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Tincani v. Inland Empire Zoological Society6/16/1994
gn warning patrons not to take this trail, nor were there any signs warning patrons of any rock outcroppings.
At the second split in the trail, Tincani went in one direction and the other boys went in another direction. Eventually the boys lost site of Tincani and ended up on different points of high ground. Jorge Rodriquez, one of the boys in the group, testified Tincani called out to him and asked him to wait. Rodriquez testified Tincani then tried to find a way down a rock outcropping to meet up with them. Tincani's first attempt to climb down was unsuccessful. Noticing Tincani was trying to figure out a way down, Rodriquez told Tincani to go back the way he had come and he would wait for him. Rodriquez testified Tincani then told him he had found another way down. Rodriquez observed Tincani proceeding down natural steps in the rock formation from which he jumped 3 to 6 feet to a rock ledge. From that ledge, Tincani lost his footing and fell approximately 20 feet to the ground, suffering serious injuries. Tincani has no recollection of his visit to the Zoo.
Procedural History
Tincani and his parents sued the Zoo, the Zoo's general manager, the Moses Lake School District, and the teachers who went on the trip. Tincani settled with the school district, dismissed the general manager and the teachers, and proceeded to trial against the Zoo. The Zoo moved for summary judgment, arguing it had no duty to warn Tincani of any dangers associated with the cliff, and he had assumed the risk. The trial court denied the Zoo's motion. The Zoo subsequently moved for a directed verdict. The trial court denied this motion as well.
By special verdict, the jury found Tincani had suffered damages in the amount of $1,044,199.66. The jury found Tincani, the Zoo, and the school district comparatively negligent and their respective actions were a proximate cause of
Tincani's injuries. The jury allocated 65 percent of the fault for Tincani's injuries to Tincani, 25 percent to the Zoo, and 10 percent to the school district. Accordingly, the trial court entered judgment against the Zoo in the amount of $261,049.92. The Zoo filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The Zoo's motion was denied and it appealed. The Court of Appeals affirmed the judgment, holding the Zoo owed Tincani a duty of reasonable care "irrespective of his status on the property." Tincani v. Inland Empire Zoological Soc'y, 66 Wash. App. 852, 858-62, 837 P.2d 640 (1992). The Court of Appeals also held Tincani's assumption of the risk was not a complete bar to his recovery against the Zoo. Tincani, 66 Wash. App. at 860. We granted the Zoo's petition for review. We reverse the Court of Appeals insofar as it holds a landowner owes a duty of reasonable care to children regardless of age or status and remand this matter for a new trial.
ISSUES
This case presents three issues for review:
1. Did the Zoo owe 14-year-old Richard Tincani a duty of reasonable care regardless of his age or status on the premises? We hold the Zoo did not owe such a general duty and decline to depart from the common law duties owed to invitees, licensees, and trespassers.
2. Did the jury reach an inconsistent verdict? We conclude the jury's finding that Tincani was a licensee at the cliff conflicts irreconcilably with its finding that the Zoo was partially at fault for Tincani's injuries.
3. Did Tincani's conduct constitute implied primary assumption of the risk of harm which represents an absolute bar to recovery? We hold Tincani's conduct di
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