Memel v. Reimer, 43317

CourtUnited States State Supreme Court of Washington
Citation85 Wn.2d 685,538 P.2d 517
Docket NumberNo. 43317,43317
PartiesVerna MEMEL, Appellant, v. Robert REIMER and Helen Reimer, husband and wife, Respondents.
Decision Date31 July 1975

Ivy, Elofson, Vincent, Hurst & Crossland, David K. Crossland, Yakima, for appellant.

Gavin, Robinson, Kendrick, Redman & Mays, Homer A. Crollard, Yakima, for respondents.

HUNTER, Associate Justice.

On March 13, 1972, the plaintiff (appellant), Verna Memel, a 71-year-old woman, visited the home of the defendants (respondents), Robert and Helen Reimer, to attend a meeting of a local flower guild. Upon entering the house, the plaintiff went to the kitchen and spoke briefly with Mrs. Reimer, who instructed the plaintiff to put her coat in the bedroom. The plaintiff noticed a door next to the kitchenette which was unlatched, and she presumed it led to the bedroom. Upon opening the door, she immediately realized that this was not a hallway. Due to the lack of light and the presence of several coats hanging on the wall, the plaintiff incorrectly concluded that this was a kitchen closet, while, in fact, it was a stairway leading down to the basement. There was an open hook on the far right-hand side, for which she reached without entering in order to hang her coat. When the coat began to slip off the hook, the plaintiff grabbed for it, causing her to slip off the stairwell threshold located at the door jam, and thereupon fall down the entire flight of stairs. This fall resulted in serious personal injuries to the plaintiff.

At the trial the court rejected the plaintiff's theory that the proper duty owed by a landowner to a licensee was one of reasonable care under the circumstances, and instructed the jury that the plaintiff had the burden of proving that the defendants were guilty of wanton misconduct in failing to warn her of the dangerous stairwell. The jury returned a verdict (10--2) in favor of the defendants and judgment was entered thereon. The plaintiff appeals from that judgment.

A threshold issue presented by this case is whether any error assigned to the jury instructions can be considered due to the form in which exceptions were taken at trial. The defendants contend that the trial court's instructions become the law of the case, since the plaintiff failed to specify by number which instructions were excepted to. We disagree.

During the instruction conference, counsel for both sides argued extensively as to whether the case should be submitted to the jury on the theory of wanton misconduct as opposed to reasonable care under the circumstances. The record clearly shows that the plaintiff went to great lengths to persuade the court to adopt her theory of reasonable care under the circumstances. While the plaintiff did in fact fail to numerically list those instructions she excepted to, she did state that she objected to all of the court's instructions which incorporated a theory of wanton misconduct. In support of her position, the plaintiff cited numerous authorities to the court. The end result was that the trial judge considered the plaintiff's theory and rejected it. While we strongly disapprove of the informal manner in which the plaintiff excepted to the instructions actually given, we must not lose sight of the purpose of the rule regarding proper exceptions:

(T)he purpose of the rule requiring a party to except . . . is to put upon counsel the duty to use his best efforts to keep a trial free from error, and to this end to give the court an adequate statement of his position upon all matters upon which he asks the court to make a ruling. If a trial court then rejects the contention, there may be a just grievance for which an appeal is the only remedy; but an appeal is not a device for trying out new theories or improving on the trial below.

Moore v. Mayfair Tavern, Inc., 75 Wash.2d 401, 406--7, 451 P.2d 669, 673 (1969). In the addendum to the statement of facts, the trial judge certified to this Court that he was fully apprised as to the plaintiff's theory, and, upon considering it, he chose to reject this theory in favor of that proposed by the defendant. In other words, the trial court was not misled or prejudiced in any fashion. Since the plaintiff fully informed the trial court of the action she desired the court to take and the grounds therefor, she will not be precluded from arguing her assignments of error to this Court. Having dispensed with this procedural question, we now address the central issue raised by this appeal.

The plaintiff contends that the trial court erred by instructing the jury that 'an owner or occupier owes to a social guest a duty not to commit wanton misconduct in connection with the conditions of his premises.' The plaintiff argues that this is an antiquated rule that improperly insulated possessors of land from liability, and therefore should be replaced by the modern rule which imposes a duty of exercising reasonable care under the circumstances. We agree.

The traditional rule, originally formulated in England, protected licensees only where the possessor of land had committed willful and wanton acts of misconduct. 2 Harper & James, Law of Torts § 27.1 (1956). Realizing the harshness of this rule, courts have attempted to formulate exceptions which afford relief to injured parties. In Christensen v. Weyerhaeuser Timber Co., 16 Wash.2d 424, on page 432, 133 P.2d 797, on page 800 (1943), we stated:

The rule as thus expressed does not exclude liability on the part of the owner or proprietor for extraordinary concealed perils against which the licensee cannot protect himself, or for unreasonable risks incident to the possessor's activities.

While recognizing a need for a change, neither exception was formally adopted since the facts of Christensen did not come within these 'exceptional circumstances.'

Twenty years later, the 'activities' exception was formally adopted in Potts v. Amis, 62 Wash.2d 777, 384 P.2d 825 (1963). In Potts we noted the willingness of this Court 'to accept the rule of reasonable conduct under the circumstances,' yet we deferred our determination as to whether the rule covering the conditions of the premises required revision until the facts of a later case necessitated it. The instant case now mandates this Court to make that determination.

The old standard of wanton and willful misconduct must be abandoned as to licensees, yet we do not choose to adopt the exception enunciated in Christensen v. Weyerhaeuser Timber Co., supra. In Miniken v. Carr, 71 Wash.2d 325, 428 P.2d 716 (1967), we were confronted with a 'condition of the premises' case, and avoided the harsh standard of wanton misconduct by classifying the plaintiff as a business-invitee. However, we noted that it was not necessary to rest our determination on the invitee-licensee distinction alone. In Miniken we went beyond the Christensen exception and favorably cited the Restatement (Second), Torts § 342, which provides:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licenses of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.

Subject to a wide variety of qualifications, this now represents the general rule in an overwhelming number of jurisdictions. See Modern Status of Rules Conditioning Landowner's Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser, Annot., 32 A.L.R.3d 508 (1970). We recognize that this rule is broader than the Christensen exception in that it applies to any Unreasonable risk as opposed to an extraordinary concealed peril. However, this does not impose a duty on the landowner to act as an insurer for the benefit of his licensees. We are not requiring that the occupier either prepare a safe place, or that he affirmatively seek out and discover hidden dangers. What we do impose is a duty to exercise reasonable care where there is a known dangerous condition on the property and the occupier can reasonably anticipate that his licensee will not discover or realize the risks. Under these circumstances, the landowner can fulfill his duty by either making the condition safe or by warning his...

To continue reading

Request your trial
54 cases
  • Brewer v. Copeland, 43472
    • United States
    • United States State Supreme Court of Washington
    • November 13, 1975
    ...dubious distinctions still exist between the duties owed to licensees and invitees, our recent case of Memel v. Reimer, 85 Wash.2d 685, 538 P.2d 517 (1975), reduces the differences to a minimum and makes clear that the non-paying injured guest on real property is accorded far more protectio......
  • Taskett v. King Broadcasting Co., 43702
    • United States
    • United States State Supreme Court of Washington
    • February 11, 1976
    ...for an individual who has been tortiously injured and now seeks redress before this court. See, e.g., Memel v. Reimer, 85 Wash.2d 685, 538 P.2d 517 (1975); Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972); Cf. Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630 (1975); Blaak v. Davidson, 84......
  • Lunsford v. Saberhagen Holdings, Inc., 80728-1.
    • United States
    • United States State Supreme Court of Washington
    • June 4, 2009
    ...injured and now seeks redress before this court."7 Id. at 449, 546 208 P.3d 1097 P.2d 81 (citing Memel v. Reimer, 85 Wash.2d 685, 538 P.2d 517 (1975); Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972), overruled on other grounds by Brown v. Brown, 100 Wash.2d 729, 675 P.2d 1207 (1984); ......
  • Schooley v. Pinch's Deli Market, Inc., 17464-2-II
    • United States
    • Court of Appeals of Washington
    • March 15, 1996
    ...third or fourth class of people (licensees, trespassers). See Tincani, 124 Wash.2d at 138, 875 P.2d 621; Memel v. Reimer, 85 Wash.2d 685, 538 P.2d 517 (1975). To say that a social host owes a duty of ordinary care not to serve alcohol to minors, but no duty to adults, is to say that a class......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT