WPI 120.06 General Duty to Business or Public Invitee—Activities or Condition of Premises

Use WPI 120.05 (Business or Public Invitee—Definition), with this instruction. When the case involves the condition of the premises not created by the owner or occupier, use WPI 120.07 (Liability to Business or Public Invitee—Condition of Premises—Condition Not Caused by the Owner or Occupier) with this instruction.

For the usual commercial or business situation, WPI 120.06.01 (Duty of Business Proprietor to Customer—Activities or Condition of Premises) might be more appropriate than this instruction.

Use the bracketed phrases on business or public invitee as appropriate. Use the bracketed phrase “for the invitee's safety” if the case involves activities of the owner or occupier and not the condition of the premises. Use the last bracketed phrase if the case involves a condition of the premises and not activities of the owner or occupier. Use all of the last three bracketed phrases if the case involves both activities and condition of the premises. If the case involves property damage only and not personal injury, the bracketed phrase “for the invitee's safety” should be changed to read “to avoid damaging the invitee's property.”

General duty owed to invitees.This instruction sets forth the standard of care owed to a business or public invitee. Miniken v. Carr, 71 Wn.2d 325, 428 P.2d 716 (1967); DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 372 P.2d 193 (1962); Enersen v. Anderson, 55 Wn.2d 486, 348 P.2d 401 (1960).

When it is alleged that the plaintiff's injuries were caused by a condition of the premises that was not created by the current occupier, WPI 120.07 (Liability to Business or Public Invitee—Condition of Premises—Condition Not Caused by the Owner or Occupier) must also be given. Failure to give WPI 120.07 (Liability to Business or Public Invitee—Condition of Premises—Condition Not Caused by the Owner or Occupier) when warranted is reversible error. Huston v. First Church of God, 46Wn.App. 740, 732 P.2d 173 (1987); Pearce v. Motel 6, Inc., 28 Wn.App. 474, 624 P.2d 215 (1981). This issue is discussed in greater detail in the Comment to WPI 120.07 (Liability to Business or Public Invitee—Condition of Premises—Condition Not Caused by the Owner or Occupier).

Activities on the premises. Washington courts have not yet addressed the duty owed to an invitee by a premise owner or occupier with regard to activities on the land.If a case involves aninjury to an invitee caused by an activity of the owner or occupier, see the discussion in the Comment to WPI 120.03 (Duty to Licensee or Social Guest—Activities of Owner or Occupier), as well as comment a to Restatement (Second) of Torts § 341A.

Readily apparent dangers.If it is alleged that the danger should have been readily apparent to the plaintiff, an instruction based on Restatement (Second) of Torts § 343A should be given. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 875 P.2d 621 (1994) (natural out-cropping of rock); Suriano v. Sears, Roebuck & Co.,117 Wn.App. 819, 72 P.3d 1097 (2003) (large advertising stanchion in aisle of store).

Area of invitation.The duty to an invitee to maintain the premises in a reasonably safe condition extends only to the “area of invitation.” It is a question of fact whether an invitee exceeded the scope of the invitation or ventured beyond the area of invitation. See Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 141, 875 P.2d 621, 632 (1994) (emphasizing the importance of instructing the jury about the change in the landowner's duty that occurs when a plaintiff strays from the area of invitation); Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 750 P.2d 1257 (1988), clarified on denial of reconsideration 756 P.2d 142 (1988); Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 606 P.2d 1214 (1980); Codd v. Stevens Pass, Inc., 45 Wn.App. 393, 725 P.2d 1008 (1986); Mesa v. Spokane World Exposition, 18 Wn.App. 609, 570 P.2d 157 (1977) (disapproved of on other grounds in Egede-Nissen, supra).

For the liability of a landowner who has made the land available for recreational use free of charge, see the recreational land use statute, RCW 4.24.210, discussed in the Comment to WPI 120.07 (Liability to Business or Public Invitee—Condition of Premises—Condition Not Caused by the Owner or Occupier).