Egede-Nissen v. Crystal Mountain, Inc.

• Citation: 21 Wn.App. 130,584 P.2d 432
• Decision Date: 16 August 1978
• Docket Number: EGEDE-NISSE,No. 2708-II,R,2708-II
• Parties: A. E.espondent, v. CRYSTAL MOUNTAIN, INC., a Washington Corporation, Appellant.
• Court: Washington Court of Appeals

Page 130

21 Wn.App. 130

584 P.2d 432

A. E. EGEDE-NISSEN, Respondent, v. CRYSTAL MOUNTAIN, INC., a Washington Corporation, Appellant.

No. 2708-II.

Court of Appeals of Washington, Division 2.

Aug. 16, 1978.

Robert J. Grenier, Seattle, for appellant.

Kirk R. Wines, Seattle, for respondent.

REED, Acting Chief Judge.

Crystal Mountain, Inc., defendant below, appeals from a judgment entered in favor of plaintiff Astrid Egede-Nissen. We find merit in some of the many assignments of error raised by Crystal Mountain and reverse.

Crystal Mountain owns and operates a ski resort on publicly owned land. The land itself is at all times open to the general public for skiing, hiking, and other recreational purposes; Crystal Mountain merely has been granted a permit to operate recreational ski facilities at the site. These facilities include a ski lodge, a large parking lot, and a number of chair lifts and rope tows, used to take skiers to various elevations on the mountain. ¹

On Wednesday, April 25, 1973, the lodge and lifts were not open for business; the only lift operating was the C-4 aerial tramway (the "Quicksilver Lift"), which was being run as an accommodation for the K-2 Corporation (K-2), a company that manufactures skis. Two professional skiers and an engineer from K-2 were apparently the only people using the facility. There were no lift operators or ticket sellers in the area. On that date plaintiff, a cabin attendant for Scandinavian Airlines System (SAS), and several members of her flight crew drove to the Crystal Mountain area for a picnic. The members of the group did not have ski equipment with them and they had no plans to ski. The group hiked up to the loading area of the C-4 and C-5 lifts in order to find a suitable place to eat. At this time they noticed that the C-4 lift was operating, and spied the K-2 skiers past the "quarterway" station on the mountain. Use of the lift was discussed by plaintiff's group and Captain Reidar Hartvedt decided to ride the lift and speak with the skiers about possible picnic sites. Hartvedt successfully boarded the moving chair; however, plaintiff, who suddenly decided to join the captain, slipped and somehow wound up with her feet dangling over the back of the chair. As the chair carried her up the mountain, Captain Hartvedt managed to place his legs under plaintiff's body to stabilize her. They planned to remain in this position until they reached the quarterway station on the mountain, at which point they believed plaintiff could be dropped gently onto the loading platform.

The major factual dispute in the case revolves around the extent of defendant's efforts to cordon off the loading area of the C-4 lift or warn away visitors. Plaintiff's witnesses, the other SAS crew members, testified that the loading area was not blocked and that there were no warning signs present. In fact, Tollef Bakke, the SAS copilot, testified that the only writing he noticed were two phrases written on a blackboard: "400 yards to go" and "You see what you get." Captain Hartvedt also stated that he read the phrase "You see what you get" on the blackboard. In contrast, defendant's witnesses, all employees of Crystal Mountain, stated that the area was surrounded by metal rope and fencing, and that a "Sorry Lift Closed" sign had been posted.

In any case, several of defendant's employees observed plaintiff hanging from the chair and became alarmed. Bill Steel, defendant's "mountain manager" and Paul Swanson, the lift supervisor, attempted to drive from the C-1 lift area where they had been working to the C-4 compound. Their truck became mired in the snow about halfway to their destination; they left the vehicle and Steel ran to the bottom of the lift where the controls were located, while Swanson headed toward Tower 3 of the C-4 lift. Upon reaching the controls, Steel immediately stopped the lift. The chair began to sway after the stop and plaintiff lost her previously firm grip on the seat. Captain Hartvedt grabbed plaintiff's wrists and at least temporarily was able to keep her from falling. Hartvedt and plaintiff both yelled for the men to restart the lift. Swanson, who was quite experienced in all phases of lift emergency procedures, was either not aware of plaintiff's plans concerning the quarterway station or was convinced that they were unrealistic. He determined that the safest course of action would be for him to climb Tower 3, scale the guide wire to the chair in which plaintiff and Hartvedt were riding and pull plaintiff into the chair. He signaled Steel to restart the lift; when he believed that the chair was close to Tower 3, Swanson, through arm motions, requested that Steel again stop the lift. After the second stop, the chair began to sway more violently. Hartvedt shouted that he was unable to keep his hold on the plaintiff. Plaintiff dropped 30 feet to the ground and sustained multiple fractures.

Plaintiff initiated this action for damages on June 7, 1973. At trial, she alleged that defendant was negligently in basically three aspects: (1) in failing to use reasonable care to exclude members of the public from the lift area; (2) in operating the lift without attendants; and (3) in failing to exercise reasonable care in rescuing plaintiff. After a heated trial, the jury returned special interrogatories finding that defendant was negligent, that plaintiff's damages were $150,000 and that plaintiff was 55 percent "contributorily negligent." Judgment was entered accordingly and defendant appeals.

The first cluster of issues to be discussed concerns the extent of the duty owed by Crystal Mountain to plaintiff. Defendant objects to the trial judge's use of a number of jury instructions regarding this issue; we are primarily concerned with instruction No. 20, which states:

If an owner or occupier of land which is open to the general public wishes to exclude the general public from any particular portion of such land, or from any instrumentality maintained on such land, he must use reasonable care to do so. The failure to use reasonable care is negligence. Such negligence has the same effect as any other act of negligence. Therefore, it will not render a defendant liable for damages unless you further find that it was a proximate cause of the claimed injury or damage.

(Emphasis added.)

This instruction correctly assumes that plaintiff's status upon arriving at Crystal Mountain was that of a public invitee, and that Crystal Mountain therefore owed her a duty of reasonable care, see Restatement (Second) of Torts § 332(2) (1965); McKinnon v. Washington Fed. Sav & Loan Ass'n, 68 Wash.2d 644, 414 P.2d 773 (1966); 62 Am.Jur.2d Premises Liability § 116 (1972). The instruction, however, confuses the questions of the scope of the invitation and the existence of a breach of the applicable duty. An owner or occupier of land has the duty to maintain the premises in a reasonably safe condition for the protection of an invitee; he must further make any limitation on the scope of the invitation apparent to a reasonable invitee. Mesa v. Spokane World Exposition, 18 Wash.App. 609, 570 P.2d 157 (1977); W. Prosser, Law of Torts § 61 (4th ed. 1971); Cf. Miniken v. Carr,71 Wash.2d 325, 428 P.2d 716 (1967). As stated in W. Prosser, Supra at 391-92:

The special obligation toward invitees exists only while the visitor is upon the part of the premises which the occupier has thrown open to him for the purpose which makes him an invitee. This "area of invitation" will of course vary with the circumstances of the case. . . . it extends to all parts of the premises to which the purpose may reasonably be expected to take him, and to those which are so arranged as to lead him reasonably to think that they are open to him.

(Footnotes omitted.) We note that instructions No. 17 and 31, excepted to by Crystal Mountain, correctly state this concept. ²

An occupier is not an insurer of the safety of his invitees. Failure to make a reasonable effort to exclude an invitee from an area intended to be private is not negligence; it merely expands the "area of invitation" to include those parts of the premises which the invitee reasonably believes are open for his use. W. Prosser, Supra; cf. Engdal v. Owl Drug Co., 183 Wash. 100, 48 P.2d 232 (1935); Restatement (Second) of Torts § 332, comment L (1965). To rephrase, an owner or occupier is generally responsible for maintaining his land in a reasonably safe condition for the benefit of his invitees; this duty extends only to those parts of the property which are in the scope of the invitation. Christensen v. Weyerhaeuser Timber Co., 16 Wash.2d 424, 133 P.2d 797 (1943). Visitors who roam into the clearly "private" areas of the premises become either trespassers or licensees and the owner or occupier need merely refrain from engaging in willful or wanton misconduct. ³ Miniken v. Carr, supra, (includes duty to warn licensee of dangers known to owner or occupier of land but concealed from visitor); Winter v. Mackner, 68 Wash.2d 943, 416 P.2d 453 (1966); Evans v. Miller, 8 Wash.App. 364, 507 P.2d 887 (1973). On the other hand, an owner or occupier of land who fails to make a reasonable effort to apprise an invitee of the limits of the invitation becomes responsible for maintaining all the "apparently public" sections of the premises in a nonnegligent manner. Only if that duty is breached, is the owner or occupier negligent and liable for the damages flowing from his actions. ⁴

As instruction No. 20 permitted the jury to find Crystal Mountain guilty of negligence simply for failing to make a reasonable effort to exclude the public from the lift area, it was improper. We cannot find that use of the instruction was harmless, and therefore, must reverse and grant a new trial. Although our holding on the use of instruction No. 20 makes it unnecessary for us to consider the remainder of Crystal Mountain's assignments of error, we will address the major issues in...