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Tincani v. Inland Empire Zoological Society6/16/1994
Zoo's Duty to Warn
Having rejected the basis for the Court of Appeals' holding, we next decide whether the jury's special verdict is sustainable. For a general verdict,
the determinative issue is whether there was evidence or reasonable inferences arising therefrom to sustain a verdict in plaintiff's favor. The evidence must be considered in a light most favorable to plaintiff. Shelby v. Keck, 85 Wash. 2d 911, 913, 541 P.2d 365 (1975).
Washburn v. Beatt Equip. Co., 120 Wash. 2d 246, 261, 840 P.2d 860 (1992). Our review of a special verdict differs slightly from that of a general verdict. See CR 49(a) (Special Verdict). If the jury's answers to the special interrogatories (the questions which constitute the special verdict) conflict, the court attempts to harmonize the answers. However, if the court cannot reconcile the answers, "neither a trial court nor an appellate court may substitute its judgment for that which is within the province of the jury. . . . The only proper recourse is to remand the cause for a new trial." (Citations omitted.) Blue Chelan, Inc. v. Department of Labor & Indus., 101 Wash. 2d 512, 515, 681 P.2d 233 (1984).
The jury gave the following answers on the special verdict form:
QUESTION NO. 1: What was the status of plaintiff Richard Tincani at the time he was climbing on the rock from which he fell at Walk In the Wild Zoo? (Check only one of the answers)
Answer:
(a) Trespasser
(b) Licensee X
(c) Business Invitee
QUESTION NO. 2: Were any of the following negligent? Answer "yes" or "no" after the name of the defendant and the name of each entity not a party to this action.
Answer: Yes No
Defendant: Walk In the Wild Zoo X
Entity: Moses Lake School District X
If you answer Question No. 2 "no" as to defendant Zoo, sign and return this verdict. If you answer Question No. 2 "yes" as to the defendant Zoo, then answer Question No. 3.
QUESTION NO. 3: Was such negligence a proximate cause of injury to the plaintiff? Answer "yes" or "no" after the name of the defendant and each entity, if any, found negligent by you in Question No. 2.
Answer: Yes No
Defendant: Walk In the Wild Zoo X
Entity: Moses Lake School District X
QUESTION NO. 5: Was the plaintiff, Richard Tincani, negligent or did he assume the risk of injury ?
Answer (yes) or (no)
Answer: yes
QUESTION NO. 8: Assume that 100 percent represents the total combined fault which proximately caused the plaintiff, Richard Tincani's injury . What percentage of this 100% is attributable to the plaintiff, Richard Tincani's, negligence and/or assumption of risk and what percentage of this 100% is attributable to the defendant and entity whose negligence was found by you in Question No. 3 to have been the proximate cause of the injury to the plaintiff, Richard Tincani? (Your total must equal 100%).
Answer: Percentage
To Plaintiff: Richard Tincani 65%
To Defendant: Walk In The Wild Zoo 25%
To Entity: Moses Lake School District 10%
Clerk's Papers (CP), at 266-68.
The parties argue over the proper interpretation of these five answers. The Zoo claims it owed Tincani, a licensee, no duty to protect him from a natural condition with open and apparent dangers. According to the Zoo, once the jury ruled Tincani w
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