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Tincani v. Inland Empire Zoological Society6/16/1994
nreasonable. Scott v. Pacific West Mt. Resort, 119 Wash. 2d 484, 496, 834 P.2d 6 (1992) (citing Shorter v. Drury, 103 Wash. 2d 645, 655, 695 P.2d 116, cert. denied, 474 U.S. 827, 88 L. Ed. 2d 70, 106 S. Ct. 86 (1985)). The Zoo contends Tincani's conduct constituted implied primary assumption of the risk. "Implied primary assumption of the risk means the plaintiff assumes the dangers that are inherent in and necessary to the particular sport or activity." Scott at 500-01. Assumption of the risk in this form is really a principle of no duty, or no negligence, and so denies the existence of the underlying action. Prosser & Keeton on Torts, at 497. Therefore, implied primary assumption of the risk remains a complete bar to recovery. Scott, at 495.
We hold as a matter of law that this is a case of implied unreasonable assumption of risk and, thus, subject to the rules of contributory fault. The Zoo objected to the trial court's instruction 22 on the basis that while it provided the appropriate elements of primary implied assumption of the risk, it framed its use as a contributory fault reduction and not as a complete bar. In response, the trial court ruled this was a case of implied reasonable assumption of risk as defined in Kirk v. WSU, 109 Wash. 2d 448, 746 P.2d 285 (1987). Reading directly from Kirk, the trial court concluded, "we favor the reasoning of Professor Schwartz allowing implied reasonable assumption of risk to be given to the jury as a factor for consideration." Verbatim Report of Proceedings, at 810; see Kirk, at 458. The court instructed the jury accordingly.
We find the trial court appropriately rejected the Zoo's argument. An implied primary assumption of the risk arises where a plaintiff "has impliedly consented (often in advance of any negligence by defendant) to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks." Scott, at 497 (citing Kirk, at 453); Restatement (Second) of Torts ยง 496C(1) (1965). A classic example of implied primary assumption of risk occurs in sports-related cases. "One who participates in sports 'assumes the risks' which are inherent in the sport." Scott, at 498.
In Scott a 12-year-old boy sustained head injuries while skiing at a commercial ski resort. In that case we reversed a summary judgment in favor of defendants and remanded the cause of action. Scott, at 503-04. We concluded while the boy assumed the risks inherent in the sport (implied primary assumption of risk), he did not assume the alleged negligence of the operator. However, we noted he may have been contributorily negligent (unreasonably assumed some risk). Scott, at 503. To the extent a plaintiff is injured as a result of a risk inherent in and necessary to a sport or other activity, the defendant owes no duty; and there is, therefore, no negligence. Scott, at 498. The Zoo argues Tincani completely assumed the risk of harm because the "risk of falling is inherent in and necessary to the activity of climbing down the face of a cliff." Supp. Brief of Petitioner, at 14. We disagree.
Tincani did not enter the Zoo to engage in the activity or sport of "rock climbing". Tincani visited the Zoo as part of a school field trip. Entrance and exploration of the Zoo was encouraged. The activity in which the students engaged was intended to be a "walk in the wild". The risk of serious injury while visiting a zoo should not be a risk inherent in and
necessary to such an activity. In Scott, we concluded while the plaintiff assumed the risks inherent in the sport of skiing, he did not assum
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