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Tincani v. Inland Empire Zoological Society6/16/1994
sonable conclusion
available: Tincani knew or had reason to know climbing down the cliff was dangerous.
We find no grounds to uphold the jury's finding of fault based on a breach of duties to Tincani as licensee. The trial court upheld the jury's verdict, finding in part
the jury did take into consideration Instruction Number 20 and applied it to the, or used it in conjunction with the other instructions that had been given, including 13 [duties to invitees] and 14 [straying from area of invitation] and concluded at that point in time there was still some obligation on the part of the defendant to the plaintiff. Now whether it was because they felt that the danger was not that apparent, or exactly what the reasoning was, I do not know.
VRP, at 850. We find no evidence in the record Tincani did not know or have reason to know the rock outcropping was dangerous. Under § 342 of the Restatement (Second) of Torts, Tincani's knowledge of the risk bars any liability on the Zoo's part.
Duty to Warn Invitees
Plaintiff contends the jury found the Zoo at fault based on violations of duties to Tincani as a invitee. A landowner must follow a separate set of duties for invitees. Under Restatement (Second) of Torts § 343 (1965),
possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, [the possessor]
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
In contrast to what a licensee may expect, an invitee "is . . . entitled to expect that the possessor will exercise reasonable care to make the land safe for his [or her] entry". Restatement
(Second) of Torts § 343, comment b. Reasonable care requires the landowner to inspect for dangerous conditions, "followed by such repair, safeguards, or warning as may be reasonably necessary for [the invitee's] protection under the circumstances." Restatement (Second) of Torts § 343, comment b. The trial court correctly instructed the jury on these duties.
The trial court did not instruct the jury correctly, however, on the Zoo's duty regarding known or obvious dangers. Under Restatement (Second) of Torts § 343A,
(1) A possessor of land is not liable to . . . invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
We conclude, as did the Court of Appeals, that this section of the Restatement is the appropriate standard for duties to invitees for known or obvious dangers. See, e.g., Ford v. Red Lion Inns, 67 Wash. App. 766, 840 P.2d 198 (1992), review denied, 120 Wash. 2d 1029, 847 P.2d 481 (1993); Jarr v. Seeco Constr. Co., 35 Wash. App. 324, 666 P.2d 392 (1983); Swanson v. McKain, 59 Wash. App. 303, 796 P.2d 1291 (1990).
The trial court's instruction 20 erroneously stated a landowner never has a duty to warn an invitee about open and apparent dangers from a natural condition.
In limited circumstances, Restatement (Second) of Torts § 343A creates a
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