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Tincani v. Inland Empire Zoological Society6/16/1994
e the risks created by the defendant's failure to provide reasonably safe facilities. Scott, at 502-03. Similarly, Tincani did not assume the risks created by the Zoo's failure to provide reasonably safe facilities. To the extent the Zoo encouraged visitors, especially children, to explore the grounds without adequate warnings, physical restrictions, or supervision, the jury could have concluded the Zoo increased the foreseeable risk that patrons would exceed the area of invitation, thereby exposing themselves to dangerous conditions. The jury's conclusion Tincani "assumed the risk or was negligent" acts as a damage-reducing factor; it does not obviate the Zoo's duty to Tincani while he was on its premises.
Applying the analysis in Scott, we conclude Tincani did not, in a primary sense, "assume the risk" and, thus, did not relieve the Zoo of those duties it owed to him. See Scott, at 499. The jury's verdict indicates it concluded Tincani voluntarily chose to encounter a risk created by the Zoo's negligence. See Scott, at 497. This type of assumption of risk is called "unreasonable assumption of the risk". Scott, at 499. Unreasonable assumption of the risk retains no independent significance from contributory negligence after Washington's adoption of comparative negligence. Scott, at 497. As we concluded in Scott, such assumption of the risk does not bar all recovery because the jury may apportion the percentage of fault attributable to each responsible party. Scott, at 499. We therefore concur with the Court of Appeals that Tincani's assumption of the risk did not bar recovery.
Conclusion
We remand this case to the trial court for a new trial. As set forth in Blue Chelan, Inc. v. Department of Labor & Indus., 101 Wash. 2d 512, 681 P.2d 233 (1984), we have attempted to harmonize the jury's special verdict but find an irreconcilable conflict in the jury's answers. A new trial is therefore in order. We also concur with the ruling of the trial
court, affirmed by the Court of Appeals, that Tincani's actions did not constitute implied primary assumption of the risk.
Guy, J.
WE CONCUR:
Andersen, C.J.
Durham, J.
Utter, J.
Smith, J.
Brachtenbach, J.
Johnson, J.
Dolliver, J.
Madsen, J.
Disposition
Holding that the zoo was not liable as a licensee, that the instructions regarding the zoo's liability as an invitee were erroneous, that the jury's answers to special interrogatories were irreconcilably inconsistent, and that the student's assumption of the risk was not a complete bar to recovery, the court reverses the decision of the Court of Appeals and remands the case for a new trial.
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