Egede-Nissen v. Crystal Mountain, Inc.
| Decision Date | 14 February 1980 |
| Docket Number | No. 45812,P,EGEDE-NISSE,45812 |
| Citation | 93 Wn.2d 127,606 P.2d 1214 |
| Court | Washington Supreme Court |
| Parties | A. E.etitioner, v. CRYSTAL MOUNTAIN, INC., a Washington Corporation, Respondent. |
Benson, Chadwick, Stege & Wines, Kirk R. Wines, Spokane, for petitioner.
Burgeson & Grenier, Robert J. Grenier, Seattle, for respondent.
Daniel F. Sullivan, Dean Bender, Ronald Bland, Donovan Flora, Seattle, amicus curiae.
This is an action for personal injuries sustained by petitioner A. E. Egede-Nissen, a Norwegian national, when she fell from a chairlift at Crystal Mountain ski area. A Pierce County Superior Court jury found Crystal Mountain, Inc., negligent, assessed total damages of $150,000, and found Egede-Nissen "contributorially negligent" to the extent of 55 percent. Crystal Mountain appealed and the Court of Appeals, Division Two, reversed and remanded for a new trial. Egede-Nissen v. Crystal Mountain, Inc., 21 Wash.App. 130, 584 P.2d 432 (1978). We agree with the Court of Appeals, although we base our conclusion on somewhat different grounds.
The facts are set forth in considerable detail in the opinion of the Court of Appeals. Crystal Mountain, Inc., operates recreational ski facilities on public-owned land open to the public for recreational purposes. April 25, 1973, plaintiff Egede-Nissen, a stewardess, and several members of her Scandinavian Airlines System (SAS) flight crew traveled to Crystal Mountain to picnic and sightsee. The ski lodge and chairlifts were not open for business, although the C-4 chairlift was running as an accommodation for three employees of a ski manufacturing company. No lift attendants were present.
From the loading area of the C-4 lift, the SAS group noted two or three skiers on the slopes above. Captain Hartvedt decided to ride the lift up to the skiers and look for and inquire about a picnic site. He boarded a moving chair and Egede-Nissen impulsively decided to accompany him. In her haste to board, she slipped and landed in a precarious position facing and grasping the chair with her lower torso and legs dangling below. Captain Hartvedt, occupying the same chair, attempted to stabilize her without himself falling from the chair.
Crystal Mountain employees working in the C-1 lift area had observed the foregoing situation develop and two of them immediately hastened to the C-4 lift, intending to assist Egede-Nissen. In the course of their efforts, one of the employees stopped the lift, restarted it and then stopped it a second time. The chairs on the lift swayed markedly at each stop. Following the second stop, Egede-Nissen's hold on the chair became insecure and she fell 30 feet to the ground, sustaining injuries.
Petitioner commenced this negligence action against Crystal Mountain in Pierce County Superior Court in June 1973. The case was not tried until November 1976, at which time it was vigorously, often heatedly, contested. A verdict was returned in favor of the plaintiff in the amount of $67,500.
A major legal question at trial was Egede-Nissen's status (invitee, licensee or trespasser) aboard the chairlift. Her status depended upon a factual determination whether Crystal Mountain had given adequate notice, by signs or barricades, that the C-4 lift was not in public operation. On that issue, the evidence was sharply in conflict.
The trial court gave several instructions addressing the status of Egede-Nissen aboard the chairlift, to which Crystal Mountain objected. Instructions on this issue proposed by Crystal Mountain were refused by the court. In addition to objecting to instructions given and refused and certain evidentiary rulings, Crystal Mountain charged misconduct on the part of the trial judge.
On review, the Court of Appeals declared the trial court's instruction No. 20 to be erroneous. Instruction No. 18 was also declared to be defective. The court then selected from among Crystal Mountain's numerous assignments of error and addressed "major issues in order to avoid possible error at the new trial." Egede-Nissen at 137, 584 P.2d at 438. The Court of Appeals did not address the allegation of trial court misconduct.
We granted Egede-Nissen's petition for discretionary review to consider, Inter alia, whether we should abandon the traditional common-law categories of entrants upon land and adopt a unified standard of reasonable care under the circumstances. 1
Petitioner Egede-Nissen and amicus curiae urge this court to discard the categorical approach to landowner liability. Although we have questioned the common-law classification scheme in the past, 2 we are not ready at this time to totally abandon the traditional categories and adopt a unified standard. In the trial court, petitioner's proposed instructions did not incorporate the rule of "reasonable care under all circumstances" for which she contends on appeal. 3 Abandonment of the common-law classification system was not urged in the course of the trial. See Memel v. Reimer, 85 Wash.2d 685, 687, 538 P.2d 517 (1975). Petitioner's proffered instructions were couched in terms of determining whether she was a business invitee or a trespasser.
Further, this court in the past has looked to the Restatement (Second) of Torts (1965) for guidance in reviewing problems of landowner liability. See, e. g., Memel v. Reimer, supra (); McKinnon v. Washington Fed. Sav. & Loan Ass'n, 68 Wash.2d 644, 414 P.2d 773 (1966) (). See also Miniken v. Carr, 71 Wash.2d 325, 328-29, 428 P.2d 716 (1967) (); Potts v. Amis, 62 Wash.2d 777, 784, 384 P.2d 825 (1963) (reliance on section 341). The Restatement continues to distinguish between invitees and licensees. See sections 332, 342. In addition to the duty owed to licensees, landowners owe invitees an affirmative duty to discover dangerous conditions. See section 343, comment B. Under the circumstances of this case, we decline to depart from our adherence to the current common-law scheme.
As noted above, a major legal issue at trial was petitioner's status aboard the chairlift, which in turn determined the corresponding duty of care owed by Crystal Mountain. There is no serious dispute that under McKinnon, Egede-Nissen's status upon Entering the Crystal Mountain area was that of a public invitee. See section 332. Accordingly, as to her, Crystal Mountain's duty was to maintain its premises in a reasonably safe condition. This duty, however, extends only to the "area of invitation" that portion of the premises arranged so as to lead an invitee to reasonably believe it is open to her. Section 332, comment L.
Petitioner's status aboard the chairlift turned on the resolution of a factual dispute whether Crystal Mountain had given adequate notice that the C-4 lift was closed to the public. Initially, Egede-Nissen's status was that of a public invitee, which status she would retain until adequately warned of limits to the area of her invitation. Miniken v. Carr, supra; Mesa v. Spokane World Exposition, 18 Wash.App. 609, 570 P.2d 157 (1977). If, however, petitioner unreasonably strayed beyond the area of invitation, her status would change from that of invitee to a licensee or trespasser, with a corresponding change in the duty owed to her by Crystal Mountain. 4
The trial court gave a number of instructions addressing the standard of care owed petitioner, to which Crystal Mountain objected. The exceptions presented to the court were rambling and imprecise. While it is rather clear that Crystal Mountain desired to classify petitioner as a licensee or a trespasser, at no point, however, in its exceptions or proposed instructions did Crystal Mountain advise the trial court precisely and correctly how that alternative should be presented to the jury under the circumstances of this case.
The Court of Appeals held the trial court erred in giving instruction No. 20, 5 because it "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." Egede-Nissen, 21 Wash.App. at 136-37, 584 P.2d at 437. We agree. Further, we agree with the court's analysis of instruction No. 20, though we see no disharmony between its analysis and Mesa v. Spokane World Exposition, supra. 6 We do not agree, however, that the exception to the instruction taken by Crystal Mountain was sufficient to advise the trial court of the defects discussed by the Court of Appeals.
Flawed instructions to which inadequate exceptions are taken will not be considered on appeal and, thus, cannot be the basis upon which to grant a new trial. Bitzan v. Parisi, 88 Wash.2d 116, 125, 558 P.2d 775 (1977). We recently stated in Estate of Ryder v. Kelly-Springfield Tire Co., 91 Wash.2d 111, 114, 587 P.2d 160, 162 (1978):
The cognizance we take on appeal of alleged erroneous instruction in the trial court depends upon the action appellant took in that court. The trial court must have been sufficiently apprised of any alleged error to have been afforded an opportunity to correct the matter if that was necessary. CR 51(f). In Nelson v. Mueller, 85 Wash.2d 234, 238, 533 P.2d 383, 386 (1975), we quoted from Roumel v. Fude, 62 Wash.2d 397 (399-400), 383 P.2d 283 (1963), as follows:
Our rules require that exceptions to instructions shall specify the paragraphs or particular parts of the charge excepted to and shall be sufficiently specific to apprise the trial judge of the Points of law or question of fact in dispute. The purpose is To enable the trial court to correct any mistakes in the instructions in time to prevent the unnecessary expense of a second trial.
Crystal Mountain did not take exceptions to instruction No. 20 on the ground that it "confuses the questions of the scope of the invitation and the existence of a breach of the applicable duty." Egede-Nissen v. Crystal Mountain,...
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