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Tincani v. Inland Empire Zoological Society6/16/1994
licensees and trespassers. It would be reversible error for the jury to disregard it Nichols v. Lackie, 58 Wash. App. 904, 907, 795 P.2d 722 (1990) (where verdict indicates a jury disregarded the court's instructions, a new trial is proper). We presume the jury followed lawful instructions. Hizey v. Carpenter, 119 Wash. 2d 251, 270, 830 P.2d 646 (1992) (we presume jury followed the court's instructions); Bordynoski v. Bergner, 97 Wash. 2d 335, 342, 644 P.2d 1173 (1982) (same).
Next, the jury reasonably could not, and did not, conclude Tincani failed to understand the risk of harm from the cliff. First, uncontradicted testimony from the sole eyewitness to the accident established Tincani knew or had reason to know the cliff was dangerous. Jorge Rodriquez, Tincani's companion at the Zoo, watched from a neighboring hill as Tincani tried to descend the rock face. On cross examination, Rodriquez conceded Tincani climbed partway down the cliff, climbed back to the to and then made another attempt down.
Q Now when you first saw Rick on top of the cliff, he tried to climb partway down that cliff; correct?
A Yes, that's correct.
Q And then he got stumped because he could go no further?
A Uh, I don't know about going no further, but as I remember, you know, from, you know, things that -- when he climbed back up, you know, you know, I thought, you know, he couldn't go any further down that trail.
Q He was trying to climb down and you figure he could go no further so he went back to the top?
A Yes.
Q And when he was back up on top of the cliff, you told him to go back, didn't you?
A Yes, I did.
Q And what did you mean by "go back"?
A Well, I assumed he had gotten up there by a trail, so I told him to go back on the trail, backtrack on the trail and come back from the trail he came on.
Q Go back the way you got up there, in other words?
A Yes.
Verbatim Report of Proceedings (VRP), at 540-41. Tincani disregarded the advice of his friend, tried for a second time to descend the cliff, and fell.
Given this and the evidence presented at trial, the jury could not reasonably conclude the Zoo breached its duties to Tincani as a licensee. Tincani presented evidence from a private investigator and an expert in ergonomics to establish the deceptiveness of the approach to the rock outcropping. Both testified they could not gauge the dangerousness of the drop off merely by looking down from the top, but neither attempted to climb partway down the rock face. See VRP, at 109-10 (testimony of David Williams); VRP, at 509 (testimony of Paul Champney).
Had Tincani fallen over the edge at the top or stumbled immediately, the jury could have relied on plaintiff's evidence. However, Tincani climbed partway down the outcropping, stopped, and then climbed back up. The only reasonable inference from this testimony was Tincani could not find an easy way down. Even if he had not appreciated the risk of falling while at the top of the outcropping, Tincani knew the cliff was dangerous when he climbed partway down. Thus, plaintiff's evidence could not establish a reasonable inference Tincani was unaware of the risk.
Second, by answering on question 5 that Tincani was negligent or assumed the risk, the jury had to have concluded Tincani knew "of the specific risk associated with climbing down the cliff' and "understood the nature of this risk". CP, at 61. The jury reached the only rea
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