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WPI 120.00 Introduction

6 WAPRAC WPI 120.00Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 120.00 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part X. Owners and Occupiers of Land

Chapter 120. Trespasser—Licensee—Social Guest—Invitee

WPI 120.00 Introduction

Background.The pattern instructions in this chapter are used for premises liability cases. The instructions cover the common law rules defining the liability of owners and occupiers of land for injuries that occur on land they own or occupy. These instructions, which are based on Restatement (Second) of Torts §§ 342 to 343A (1965), as adopted by Washington courts, define the status of the injured entrant—trespasser, licensee, social guest, or invitee—and define the duty of care owed based on the entrant's status.

Status determines the duty of care. Some jurisdictions have eliminated the common law distinctions based on the status of the entrant. This view is reflected in Restatement (Third) of Torts § 51 (2012), which abandons the distinction between the duties owed to a licensee and an invitee. However Washington courts have repeatedly declined to eliminate the common law distinctions. Younce v. Ferguson, 106 Wn.2d 658, 724 P.2d 991 (1986). Accord, McKown v. Simon Property Group, Inc., 182 Wn.2d 752, 344 P.3d 661 (2015).

It remains the law in Washington that the scope of the duty of care owed by owner or occupier to an entrant on the land is still based on the status of the entrant as trespasser, licensee or invitee. Ford v. Red Lion Inns, 67 Wn.App. 766, 769, 840 P.2d 198 (1992). Whether Washington courts will continue to maintain the distinctions outlined in Restatement (Second) of Torts §§ 342 to 343A (1965) in light of the approach now taken in Restatement (Third) of Torts, is a subject beyond the work of the WPI Committee. The instructions in this chapter are written based on the assumption that the distinction between licensees and invitees will remain.

Distinctions between the duties owed to licensees versus invitees. When crafting jury instructions in premise liability cases, it is important to determine the entrant's status. Unless there is no dispute as to the underlying facts, the entrant's status presents a question of fact to be decided by the jury. Beebe v. Moses, 113 Wn.App. 464, 467, 54 P.3d 188 (2002) (question of whether a person injured leaving a “Tupperware party” was a social guest and hence a licensee or a business invitee to be decided by jury). See also Egede-Nissen v. Crystal Mountain, 93 Wn.2d 127, 606 P.2d 1214 (1980) (proposed jury instruction improperly assumed status of plaintiff was that of a trespasser and was properly rejected, as there were issues of fact as to her status).

The distinction between duties owed to licensees versus invitees as to conditions of the land is subtle. The court in Jarr v. Seeco Const. Co., 35 Wn.App. 324, 666 P.2d 392 (1983), relying on provisions of the Restatement of Torts (Second), stated:

“As stated in § 342, the possessor owes to a licensee only the duty to exercise reasonable care to disclose to him dangerous conditions which areknown to the possessor, and are likely not to be discovered by the licensee. To the invitee the possessor owes not only this duty, but also the additional duty to exercise reasonable affirmative care to see that the premises are safe for the reception of the visitor, or at least to ascertain the condition of the land, and to give such warning that the visitor may decide intelligently whether or not to accept the invitation, or may protect himself against the danger if he does accept it.
As stated in § 342, the possessor is under no duty to protect the licensee against dangers of which the licensee knows or has reason to know. On the other hand, as stated in § 343A, there are some situations in which there is a duty to protect an invitee against even known dangers, where the possessor should anticipate harm to the invitee notwithstanding such knowledge.”

Jarr v. Seeco Const. Co., 35 Wn.App. 324, 327, 666 P.2d 392 (1983), quoting Restatement (Second) of Torts § 343, cmt.b (1965).

For a useful discussion of Washington law in this regard, see DeWolf and Allen, 16A Washington Practice, Tort Law and Practice, §§ 18.1, et seq. (4th ed.).

Miscellaneous considerations.Historically, the instructions in this chapter have been phrased in terms of “owners or occupiers” of land. These terms (“[owner] [occupier]”) are bracketed to indicate that jury instructions should not use both terms if only one applies to a particular case. Alternatively, practitioners may wish to use the word “possessor”; this term is used by the Restatement (Second) of Torts and in some Washington cases. See, e.g., Musci v. Grach Assoc., 144 Wn.2d 847, 31 P.3d 684 (2001) (uses both the terms “possessor” and “landowner”).

In Pruitt v. Savage, 128 Wn.App. 327, 330, 115 P.3d 1000 (2005), the court concluded that the owner of a single family home who has rented out the entire property to a tenant, is not a possessor of land for purposes of Restatement (Second) of Torts § 343 (1965). The court, therefore, affirmed the trial court's order granting directed verdict in favor of the property owner when a neighbor child was injured on the property.

[Current as ofSeptember 2018.]

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