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By Garth L. Jones 


Historically, the common law has defined a land possessor’s duty to a person who is injured by a condition or activity on the premises according to the entrant’s status on the land.  Degel v. Majestic Mobile Manor, 129 Wn.2d 43, 49, 914 P.2d 728 (1996); Botka v. Estate of Hoerr, 105 Wn. App. 974, 982–83, 21 P.3d 723, 727–28 (2001).  Under the common law, entrants upon the premises are classified as either invitees, licensees, or trespassers.  This approach then applies different rules as to the scope of the duty owed by the possessor to each of these classifications. Under these rules a landowner generally owes a higher duty to a licensee than to a trespasser and owes the highest duty to an invitee.  Botka, 105 Wn. App. at 983.

The Common Law Classifications Are Premised on Antiquated Principles and Superseded Law

For years, these common law classifications have been harshly criticized by courts and commentators around the country who argue as a matter of policy that the antiquated common law classifications improperly insulate possessors of land from liability, and therefore should be replaced by a modern rule which imposes a duty of exercising reasonable care under the circumstances.   See Modern Status of Rules Conditioning Landowner’s Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser, 22 A.L.R.4th 294.  As noted in the seminal case of Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561 (1968) “the special rules regarding liability of the possessor of land are due to historical considerations stemming from the high place which land has traditionally held in English and American thought, the dominance and prestige of the landowning class in England during the formative period of the rules governing the possessor’s liability, and the heritage of feudalism.” Rowland, 69 Cal. 2d at 113.  Likewise, as the Restatement (Third) § 51 notes, at the time these status-based duties were developed, no general duty of care existed, and duties were based on relationships or specific activities.”  The law has long-since changed.

Many of these courts and commentators also point out that the common–law classifications incorrectly divert the factfinder’s attention from the foreseeability of the accident and the foreseeability of the injury rather than the status of the entrant. These authorities also assert that abrogation of the common–law rule serves the useful purpose of eliminating the complex, confusing, and unpredictable state of the law created by the attempts of common–law courts to avoid the harshness rigid application of the traditional rule.  See e.g., Webb v Sitka, 561 P2d 731 (Alaska 1977); Rowland v Christian, supra; Mile High Fence Co. v Radovich, 175 Colo 537, 489 P2d 308 (1971); Basso v Miller, 40 NY2d 233, 386 NYS2d 564, 352 NE2d 868 (1976); see also 22 A.L.R.4th 294.

The Washington Supreme Court Continues to Recognize These Common Law Classifications

Despite these criticisms, the Washington Supreme Court has declined to abandon the traditional common law premises liability classifications in favor of a “standard of reasonable care under all the circumstances.” See McKown v. Simon Prop. Grp., Inc., 182 Wn.2d 752, 764–65, 344 P.3d 661 (2015); Younce v. Ferguson, 106 Wn.2d 658, 662, 724 P.2d 991 (1986); Egede-Nissen v. Crystal Mountain, Inc., 93 Wn. 2d 127, 131–32, 606 P.2d 1214 (1980).  Among the reasons stated by the court for its refusal to abandon these classifications was simply that the court was not “ready” to do so:

In Egede-Nissen we acknowledged past questioning of the common law classification scheme, see Ward v. Thompson, 57 Wn.2d 655, 660, 359 P.2d 143 (1961) (“timeworn distinctions”); Mills v. Orcas Power & Light Co., 56 Wn.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 Wn.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.

Younce, 106 Wn.2d at 662-63.

Another and more important reason for the court’s reluctance to jettison these antiquated classifications is the court’s reliance on, and adherence to, the premises liability sections of the Restatement (Second) of Torts:

[T]his 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 (adoption of section 342 regarding duty owed licensees); McKinnon v. Washington Fed. Sav. & Loan Ass’n, 68 Wn.2d 644, 414 P.2d 773 (1966) (adoption of section 332 defining invitees). See also Miniken v. Carr, 71 Wn.2d 325, 328-29, 428 P.2d 716 (1967) (cited section 342 with approval); Potts v. Amis, 62 Wn.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.

Egede-Nissen v. Crystal Mountain, Inc., 93 Wn. 2d 127, 131–32, 606 P.2d 1214 (1980) (emphasis added).

The Washington Supreme Court Should Adopt The Modern Approach To Premise Liability Set Forth In Restatement (Third) § 51.

Since the time the that Supreme Court was asked to abandon this common law scheme in Younce, the American Law Institute, which drafts the Restatements of Law, has adopted Restatement (Third) § 51 General Duty of Land Possessors.  Section 51 specifically rejects the common law classifications and adopts a general duty of reasonable care to entrants on the land: 

a.     History and scope. Largely for historical reasons, the duty of a land possessor has not been a general duty of reasonable care but, instead, has consisted of differing duties depending on the status of the person on the land. At the time these status-based duties were developed, no general duty of care existed, and duties were based on relationships or specific activities. Thus, the status-based duties imposed on land possessors were consistent with basic negligence law and were the basis for imposing any duty on land possessors. However, with the evolution of a general duty of reasonable care to avoid physical harm as recognized in § 7, the status-based duties for land possessors are not in harmony with modern tort law. This Section rejects the status-based duty rules and adopts a unitary duty of reasonable care to entrants on the land. At the same time, § 52 reflects a policy-based modification of the duty of land possessors to those on the land whose presence is antithetical to the rights of the land possessor or owner.

Comment (a) to Restatement (Third) § 51 General Duty of Land Possessors (emphasis added).

Section 51 states:

Subject to §52 [which addresses a land possessor’s duty to flagrant trespassers], a land possessor owes a duty of reasonable care to entrants on the land with regard to:

(a)    conduct by the land possessor that creates risks to entrants on the land;

(b)   artificial conditions on the land that pose risks to entrants on the land:

(c)   natural conditions on the land that pose risks to entrants on the land; and

(d)  other risks to entrants on the land when any of the affirmative duties provided in Chapter 7 is applicable. [Section 7(a) provides for a duty of reasonable care that ordinarily exists when an actor creates a risk of harm to others.]

Restatement (Third) § 51 General Duty of Land Possessors (emphasis added).

With the advent of Restatement (Third) § 51 and its rejection of the common law classifications, as well as its adoption of a general duty of reasonable care to entrants on the land, it is now time for Washington to follow suit.