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Tincani v. Inland Empire Zoological Society6/16/1994
by refusing to apply Washington's common law rules governing premises liability to 14-year-old Richard Tincani. The Court of Appeals acknowledged the jury was instructed the determination of whether the Zoo owed Tincani a duty depended upon the common law classifications of entrants upon land. Tincani, at 857 n.1. The court concluded, however, the Zoo owed Tincani a duty of reasonable care, "irrespective of his status on the property." Tincani, at 858. We disagree.
The authorities cited by the Court of Appeals do not support so broad a rule. In support of its holding, the Court of Appeals cited the following language from Ochampaugh v. Seattle, 91 Wash. 2d 514, 588 P.2d 1351 (1979):
Where activities are carried on by the possessor of land, we have imposed a duty of exercising reasonable care not to injure a child of whose presence the possessor or his agents is aware, regardless of the child's status, even though no attractive nuisance" is involved. . . .
Thus where there is negligence which causes injuries to a child, the law of this state affords a remedy.
Tincani, at 857 (quoting Ochampaugh, at 527).
The Court of Appeals' reliance on the Ochampaugh language is not dispositive. First, the quoted language was not the basis for the court's decision. In Ochampaugh, the plaintiff brought a wrongful death action against Seattle for the death of his two sons, ages 6 and 8, who drowned in a pond located on city property. The main issue before us in Ochampaugh was whether the pond owned by the City of Seattle constituted an "attractive nuisance". We affirmed the trial court's summary judgment in favor of Seattle, holding a body of water having natural characteristics and no hidden dangers not ordinarily found in such bodies of water is not an attractive nuisance. Ochampaugh. at 520-22.
Second, the Ochampaugh language quoted above was the court's response to the appellants' proposal the court repudiate the notion children can be trespassers and impose upon the landowner a duty of exercising reasonable care toward children, whose presence the landowner knows of or can reasonably anticipate. Ochampaugh, at 526. The court responded it had already done so with respect to artificial conditions upon the land by adopting the doctrine of attractive nuisance. With respect to activities carried on by the possessor of land, the court stated a possessor has a duty of reasonable care not to injure a very young child of whose presence the possessor is aware, regardless of the child's status, and even though no attractive nuisance is involved. Ochampaugh, at 527 (citing Sherman v. Seattle, 57 Wash. 2d 233, 356 P.2d 316 (1960) (3-year-old child severely injured by a lift apparatus located on the defendant's property), and Helland v. Arland, 14 Wash. 2d 32, 126 P.2d 594 (1942) (5-year-old child killed when a milk truck ran over her)).
The facts of this case do not require application of a duty of reasonable care based on either the "tender years" doctrine or the doctrine of attractive nuisance. Since Tincani was almost 15 when he was injured, he had long outgrown the "tender years". See McDermott v. Kaczmarek, 2 Wash. App. 643, 654-55,
469 P.2d 191 (1970) (a 7-year-old beyond tender years); Ochampaugh, at 526 (children ages 6 and 8 beyond tender years). Moreover, the cliff on which Tincani was injured was not an "active instrumentality" in the sense it was physically operated by the Zoo, nor was it an artificial condition upon the land.
The
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