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Tincani v. Inland Empire Zoological Society6/16/1994
rous ends any liability of the landowner for the condition.
Even though a dangerous condition is concealed and not obvious, and the possessor has given the licensee no warning, if the licensee is in fact fully aware of the condition and the risk, there is no liability to him [or her].
Restatement (Second) of Torts § 342, comment l. The jury was properly instructed regarding the Zoo's duties to Tincani as a licensee. No exception was made to the instruction.
Citing Swanson v. McKain, 59 Wash. App. 303, 796 P.2d 1291 (1990), the Zoo argues it did not owe Tincani, a licensee, any duty to warn or protect him from risks associated with the obvious, natural condition of the cliff. Swanson was injured after diving into shallow water off Camano Island in Puget Sound. Swanson sued the McKains, the owners of the home where he was staying, alleging they breached a duty to warn him of the dangers and characteristics of the tidal waters into which he dove. The Court of Appeals affirmed the trial court's dismissal of Swanson's lawsuit on summary judgment,
concluding as a matter of law that Swanson was a licensee and, as such, was owed no duty to warn of natural conditions. Swanson, at 309, 311. Relying on our decision in Ochampaugh v. Seattle, 91 Wash. 2d 514, 588 P.2d 1351 (1979) the court held "natural conditions constitute 'obvious and apparent' dangers as a matter of law, precluding liability on the part of a possessor toward a licensee." Swanson, at 314.
The rule for "natural conditions", established in Ochampaugh and developed in Swanson, merely restates the duties created under § 342 of the Restatement. It is not a separate defense to liability. See Restatement (Second) of Torts § 342, comment e (immaterial that a dangerous condition . . . is natural rather than artificial). The open and apparent dangers from a natural condition put a licensee on notice: proceed at your own risk. A reasonable landowner may presume licensees will discover the risk and, conversely, the licensee knows or has reason to know of the dangerous natural condition, extinguishing any duty to warn on the part of the landowner.
We agree with the Swanson court that a landowner has no duty to warn licensees about open and apparent dangers from a natural condition. As discussed below, a separate set of duties governs a landowner's duties to protect invitees from such dangers. However, we disagree with Swanson that natural conditions constitute open and apparent dangers as a matter of law. See Swanson, 59 Wash. App. at 314. The phrase "open and apparent" assumes knowledge on the part of the licensee. Whether a natural hazard is open and apparent depends on whether the licensee knew, or had reason to know, the full extent of the risk posed by the condition. That is a question of fact.
Turning to the issues in this case, could the jury reasonably find the Zoo at fault for violating its duties to Tincani as a licensee'? The trial court gave instruction 20, proposed by the Zoo, on the duty of care for dangerous natural conditions:
The duty of care which an owner or occupier of premises owes to a business invitee, licensee or trespasser does not require the owner or occupier to warn of, prevent access to or make safe a natural condition, the danger of which is open and apparent to everyone.
CP, at 259. If the jury found the Zoo at fault based on duties to licensees, the jury either had to disregard this instruction or conclude the danger from the cliff was not open and apparent. Instruction 20 states the law correctly for
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