Memel v. Reimer

Horowitz, J.

(concurring) — I agree the assignments of error directed to instructions given embodying the willful, wanton injury rule are reviewable. I also agree we should now adopt as the correct rule of liability of a possessor of land, the rule as formulated in Restatement (Second) of Torts § 342 (1965). To avoid any misunderstanding on issue of reviewability, something further should be briefly stated.

Defendants contend the errors assigned are not reviewable (1) because no exceptions were taken to the instructions given and (2) because plaintiff’s proposed instruction No. 2, was an incorrect statement of the reasonable care rule with respect to licensees for which plaintiff contended. The apparent basis for the latter contention is the proposed instruction required both a duty to warn of the dangerous condition on the premises and a duty to use reasonable care to maintain those premises in a reasonably safe condition. The duty is, however, in the alternative only. See Restatement (Second) of Torts § 342 (1965); Miniken v. Carr, 71 Wn.2d 325, 329, 428 P.2d 716 (1967) (“the condition must either be repaired or warning given.”)

If the sole error assigned had been the court’s refusal to give proposed instruction No. 2, the assignment would not have been well taken because the court was clearly correct in refusing to give that instruction even on plaintiff’s own theory. A court does not err in refusing to give an incorrect *692instruction. Provins v. Bevis, 70 Wn.2d 131, 422 P.2d 505 (1967); Robillard v. Selah-Moxee Irrigation Dist., 54 Wn.2d 582, 343 P.2d 565 (1959); Knight v. Pang, 32 Wn.2d 217, 201 P.2d 198 (1948). Indeed, had the court given the erroneous instruction requested, defendants might properly have assigned error thereto, claiming prejudice.

Here, however, although there was a literal failure to comply with CR 51 (f) in not taking formal exceptions to the instruction given, nevertheless, that fact must be viewed in context. The parties had already discussed in some detail with the court the plaintiff’s reason for contending the willful, wanton injury rule then prevailing should be abandoned and the reasonable care rule as set forth in Restatement (Second) of Torts § 342 (1965) should be the rule to apply. When, therefore, the court asked if any party intended to take exceptions, the court then knew the plaintiff’s position. Furthermore, when plaintiff took his exceptions to the failure to give proposed instruction No. 2, it was apparent that plaintiff had not abandoned his position that the willful, wanton injury rule should be displaced by the reasonable care rule. Plaintiff’s counsel stated:

once the plaintiff shows evidence of a dangerous condition . . . the court then should instruct, not on wanton misconduct, but on reasonable conduct under the circumstances, so plaintiff thus takes exception to the court’s failure to adopt that theory. We have cited the cases of Miniken v. Carr and Maher v. Voss, which we believe incorporates the theory I have just previously discussed.

Miniken v. Carr, supra, to which counsel referred, was intended to incorporate the theory “previously discussed.” Miniken v. Carr which cited Restatement (Second) of Torts § 342 (1965), made it plain the duty to warn was an alternative to the duty to use reasonable care to maintain the premises in a reasonably safe condition. The court therefore had an opportunity to correct the instructions he intended to give, even though he was not required to give *693proposed instruction No. 2 in the form submitted. The error was accordingly reviewable.

Utter and Brachtenbach, JJ., concur with Horowitz, J.