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WPI120.04Attractive Nuisance

Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 120.04 (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 120.04 Attractive Nuisance
[If you find that was a business invitee, you shall disregard this entire instruction. This instruction applies only if you do not find that was a business invitee.]
An [owner] [occupier] of land who creates a condition upon the premises that may reasonably be expected to attract young children and to constitute a danger to them, is under a duty to exercise ordinary care, that is, to take the precautions that a reasonably prudent person would take, under similar circumstances, to prevent injury to such children.
To find that the defendant had a duty to exercise ordinary care in connection with the condition of the premises each of the following propositions must be proved:
(1) That a condition or instrumentality existed that was dangerous in itself and likely to or probably would cause injury to those coming into contact with it;
(2) That it was attractive or enticing to young children;
(3) That was incapable, by reason of age, of comprehending the danger involved;
(4) That it was left unguarded and exposed at a place where young children were accustomed to resort, or could reasonably be expected to resort, for play or amusement or because of youthful curiosity; and
(5) That it was reasonably practicable and feasible either to prevent access by children or else to render it innocuous without obstructing any reasonable purpose or use for which it was intended.
If any of these propositions has not been proved [you should return a verdict for the defendant] [the duty owed to was a duty not to commit [willful or] wanton misconduct].
NOTE ON USE
Use this instruction if there is a condition upon the premises that may reasonably be expected to attract children and the plaintiff is a young child who is either a trespasser or a licensee.
If there is no claim that plaintiff was a business invitee, then omit the first bracketed paragraph. The first bracketed paragraph is to be used when there is a jury question whether or not the plaintiff was a business invitee.
The first bracketed phrase in the last paragraph is to be used if the evidence would not justify a finding of willful or wanton misconduct because then the plaintiff could not prevail. The second bracketed phrase in the last paragraph is to be used if the alternative issue of liability to a trespasser or licensee based on willful or wanton misconduct is also submitted to the jury. The issues and burden of proof instructions must be modified in a manner that is consistent.
COMMENT
This instruction is primarily derived from Schock v. Ringling Bros. and Barnum & Bailey Combined Shows, 5 Wn.2d 599, 105 P.2d 838 (1940), overruled on other grounds as noted in Laudermilk v. Carpenter, 78 Wn.2d 92, 457 P.2d 1004 (1969), and Holland v. Niemi, 55 Wn.2d 85, 345 P.2d 1106 (1959). The second paragraph is adapted from Schock v. Ringling Bros., 5 Wn.2d at 606.
Age of children. The doctrine of attractive nuisance applies only to young children of “tender years.” See Schock v. Ringling Bros., supra, and the cases cited therein. In Hanson v. Freigang, 55 Wn.2d 70, 345 P.2d 1109 (1959), the court held that a 15 year-old is not a child of tender years. The court defined a child of “tender years” as one who is incapable of deliberating and acting upon his or her own experience and judgment because of insufficient age, knowledge, experience, intelligence, judgment, and discretion.
Contributory or comparative negligence. In Schneider v. City of Seattle, 24 Wn.App. 251, 600 P.2d 666 (1979), the court held that contributory or comparative negligence is separate from the issue whether an attractive nuisance standard of negligence has been met and held that the former comparative negligence statute, RCW 4.22.010, has no effect on the doctrine of attractive nuisance. The court specifically held that incapacity of a child to comprehend the danger (the third element of this instruction) relates to the duty owed to the child by the defendant rather than the contributory negligence of the child.
Dangerous instrumentalities. A jury must determine whether the instrumentality was “dangerous in itself” when that issue is in dispute. Mathis v. Swanson, 68 Wn.2d 424, 413 P.2d 662 (1966).
Landowner's knowledge. An owner or occupier of land is liable under the doctrine of attractive nuisance for injuries caused by a dangerous condition created on the land by another only if the owner or occupier knows or should have known of that dangerous condition. Daggett v. Tiffany, 2 Wn.App. 309, 467 P.2d 629 (1970).
In Seattle First Nat. Bank v. State, 14 Wn.App. 166, 540 P.2d 443 (1975), the court held that the seller of land remains subject to liability for injuries caused by an attractive nuisance on the land when the nuisance is known or ought to be known to the seller but not to the buyer. This potential liability terminates only when the seller discloses the risk to the buyer or the buyer has had a reasonable opportunity to discover and remedy the risk. The court in Wilson v. Thermal Energy, Inc., 21 Wn.App. 153, 583 P.2d 679 (1978), reaffirmed that a sale of land does not necessarily give the former owner immunity from liability growing out of defects on the premises.
Bodies of water. If the child is an invitee on the premises, it is unnecessary to prove attractive nuisance in order to establish the land owner's duty to exercise ordinary care. The attractive nuisance doctrine does not apply to a natural body of water, at least for child trespassers, see Ochampaugh v. City of Seattle, 91 Wn.2d 514, 588 P.2d 1351 (1979), but a land owner may be liable for a breach of ordinary care in protecting child invitees from dangers presented by such waters, Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 914 P.2d 728 (1996) (declining to extend Ochampaugh to child invitees). These principles apply not only to natural bodies of waters, but also to artificial bodies of water having natural characteristics and no hidden dangers. Ochampaugh v. City of Seattle, 91 Wn.2d at 520–24; see Cultee v. City of Tacoma, 95 Wn.App. 505, 526–30, 977 P.2d 15 (1999) (concluding that tidal water flooding a road after a levee failure is not a natural body of water).
Activities conducted on the land. With regard to activities, as opposed to conditions created on the land, a possessor of land has a duty to exercise reasonable care to protect a very young child from injury, if the possessor is aware of the child's presence on the land. This duty applies regardless of the child's status on the land and even though no “attractive nuisance” is involved. See Ochampaugh v. City of Seattle, 91 Wn.2d at 527; Sherman v. City of Seattle, 57 Wn.2d 233, 356 P.2d 316 (1960); Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 130, 875 P.2d 621 (1994).
Effect of RCW 4.24.200 and .210—Recreational land use statute. RCW 4.24.210(4) provides that nothing in RCW 4.24.200 or 4.24.210 “limits or expands in any way the doctrine of attractive nuisance.”
[Current as of June 2009.]
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