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Tincani v. Inland Empire Zoological Society6/16/1994
as a licensee, the jury, as a matter of law, had to
answer "no" to question 2. Absent the existence of a duty to Tincani, the Zoo could not be negligent.
In response, Tincani argues the jury could reasonably find the Zoo negligent for violations of duties owed to him as a business invitee. The special interrogatory does not indicate whether the Zoo breached a duty owed to Tincani while he was an invitee or licensee. Because the trial court properly instructed the jury on proximate causation, Tincani claims the jury could reasonably conclude violations of the Zoo's duties to Tincani as invitee were the proximate cause of his injuries.
The parties' arguments raise two questions: Could the jury reasonably find the Zoo at fault for violating duties to Tincani (1) as a licensee, or (2) as an invitee?
We conclude we cannot harmonize the jury's determination that Tincani was a licensee when he fell with its finding that the Zoo was negligent. Neither is sufficient to uphold the verdict. Therefore, we find an irreconcilable conflict among the jury's answers which only a new trial can resolve.
Duty to Warn Licensees of Natural Conditions
The jury found Tincani was a licensee at the time of his injury . The Restatement (Second) of Torts § 330 (1965) defines a licensee as "a person who is privileged to enter or remain on land only by virtue of the possessor's consent. Younce v. Ferguson, 106 Wash. 2d 658, 667, 724 P.2d 991 (1986). In Memel v. Reimer, 85 Wash. 2d 685, 538 P.2d 517 (1975), we adopted the Restatement (Second) of Torts § 342 to define a landowner's responsibility to licensees for dangerous conditions on the land. That section provides:
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if.
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he [or she] fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.
Restatement (Second) of Torts § 342 (1965), quoted in Memel, 85 Wash. 2d at 689; Younce v. Ferguson. 106 Wash. 2d at 667-68.
The duties in Restatement (Second) of Torts § 342 turn on the respective knowledge of landowner and licensee. First, the landowner must know, or have reason to know, about a hidden danger created by a natural condition. In Memel, we described the extent of the duty arising from this knowledge.
We are not requiring that the occupier either prepare a safe place, or that he [or she] affirmatively seek out and discover hidden dangers. What we do impose is a duty to exercise reasonable care where there is a known dangerous condition on the property and the occupier can reasonably anticipate that licensee will not discover or realize the risks. Under these circumstances, the landowner can fulfill his [or her] duty by either making the condition safe or by warning licensee of the condition and its inherent risks.
Memel, 85 Wash. 2d at 689.
Second, the licensee must not know, or have reason to know, about the dangers presented by a natural condition. A licensee's full understanding that a natural condition is dange
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