WPI120.02.01Duty to Licensee or Social Guest—Condition of Premises
6 WAPRAC WPI 120.02.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 120.02.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Part X. Owners and Occupiers of Land
Chapter 120. Trespasser—Licensee—Social Guest—Invitee
WPI 120.02.01 Duty to Licensee or Social Guest—Condition of Premises
An [owner] [occupier] of premises owes to a [licensee] [social guest] a duty of ordinary care in connection with dangerous conditions of the premises of which the [owner] [occupier] has knowledge or should have knowledge and of which the [licensee] [social guest] cannot be expected to have knowledge. This duty includes a duty to warn the [licensee] [social guest] of such dangerous conditions.
NOTE ON USE
Use bracketed material as applicable. Use either WPI 120.08 (Licensee—Definition) or WPI 120.08.01 (Social Guest—Definition), as applicable, with this instruction.
The only common law duty an owner or occupier of land owed to a licensee was to refrain from committing willful or wanton misconduct. See Prosser and Keeton on Torts § 60 (1985). In Memel v. Reimer, 85 Wn.2d 685, 538 P.2d 517 (1975), the court replaced this standard of care with a duty to exercise reasonable care toward licensees when there is a known dangerous condition on the property that the possessor can reasonably anticipate the licensee will not discover or realize the risks involved. Memel specifically adopts the duty of care set forth in Restatement (Second) of Torts § 342 (1965). That section states:
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
- (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
- (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
- (c) the licensees do not know or have reason to know of the condition and risk involved.
Restatement (Second) of Torts § 342 (1965).
The duty of care owed to licensees and social guests is discussed in both Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 606 P.2d 1214 (1980), and Younce v. Ferguson, 106 Wn.2d 658, 724 P.2d 991 (1986).
In Youngblood v. Schireman, 53 Wn.App. 95, 765 P.2d 1312 (1988), the court discussed the duty of a landowner to warn or protect a licensee against harm by a third person.
The court in Hutchins v. 1001 Fourth Ave. Associates, 116 Wn.2d 217, 802 P.2d 1360 (1991), held that a possessor of land has no generalized duty to provide security measures on the premises so as to protect those off the premises, including passersby, from third-party criminal activity on the premises. In McKown v. Simon Property Group, Inc., 182 Wn.2d 752, 344 P.3d 661 (2015), the Supreme Court stated, “we have also continued to recognize that the limited duty of landowners to protect invitees from third parties is an exception to the general rule that there is no duty to protect others from the criminal acts of third parties.” (Citations omitted) McKown v. Simon Property Group, Inc., 182 Wn.2d at 766.
For a discussion of the duty to protect a business invitee from criminal activity, see WPI 120.06.03 (Duty to Business Invitee—Protection from Criminal Acts).
The duty owed to licensees or social guests does not include the duty to warn of natural conditions associated with bodies of water nor the duty to warn of floating debris naturally occurring in bodies of water. Swanson v. McKain, 59 Wn.App. 303, 796 P.2d 1291 (1990), overruled on other grounds in Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 875 P.2d 621 (1994).
“[A] landowner has no duty to warn licensees about open and apparent dangers from a natural condition.” Whether a natural condition is open and apparent is a question of fact. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 135, 875 P.2d 621 (1994). In Thompson v. Katzer, 86 Wn.App. 280, 936 P.2d 421 (1997) the appellate court affirmed summary judgment for the defense because the plaintiff-licensee clearly saw and perceived the risk of the snow upon which he slipped.
In Anderson v. Weslo, Inc., 79 Wn.App. 829, 906 P.2d 336 (1995), the court affirmed the summary dismissal of the claim of a 16-year-old injured on a neighbor's trampoline because the owners of the trampoline had posted safety rules and required parental permission.
[Current as of September 2018.]
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