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WPI120.07Liability to Business or Public Invitee—Condition of Premises—Condition Not Created by...

6 WAPRAC WPI 120.07Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 120.07 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Washington State Supreme Court Committee on Jury Instructions
Part X. Owners and Occupiers of Land
Chapter 120. Trespasser—Licensee—Social Guest—Invitee
WPI 120.07 Liability to Business or Public Invitee—Condition of Premises—Condition Not Created by the Owner or Occupier
An [owner of premises] [occupier of premises] [ operator] is liable for any [physical] injuries to its [business invitees] [public invitees] [customers] caused by a condition on the premises if the [owner] [occupier] [ operator]:
(a) knows of the condition or fails to exercise ordinary care to discover the condition, and should realize that it involves an unreasonable risk of harm to such [business invitees] [public invitees] [customers];
(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 ordinary care to protect them against the danger; and
(d) the dangerous condition is within those portions of the premises that the invitee is expressly or impliedly invited to use or might reasonably be expected to use.
NOTE ON USE
When the injury to plaintiff is the result of a condition on the premises not created by the owner or occupier of the land use this instruction with either WPI 120.06 (General Duty to Business or Public Invitee—Activities or Conditions of Premises) or WPI 120.06.01 (Duty of Business Proprietor to Customer—Activities or Condition of Premises).
Use bracketed material as applicable. If WPI 120.06 ((General Duty to Business or Public Invitee—Activities or Conditions of Premises) is given, choose from the terms “owner,” “occupier,” “business invitees,” and “public invitees,” as applicable. If WPI 120.06.01 (Duty of Business Proprietor to Customer—Activities or Condition of Premises) is given, use the bracketed phrases “operator” and “customers.”
COMMENT
This instruction has been revised for this edition.
Background. This instruction is adapted from Restatement (Second) of Torts § 343 “Dangerous Conditions Known to or Discoverable by Possessor,” (1965), which Washington courts have cited for the duties owners or occupiers of land owed to invitees. See, e.g., Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 875 P.2d 621 (1994); Ford v. Red Lion Inns, 67 Wn.App. 766, 840 P.2d 198 (1992). Landowners owe to invitees a duty of reasonable care requiring them to inspect for dangerous conditions and to make such repair, safeguards, or warnings as may be reasonably necessary for the protection of invitees under the circumstances. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d at 139. This duty of reasonable care includes an “affirmative duty to discover dangerous conditions.” Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 132, 606 P.2d 1214 (1980) (citing Restatement (Second) of Torts § 343, comment b); Jarr v. Seeco Const. Co., 35 Wn.App. 324, 326, 666 P.2d 392 (1983).
With regard to conditions on the land, the courts in both Huston v. First Church of God, 46 Wn.App. 740, 732 P.2d 173 (1987), and Pearce v. Motel 6, Inc., 28 Wn.App. 474, 624 P.2d 215 (1981), held that the failure to give a proposed instruction worded similarly to this instruction was error. The giving of an instruction patterned after WPI 120.06.01 (Duty of Business Proprietor to Customer—Activities or Condition of Premises), was not sufficient, as it did not apprise the jury that, before liability could attach, the owner or occupier must have known, or should have known, of the dangerous condition and must have had no reason to believe that invitees would discover the condition or realize the danger. Huston v. First Church of God, 46 Wn.App. at 742–45; Pearce v. Motel 6, Inc., 28 Wn.App.at 479.
Applicability of instruction. This instruction should be given in cases involving injury to an invitee resulting from a condition on the premises not created or conducted by the owner or occupier of the land. This instruction should generally not be given when an unsafe condition is created by the active negligence of the possessor of land, because in that circumstance there is no requirement that the possessor have actual or constructive notice of the condition, so long as the danger is reasonably foreseeable. Trueax v. Ernst Home Center, 70 Wn.App. 381, 853 P.2d 491 (1993), reversed on other grounds at 124 Wn.2d 334, 878 P.2d 1208 (1994).
In some cases, it may be appropriate to use this instruction when the owner or occupier created the condition, particularly when the condition is alleged to be obvious and apparent so that an instruction based on section 343A of Restatement (Second) of Torts (1965) is also given. See Suriano v. Sears, Roebuck & Co., 117 Wn.App. 819, 72 P.3d 1097 (2003). An alternative is to instruct the jury in accordance with the Restatement (Second) of Torts § 341A, which is quite similar to section 343A. Section 341A provides:
A possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or will fail to protect themselves against it.
“[Physical] injury.” Although section 343 of the Restatement (Second) of Torts (1965)uses the term “physical harm,” the instruction is written in terms of “[physical] injury.” The WPI Committee believes that jurors will more easily understand the word “injury” rather than “harm.” Additionally, the word “physical” has been bracketed. It is unclear whether the “physical” limitation from the Restatement would be applied in our state so as to prohibit recovery for emotional injuries. Washington's case law has not directly considered this issue. The premises liability opinions in this state contain only indirect indications as to the resolution of this issue and these indications have been inconsistent. Compare Tincani v. Inland Empire Zoological Soc., 124 Wn.2d at 138 (quoting section 343, including the phrase “physical harm”), with Mucsi v. Graoch Associates Ltd. Partnership No. 12, 144 Wn.2d 847, 31 P.3d 684 (2001) (describing section 343 as allowing recovery for “harm”).
In contexts other than premises liability, Washington's case law has held that emotional injuries are generally recoverable, even in the absence of physical injury. See, e.g., Hunsley v. Giard, 87 Wn.2d 424, 553 P.2d 1096 (1976); Whaley v. State, Dept. of Social and Health Services, 90 Wn.App. 658, 956 P.2d 1100 (1998); and Brower v. Ackerley, 88 Wn.App. 87, 943 P.2d 1141 (1997). The issue of recovering emotional injuries under section 343 affects not only WPI 120.07 but also the drafting of the damages elements under WPI Chapter 30.
Invitees and “known or obvious dangers.” In addition to section 343 of the Restatement (Second) of Torts (1965), section 343A (“Known or Obvious Dangers”) further defines the liability of an owner or occupier of land to invitees for known or obvious dangers. See Tincani v. Inland Empire Zoological Soc.,124 Wn.2d 121, 875 P.2d 621 (1994); Maynard v. Sisters of Providence, 72 Wn.App. 878, 866 P.2d 1272 (1994); Ford v. Red Lion Inns, 67 Wn.App. 766, 840 P.2d 198 (1992); Jarr v. Seeco Const. Co., 35 Wn.App. 324, 666 P.2d 392 (1983). Section 343A provides:
  • (1) A possessor of land is not liable to his 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.
  • (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.
In cases involving invitees and known or obvious dangers, the jury should be instructed in accordance with both sections 343 and 343A of the Restatement (Second) of Torts (1965). See Tincani v. Inland Empire Zoological Soc., 124 Wn.2d at 139. Significantly, in Suriano v. Sears, Roebuck & Co., 117 Wn.App. 819, 72 P.3d 1097 (2003), the court held that section 343A of the Restatement applies when a plaintiff was injured by tripping over a large advertising stanchion that had been placed in the aisle of the store. The trial court had declined to give WPI 120.07—presumably because the condition alleged to be dangerous had been created by the possessor of the property. The appellate court concluded it would have been better practice to give an instruction based on section 343A, along with WPI 120.07 (based on section 343), but did not find the failure to instruct on both sections reversible error. Suriano v. Sears, Roebuck & Co., 117 Wn.App. at 827–28.
Conditions created by third-parties. In Oliver v. Cook, 194 Wn.App 532, 377 P.3d 265 (2016), the landowner had an informal business relationship with Cook, a person operating an auto repair shop on his land. The landowner was arguably aware that Cook owned a dangerous dog, who bit the landowner's invitee. Material issues of fact thus precluded granting an order of summary judgment in favor of the landowner, as the landowner owed a duty to his invitees, even though the danger was not created by the landlord.
Snow and ice cases. Sections 343 and 343A of the Restatement (Second) of Torts (1965) also reflect the appropriate standards for determining landowner liability to invitees for dangers created by accumulations of ice and snow. Iwai v. State, 129 Wn.2d 84, 915 P.2d 1089 (1996). The Iwai court held that Washington does not follow the natural accumulation rule (Massachusetts rule) that landowners have no duty to protect invitees from snow and ice conditions. The standards imposed by section 343 and 343A “do not distinguish between artificial and natural conditions-the duty to protect invitees from harm is the same in both situations.” Iwai v. State, 129 Wn.2d at 95. See also Mucsi v. Graoch Associates Ltd. Partnership No. 12,144 Wn.2d 847, 31 P.3d 684 (2001).
For other cases involving ice and snow, see Thompson v. Katzer, 86 Wn.App. 280, 936 P.2d 421 (1997); Leonard v. Pay'n Save Drug Stores, Inc., 75 Wn.App. 445, 880 P.2d 61 (1994); Maynard v. Sisters of Providence, 72 Wn.App. 878, 866 P.2d 1272 (1994); and Ford v. Red Lion Inns, 67 Wn.App. 766, 840 P.2d 198 (1992).
A landlord, however, does have a duty to maintain common areas free of snow and ice. This is subject to the defense of assumption of the risk, for obvious accumulations even when occurring in a common area. Hvolboll v. Wolff Co., 187 Wn.App. 37, 347 P.3d 476 (2015).
Recreational land use statute. RCW 4.24.210-the Recreational Land Use Statute-provides immunity for landowners for injuries occurring on land that “(1) was open to members of the public (2) for recreational purposes and [that] (3) no fee of any kind was charged.” Cregan v. Fourth Memorial Church, 175 Wn.2d 279, 284, 285 P.3d 860 (2012). The statute provides that such a landowner is not liable for unintentional injuries except when they result from conditions that are known, dangerous, artificial, and latent.The terms “dangerous, artificial and latent” modify the word “condition” and do not modify each other. Jewels v. City of Bellingham, 183 Wn.2d 388, 390, 353 P.3d 2014 (2015) (unpainted concrete berm not a latent condition as it could be seen by bicyclist without the need to manipulate or uncover the surrounding area).
Other cases discussing the applicability of RCW 4.24.210 or discussing what constitutes a known, dangerous, artificial, and latent condition under that statute, include Van Dinter v. City of Kennewick, 121 Wn.2d 38, 846 P.2d 522 (1993); Davis v. State, 144 Wn.2d 612, 30 P.3d 460 (2001); Cultee v. City of Tacoma, 95 Wn.App. 505, 977 P.2d 15 (1999); and Ravenscroft v. Washington Water Power Co., 136 Wn.2d 911, 969 P.2d 75 (1998).
In determining whether the statute applies, the proper focus is on the landowner's purpose in allowing others to use the property rather than on the plaintiff's purpose in using the property. Home v. North Kitsap School Dist., 92 Wn.App. 709, 965 P.2d 1112 (1998). In Camicia v. Howard S. Wright, 179 Wn.2d 684, 317 P.3d 987 (2014), the Supreme Court declined to extend the reach of RCW 4.24.210 to land that is open to the public for a purpose other than recreation. Thus material issues of fact prevented summary judgment on the question of whether a bike lane connected with I-90 was maintained for a recreational or transportation purpose.
RCW 4.24.210(4) specifically provides that the recreational land use statute does not protect a landowner from liability for maintaining an attractive nuisance.
The applicability of RCW 4.24.210 is an affirmative defense and the burden of proving the applicability of the statute is on the landowner. Camicia v. Howard S. Wright Const. Co., 179 Wn.2d 684, 693, 317 P. 3d 987 (2014). Thus, under many fact patterns, WPI 21.05 (Burden of Proof—Affirmative Defense Other than Contributory Negligence/Assumption of the Risk) willbe needed.
[Current as of September 2018.]
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