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Tincani v. Inland Empire Zoological Society6/16/1994
d not constitute implied primary assumption of the risk.
ANALYSIS
I
Status Determines Duty of Care
A cause of action for negligence requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of
that duty, (3) a resulting injury , and (4) a proximate cause between the breach and the injury. Pedroza v. Bryant, 101 Wash. 2d 226, 228, 677 P.2d 166 (1984). The threshold determination of whether the defendant owes a duty to the plaintiff is a question of law. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash. 2d at 220, 802 P.2d 1360 (1991) (citing Pedroza, 101 Wash. 2d at 228). In premises liability actions, a person's status, based on the common law classifications of persons entering upon real property (invitee, licensee, or trespasser), determines the scope of the duty of care owed by the possessor (owner or occupier) of that property. Van Dinter v. Kennewick, 121 Wash. 2d 38, 41, 846 P.2d 522 (1993); Younce v. Ferguson, 106 Wash. 2d 658, 666-67, 724 P.2d 991 (1986). See generally W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Torts ยงยง 58-61 (5th ed. 1984) (hereafter Prosser & Keeton on Torts).
The parties dispute the duty of care the Zoo owed Richard Tincani at the time his injury occurred. By special verdict, the jury found Tincani was a licensee at the time he was climbing on the cliff. The jury further found the Zoo, the Moses Lake School District, and Tincani were negligent, and such negligence, in each case, was a proximate cause of Tincani's injuries. The Zoo appealed, claiming the trial court erred in several of its instructions to the jury regarding the duty owed by a zoo operator. The Court of Appeals affirmed the judgment, holding the Zoo owed Tincani, a 14-year-old child, a duty of reasonable care regardless of his status on the property. Tincani 66 Wash. App. at 858. In view of its holding, the Court of Appeals declined to address the Zoo's claimed errors regarding the trial court's instructions to the jury relating to Tincani's status on the property. Tincani, at 859.
The Zoo argues the Court of Appeals erred by failing to apply Washington's common law rules governing premises liability to Tincani. The Zoo maintains while Tincani was a business invitee upon entering the Zoo, he lost that status and became a licensee when he departed from the main trail and began to climb upon the cliff. The Zoo argues it does not owe Tincani, a licensee, any duty to warn or otherwise protect him from risks associated with natural conditions on its
property, and the jury's verdict to that effect was error and conflicting.
Tincani agrees with the Zoo that, at some time after entering the Zoo, he strayed beyond the area of his invitation and became a licensee. Tincani disagrees with the Zoo that once he became a licensee any and all prior violations of the duties owed to him as a business invitee were forgiven. Tincani maintains while he was a business invitee, the Zoo was negligent because it failed to warn him of the known dangerous condition of the cliff or to make the condition safe. Tincani argues because the jury was properly instructed with regard to proximate cause, there is substantial evidence to support the jury's verdict one or more of the alleged violations of the Zoo's duty proximately caused his injuries.
Court of Appeals Decision
We first discuss whether the Court of Appeals erred
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