Younce v. Ferguson

• Decision Date: 11 September 1986
• Docket Number: No. 52168-9,52168-9
• Citation: 724 P.2d 991,106 Wn.2d 658
• Parties: Lisa YOUNCE, Appellant, v. Tamera FERGUSON; Dean Strunk; Charles M. Strunk and Mrs. Charles M. Strunk, husband and wife; and John Doe, whose identity is not now known, Respondents.
• Court: Washington Supreme Court

Page 658

106 Wn.2d 658

724 P.2d 991

Lisa YOUNCE, Appellant, v. Tamera FERGUSON; Dean Strunk; Charles M. Strunk and Mrs.

Charles M. Strunk, husband and wife; and John

Doe, whose identity is not now known, Respondents.

No. 52168-9.

Supreme Court of Washington,

En Banc.

Sept. 11, 1986.

Wilson, Nichols & Marshall, Dennis Lane, Vancouver, for appellant.

Blair, Schaefer & Hutchison, John Potter, Vancouver, for respondents.

Bryan Harnetaux, Winston & Cashatt, Robert Whaley, Spokane, amici curiae for appellant Wash. Trial Lawyers Ass'n.

Bertha Fitzer, Tacoma, amicus curiae for respondents Wash. Ass'n. of Defense Counsel.

GOODLOE, Justice.

In this case, we determine whether the common law classifications of entrants as invitees, licensees, or trespassers should continue to be determinative of the standard of care owed by an owner or occupier of land and whether the status of the entrant in this case was correctly determined. We answer both questions affirmatively and affirm the trial court.

Appellant Lisa Younce appeals the dismissal of respondents Charles, Thelma, and Dean Strunk from the suit. Lisa was injured when a car driven by Tamera Ferguson ran into her on a parcel of Strunk property, where a high school graduation "kegger" party was being held.

Dean Strunk, the son of Charles and Thelma Strunk, was a member of the 1977 Evergreen High School graduating class. Class members planned a graduation party to follow commencement exercises on June 7, 1977. Tickets to the party were sold for $4.00 to purchase beer, food, and music. Dean made arrangements to and did buy 15 kegs of beer from a local tavern for the party with ticket proceeds. The party was originally scheduled to be held on another class member's property, but during the commencement exercises it was generally agreed that the party would be moved to the Strunk property on 109th Avenue.

The 109th Avenue property was the largest of eight parcels of land that Charles and Thelma Strunk had under lease for farming purposes. The property was located 6 miles or 8-9 minutes driving time from the Strunk residence. Dean and his younger brother, Brad, took care of family duties at the property.

Following commencement exercises, Dean went home, changed clothes, and transported the kegs to the 109th Avenue property. Charles and Thelma returned home from the commencement exercises around 10:20 p.m. to 10:30 p.m. From about 11 p.m. to 11:10 p.m., four or five carloads of people arrived at the Strunk residence asking the location of the party. The Strunks also received a phone call from someone looking for the site. More than one inquirer advised the Strunks that the party was on Strunk property. Charles Strunk drove to 4 parcels within 1 mile of the family residence to see if there was a party, testifying he would have run the kids off the property if he had found them. He did not, however, check the 109th Avenue property.

When Dean arrived at the 109th Avenue property around 11 p.m. with the kegs, 100-400 minors were present, including graduating seniors, school mates, students from other schools, and other minors not attending school. Brad was collecting tickets, directing cars to parking areas, and advising cars' occupants of the kegs' location.

Tamera Ferguson, a minor, paid for attendance when she arrived. Lisa Younce, a minor, arrived around 11:30 p.m. with Judy Bock, who had previously bought two tickets for their admission. Lisa and Judy had had one mixed drink before arriving. They mixed another after arriving but Lisa did not drink it.

When the accident occurred, at approximately 12:15 a.m., drinking had been going on at the site for at least an hour but the party attendees were well behaved. There had been no excessive drinking except for Dean and Tamera, who both admitted they were intoxicated from alcohol consumed at the party site. No automobile had been driven through the area where party attendees were standing. Lisa was standing in a dimly lit grassy and gravel area near the main barn and approximately 150 feet away from the kegs. Lisa was hit from behind by a Volkswagen driven by Tamera. The car hit her in the right knee and knocked her to the ground. Lisa was not under the influence of or affected by alcohol at the time she was hit. Tamera left or was taken from the scene. Lisa was taken to the hospital. Charles and Thelma Strunk were notified of the accident. They went to the 109th Avenue property with cooking utensils and prepared hamburgers from 1:30 a.m. to 5:30 a.m. when the kegs were emptied and the last attendees left.

Dean and Lisa both knew that when minors drink they become intoxicated, and when they become intoxicated they will drive. Charles and Thelma Strunk knew that minors drink at parties.

Lisa sued Tamera. The trial court found that Tamera had negligently injured Lisa and entered judgment for $69,543.31. Tamera did not appear at trial and has not appealed.

Lisa also sued the Strunks. Her first theory alleged negligence per se based on a violation of RCW 26.28.080 (selling or furnishing intoxicating liquor to a minor). Based on the case of Hulse v. Driver, 11 Wash.App. 509, 524 P.2d 255 (1974), the trial court dismissed this portion of the plaintiff's complaint with prejudice. This issue has not been appealed, and no argument has been presented. Lisa's second theory which is the basis of the entire appeal relates to the common law classifications between invitee, licensee, and trespasser and the duty of care owed by the owner or occupier of land.

The trial court found that liability on the part of the Strunks depended upon Lisa's status on the property. The court found Lisa was a social guest, and therefore only a licensee. Applying the duty of care applicable to licensees and articulated in Restatement (Second) of Torts § 332 (1965), the trial court found the duty had not been breached. The Strunks were dismissed with prejudice. The court explained in its memorandum opinion, however, that if Lisa had been an invitee and the duty of care therefore had been one of reasonable care under all the circumstances, the court would have concluded that the Strunks had breached their duty to Lisa. The court also noted, however, that this was a case where Lisa could appreciate the dangers or conditions of the premises. Lisa appealed. The case is before this court on an administrative transfer from the Court of Appeals, Division Two.

Two issues must be addressed. First, we must decide whether in a claim for injury against an owner or occupier of land, the standard of care owed should continue to turn upon the common law distinctions between invitee, licensee, and trespasser, or whether such distinctions should be replaced by a negligence standard of reasonable care under all the circumstances. Because we retain the common law classifications, we must also decide whether Lisa Younce was properly characterized as a licensee or whether she should have been characterized as an invitee.

Lisa argues that the common law distinctions of invitee, licensee, and trespasser should no longer determine the applicable standard of care owed by an owner or occupier of land in Washington. She urges they be abandoned and replaced by a standard of reasonable care under all the circumstances. See 16 Gonz.L.Rev. 479 (1981). Washington relies upon and has adopted many of the definitions and corresponding duties outlined in Restatement (Second) of Torts (1965). Egede-Nissen v. Crystal Mt., Inc., 93 Wash.2d 127, 131-32, 606 P.2d 1214 (1980).

In Egede-Nissen we acknowledged past questioning of the common law classification scheme, see Ward v. Thompson, 57 Wash.2d 655, 660, 359 P.2d 143 (1961) ("timeworn distinctions"); Mills v. Orcas Power & Light Co., 56 Wash.2d 807, 820, 355 P.2d 781 (1960) ("ancient categories"), but decided that we were not ready then to totally abandon the traditional categories and adopt a unified standard. Egede-Nissen, 93 Wash.2d at 131, 606 P.2d 1214. We still are not ready and reaffirm use of common law classifications to determine the duty of care owed by an owner or occupier of land.

A recent annotation, Annot., Modern Status of Rules Conditioning Landowner's Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser, 22 A.L.R.4th 294 (1983), outlines the current positions of the different jurisdictions on this issue. Retention of the common law classifications continues to be the majority position.

Nine jurisdictions have abolished use of the common law classifications of invitees, licensees, and trespassers as determinative of the landowner's or land occupier's duty of care. See Annot., at 301-307; Rowland v. Christian, 69 Cal.2d 108, 443 P.2d 561, 70 Cal.Rptr. 97, 32 A.L.R.3d 496 (1968); Pickard v. City & Cy. of Honolulu, 51 Hawaii 134, 452 P.2d 445 (1969); Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 [724 P.2d 994] P.2d 308 (1971); Smith v. Arbaugh's Restaurant, Inc., 152 U.S.App.D.C. 86, 469 F.2d 97 (D.C.Cir.1972); Mariorenzi v. Joseph Diponte, Inc., 114 R.I. 294, 333 A.2d 127 (1975); Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976); Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564 (1976); Cates v. Beauregard Elec. Coop., Inc., 328 So.2d 367 (La.1976); Webb v. Sitka, 561 P.2d 731 (Alaska 1977); Hudson v. Gaitan, 675 S.W.2d 699 (Tenn.1984).

The typical analysis in these cases includes noting that England, where the distinctions originated, has abolished them by statute. Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, ch. 31. The cases also note that the United States Supreme Court refused to adopt the rules relating to the liability of a possessor of land for the law of admiralty. Kermarec v. Compagnie Generale Transalantique, 358 U.S. 625, 630-31, 79 S.Ct. 406, 409-10, 3 L.Ed.2d 550 (1959).

The cases rejecting the classifications list the subtleties and subclassifications created in their respective jurisdictions. The opinions explain that it is difficult...