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WPI120.02Duty to Trespasser

Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 120.02 (6th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
December 2017 Update
Washington State Supreme Court Committee on Jury Instructions
Part X. Owners and Occupiers of Land
Chapter 120. Trespasser—Licensee—Social Guest—Invitee
WPI 120.02 Duty to Trespasser
An [owner] [occupier] of premises owes to a trespasser a duty not to commit [willful or] wanton misconduct.
NOTE ON USE
Use bracketed material as applicable. Use WPI 120.01, Trespasser—Definition, and WPI 14.01, Willful Misconduct and Wanton Misconduct—Defined, with this instruction.
Do not use this instruction for a child under the age of six years, because the duty to such a child is a duty of reasonable care. See the Comment.
COMMENT
Pursuant to the common law, an owner or occupier of land owes no duty to a trespasser except to refrain from willfully or wantonly injuring the trespasser. Zuniga v. Pay Less Drug Stores, N.W., 82 Wn.App. 12, 917 P.2d 584 (1996); Johnson v. Schafer, 110 Wn.2d 546, 756 P.2d 134 (1988); Ochampaugh v. City of Seattle, 91 Wn.2d 514, 588 P.2d 1351 (1979); Winter v. Mackner, 68 Wn.2d 943, 945, 416 P.2d 453, 454 (1966). However, the courts have carved out several exceptions to this general rule. In Laudermilk v. Carpenter, 78 Wn.2d 92, 457 P.2d 1004 (1969), the court held that the duty owed to small children by an owner or occupier of land is a duty of reasonable care, even though the child may technically be a trespasser. The court in Rogers v. Bray, 16 Wn.App. 494, 557 P.2d 28 (1976), held that the duty of care owed a trespasser is elevated to “reasonable care” when the trespasser is negligently led into believing that a private road is a public road.
The Court of Appeals declined to adopt the “constant trespasser” doctrine found in Restatement (Second) of Torts § 334 (1965), which mandates a duty of reasonable care to trespassers when the owner or occupier of land knows or should have known that trespassers constantly intrude upon their land. Sikking v. National R.R. Passenger Corp., 52 Wn.App 246, 758 P.2d 1003 (1988).
[Current as of June 2009.]
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