2d 658, 662-66, 724 P.2d 991 (1986). In so doing, we conclude the Court of Appeals' holding impermissibly broadens premises liability law in Washington by extending a duty of reasonable care to children, regardless of their age or status on the premises. We therefore reverse the Court of Appeals insofar as it holds a possessor of land owes children a duty of reasonable care regardless of age or status.
II
Assumption of the Risk
The Court of Appeals held Tincani's assumption of the risk was not a complete bar to his recovery against the Zoo. Tincani v. Inland Empire Zoological Soc'y, 66 Wash. App. 852, 860,
837 P.2d 640 (1992). The Zoo disagrees and argues Tincani is completely barred from recovery because his conduct amounted to implied primary assumption of the risk. We agree with the Court of Appeals that Tincani's assumption of the risk did not bar recovery against the Zoo.
The assumption of risk doctrine is divided into four classifications: (1) express, (2) implied primary, (3) implied reasonable, and (4) implied u
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