Tincani v. Inland Empire Zoological Soc.

• Citation: 124 Wn.2d 121,875 P.2d 621
• Decision Date: 16 June 1994
• Docket Number: No. 59702-2,59702-2
• Parties: , 91 Ed. Law Rep. 1151 Joseph TINCANI, as the natural father of Richard Tincani; Lynn Little, as the natural mother of Richard Tincani; and Thomas R. Luciani, as Guardian ad Litem for Richard Tincani, a minor, Respondents, v. INLAND EMPIRE ZOOLOGICAL SOCIETY, d/b/a Walk in the Wild Zoo, Petitioner.
• Court: United States State Supreme Court of Washington

Page 121

124 Wn.2d 121

875 P.2d 621, 91 Ed. Law Rep. 1151

Joseph TINCANI, as the natural father of Richard Tincani Lynn Little, as the natural mother of Richard Tincani; and Thomas R. Luciani, as Guardian ad Litem for Richard Tincani a minor, Respondents, v. INLAND EMPIRE ZOOLOGICAL SOCIETY, d/b/a Walk in the Wild Zoo, Petitioner.

No. 59702-2.

Supreme Court of Washington En Banc.

June 16, 1994.

Richter-Wimberley, P.S., Daniel E. Huntington, Spokane, for petitioner.

D.E. McKelvey, Jr., P.S. Timothy B. Fennessy, Spokane, Martin, McAllister & Murphy, Robert McAllister, Denver, CO, for respondents.

GUY, Justice.

Petitioner Inland Empire Zoological Society, doing business as Walk in the Wild Zoo (hereafter Zoo), seeks review of a Court of Appeals decision affirming a judgment against it in a personal injury action brought on behalf of Richard Tincani. We reverse and remand for a new trial.

FACTS

On November 12, 1987, Richard Tincani, along with 39 eighth and ninth grade students from Frontier Junior High School in Moses Lake, departed on a field trip to several points of interest in Spokane. The students were accompanied by two teachers, the school principal, and four parents. Tincani was 14 years and 11 months old at the time of the trip.

After visiting several locations in the morning, the group of students and adults traveled by bus to the Zoo in the early afternoon. The Zoo, which is located in the Spokane Valley, is a 240-acre zoological and botanical preserve. In November 1987, the general layout of the Zoo included a circular trail that proceeded through a natural setting in which animals were exhibited roaming free or in cages. At the entrance to the Zoo, adjacent to the turnstiles, was a 2-foot by 4-foot sign that included the statement: "STAY ON MAIN TRAIL". The circular main trail is a 4- to 6-foot wide hard-packed dirt trail, marked in some areas by stones or pebbles. The stated purpose of the directions to "stay on main trail" was to protect the Zoo's natural habitat from damage by visitors. The Zoo also has a number of unmarked paths and trails resulting from erosion, other visitors, and animals, none of which are depicted on the map.

When the group arrived at the Zoo, Larry Koester, the students' biology teacher and organizer of the trip, went to the entrance window and announced to a Zoo employee the group had arrived. The Zoo charged each student a $1 admission fee, which Koester had collected and paid upon arrival. Other than receiving general greetings, Koester did not receive any special instructions from Zoo officials. Koester testified he had called the Zoo in advance to ask questions about bringing a large group and whether there were any special requirements. No special instructions were given. Although the Zoo had an unwritten chaperon policy which required an adult chaperon for every group of five to six children, this policy was not generally enforced.

Before entering the Zoo, Koester instructed the students to act as responsible young adults. Koester informed the students they would be on their own to explore whatever interested them within the Zoo. Koester was given a bundle of 18-20 maps of the Zoo, which he handed to a student to distribute among the field trip participants. The map instructed people to "PLEASE STAY ON MAIN TRAIL". The Zoo was aware visitors often followed animal paths off the main trail.

Tincani and four of his schoolmates headed down the main trail in a counterclockwise direction. None of the boys in Tincani's group received a map. The group was not accompanied by an adult chaperon. As they proceeded down the trail, they followed signs to the eagles and a sign that said "nature trail". They followed the "main" nature trail further until they approached an apparent fork in the trail. These paths or trails off the main trail were described as animal trails, no more than a foot in width, not beaten down, and covered with vegetation. The boys followed this trail until it split into another fork. One boy testified he did not realize they were off the "main" trail because the sign they had initially followed stated "nature trail". Another boy testified he knew they were off the main trail and were in fact following an "off-to-the-side trail". There was no sign warning patrons not to take this trail, nor were there any signs warning patrons of any rock outcroppings.

At the second split in the trail, Tincani went in one direction and the other boys went in another direction. Eventually the boys lost site of Tincani and ended up on different points of high ground. Jorge Rodriquez, one of the boys in the group, testified Tincani called out to him and asked him to wait. Rodriquez testified Tincani then tried to find a way down a rock outcropping ¹ to meet up with them. Tincani's first attempt to climb down was unsuccessful. Noticing Tincani was trying to figure out a way down, Rodriquez told Tincani to go back the way he had come and he would wait for him. Rodriquez testified Tincani then told him he had found another way down. Rodriquez observed Tincani proceeding down natural steps in the rock formation from which he jumped 3 to 6 feet to a rock ledge. From that ledge, Tincani lost his footing and fell approximately 20 feet to the ground, suffering serious injuries. Tincani has no recollection of his visit to the Zoo.

Procedural History

Tincani and his parents sued the Zoo, the Zoo's general manager, the Moses Lake School District, and the teachers who went on the trip. Tincani settled with the school district, dismissed the general manager and the teachers, and proceeded to trial against the Zoo. The Zoo moved for summary judgment, arguing it had no duty to warn Tincani of any dangers associated with the cliff, and he had assumed the risk. The trial court denied the Zoo's motion. The Zoo subsequently moved for a directed verdict. The trial court denied this motion as well.

By special verdict, the jury found Tincani had suffered damages in the amount of $1,044,199.66. The jury found Tincani, the Zoo, and the school district comparatively negligent and their respective actions were a proximate cause of Tincani's injuries. The jury allocated 65 percent of the fault for Tincani's injuries to Tincani, 25 percent to the Zoo, and 10 percent to the school district. Accordingly, the trial court entered judgment against the Zoo in the amount of $261,049.92. The Zoo filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The Zoo's motion was denied and it appealed. The Court of Appeals affirmed the judgment, holding the Zoo owed Tincani a duty of reasonable care "irrespective of his status on the property." Tincani v. Inland Empire Zoological Soc'y, 66 Wash.App. 852, 858-62, 837 P.2d 640 (1992). The Court of Appeals also held Tincani's assumption of the risk was not a complete bar to his recovery against the Zoo. Tincani, 66 Wash.App. at 860, 837 P.2d 640. We granted the Zoo's petition for review. We reverse the Court of Appeals insofar as it holds a landowner owes a duty of reasonable care to children regardless of age or status and remand this matter for a new trial.

ISSUES

This case presents three issues for review:

1. Did the Zoo owe 14-year-old Richard Tincani a duty of reasonable care regardless of his age or status on the premises? We hold the Zoo did not owe such a general duty and decline to depart from the common law duties owed to invitees, licensees, and trespassers.

2. Did the jury reach an inconsistent verdict? We conclude the jury's finding that Tincani was a licensee at the cliff conflicts irreconcilably with its finding that the Zoo was partially at fault for Tincani's injuries.

3. Did Tincani's conduct constitute implied primary assumption of the risk of harm which represents an absolute bar to recovery? We hold Tincani's conduct did not constitute implied primary assumption of the risk.

ANALYSIS

I Status Determines Duty of Care

A cause of action for negligence requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984). The threshold determination of whether the defendant owes a duty to the plaintiff is a question of law. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 220, 802 P.2d 1360 (1991) (citing Pedroza, 101 Wash.2d at 228, 677 P.2d 166). In premises liability actions, a person's status, based on the common law classifications of persons entering upon real property (invitee, licensee, or trespasser), determines the scope of the duty of care owed by the possessor (owner or occupier) of that property. Van Dinter v. Kennewick, 121 Wash.2d 38, 41, 846 P.2d 522 (1993); Younce v. Ferguson, 106 Wash.2d 658, 666-67, 724 P.2d 991 (1986). See generally W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Torts §§ 58-61 (5th ed. 1984) (hereafter Prosser & Keeton on Torts ).

The parties dispute the duty of care the Zoo owed Richard Tincani at the time his injury occurred. By special verdict, the jury found Tincani was a licensee at the time he was climbing on the cliff. The jury further found the Zoo, the Moses Lake School District, and Tincani were negligent, and such negligence, in each case, was a proximate cause of Tincani's injuries. The Zoo appealed, claiming the trial court erred in several of its instructions to the jury regarding the duty owed by a zoo operator. The Court of Appeals affirmed the judgment, holding the Zoo owed Tincani, a 14-year-old child, a duty of reasonable care regardless of his status on the property. Tincani, 66 Wash.App. at 858, 837 P.2d 640. In view of its holding, the Court of Appeals declined to address the Zoo's claimed errors regarding the trial court's instructions to the jury relating to Tincani's status on the property. Tincani, at 859, 837 P.2d 640.

The Zoo...