A. Common Law Classifications
In the State of Washington personal injury claims resulting from unsafe or defective conditions on another’s premises (i.e., buildings, grounds and related facilities) always require consideration of the injured person’s “status” on the other person’s property. Washington, unlike most states, still relies upon traditional, common law classifications of the injured person as an “invitee”, a “licensee” or a “trespasser”.
Depending upon which category the injured person falls into, the duty of care required of the property owner (or occupier such as a renter) to avoid liability will vary. There are a number of Washington cases that confirm these different categories. See Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121 (1994); Younce v. Ferguson, 106 Wn.2d 658 (1986); Dinter v. City of Kennewick, 121 Wn.2d 38, 41 (1993).
A “trespasser” is a person who remains upon the premises of another without permission or invitation. See Washington Pattern Jury Instruction WPI 120.01 and Winter v. Mackner, Wn.2d 943, 945 (1966). One who comes onto the property of another as a trespasser does so at his or her own risk. Accordingly, under the original common law as well as present Washington law, a land owner or occupier of land owes no duty to a trespasser except to avoid deliberately, willfully or wantonly injuring the trespasser. See Zuniga v. Pay Less Drug Stores, 82 Wn.App. 12 (1996); Johnson v. Schafer, 110 Wn.2d. 546 (1988); Ochampaugh v. City of Seattle, 91 Wn.2d 514 (1979).
A “licensee” is a person who comes upon the property of another with the permission, or at least at the tolerance, of the owner or occupier but without being invited and not for a business-related purpose that would benefit the owner or occupier. See WPI 120.08.
A licensee includes a social guest who is visiting for a non-business purpose. See Younce v. Ferguson, 106 Wn.2d 658 (1986).
Washington law requires an owner or occupier of property to conform to a standard of care with respect to a licensee that is described as follows:
“A possessor of land is subject to liability for physical harm caused to a licensee 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 licensee, and should expect that he/she will not discover or realize the danger, and
(b) The possessor fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and the risk involved, and
(c) The licensee does not know or have reason to know of the condition and risk involved.
Restatement (2d) of Torts Section 342; Younce, 106 Wn. 2d at 668.
In addition, the owner or occupier of the property has a duty to exercise “ordinary care” in conducting activities on the property in order to avoid injuring licensees on the property. See WPI 120.03; Potts v. Amis, 62 Wn.2d 77 (1963); Egede-Nissen v. Crystal Mountain, 93 Wn.2d 127 (1980).
An “invitee” is a person who is invited (either expressly or impliedly) onto the property of another for some purpose connected with a business purpose or potential business benefit to the owner (or occupier) of the property or for some purpose for which the property is held open to the public generally. See WPI 120.05; McKinnon v. Washington Federal, 68 Wn.2d 644 (1966). The WPI Jury Instruction for trials involving injuries to invitees describes the duty of care owed to an invitee as follows:
An owner or occupier of premises owes to a business or public invitee a duty to exercise ordinary care for his/her safety. This includes the exercise of ordinary care to maintain in a reasonably safe condition those portions or the premises that the invitee is expressly or impliedly invited to use or might reasonably be expected to use. WPI 120.06.
With respect to a business proprietor, a WPI Jury Instruction provides this additional statement of the duty owed to invitees of the business:
The operator of a business owes to a person who has an express or implied invitation to come upon the premises in connection with that business a duty to exercise ordinary care for his/her safety. This includes the exercise of ordinary care to maintain in a reasonably safe condition those portions or the premises that such person has expressly or impliedly invited to use or might reasonably be expected to use. WPI 120.06.01.
Thus, the business owner’s duty is essentially the same as the owner of non-business property with respect to invitees who come onto the property. Under Washington law a business owner owes an additional duty to invitees to protect them from criminal conduct on the premises that the business owner or operator knows, or should know, is occurring or about to occur. See WPI 120.06.03.
Regarding specific conditions on property, a property owner (or occupier) owes following duty of care to invitees:
An owner or occupier is liable for any injuries to its invitees caused by a condition on the premises if the owner or occupier:
(a) Knows of the condition or fails to exercise ordinary care to discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee;
(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it and
(c) Fails to exercise ordinary care to protect them from the danger. WPI 120.07.
The upshot of these rules of law, as expressed in WPI Jury Instructions, is that the owner (or occupier) of property must inspect for dangerous conditions on the premises and to make such repairs, safeguards, or warnings as maybe reasonably necessary for the protection of invitees under the circumstances. See Tincani v. Inland Empire Zoological Society, 124 Wn.2d at 139 (1994). As one Washington court stated, this duty of reasonable care includes an “affirmative duty to discover dangerous conditions.” Egede-Nissen v. Crystal Mountain, 93 Wn.2d. 127, 132 (1980).
E. Temporary Unsafe Conditions
Finally, the law imposes a duty on the owner (or occupier) of property to correct temporary unsafe conditions on the premises even if they were not created by the owner (or occupier). See WPI 120.06.02. In this regard, the duty applies only if the owner or occupier has actual knowledge (or what is called “constructive notice”) of the temporary unsafe condition. See Colman v. Ernst Home Center, 70 Wn.App. 213 (1993); Mathis v. H.S. Kress Co., 38 Wn.2d 845 (1951).
On the other hand, if the temporary, unsafe condition is created by the owner (or occupier) rather than someone else, there is no notice requirement for obvious reasons. See Falconer v. Safeway Stores, 49 Wn.2d. 478 (1956); Wardhaugh v. Weisfields, 43 Wn.2d 865 (1965); Erdman v. Lower Yakima Valley, Washington Lodge No. 2112 of B.P.O.E, 41 Wn. App. 197 (1985).
Accordingly, whenever a prospective client contacts our firm regarding an injury that occurred due to an unsafe/defective condition or some activity on someone else’s property, it is essential to determine the status of the injured person at the time that he/she was on the property. That will enable us to properly evaluate the facts in light of the legal standard of care that the property owner owed to the injured person.
Please contact us if you are injured on someone else’s property. We provide advice and representation you can count on.