This is an action for personal injuries sustained by petitioner A.E. Egede-Nissen, a Norwegian national, when she fell from a chairlift at Crystal Mountain ski area. A Pierce County Superior Court jury found Crystal Mountain, Inc., negligent, assessed total damages of $150,000, and found Egede-Nissen "contributorially negligent" to the extent of 55 percent. Crystal Mountain appealed and the Court of Appeals, Division Two, reversed and remanded for a new trial. Egede-Nissen v. Crystal Mountain, Inc., 21 Wn.App. 130, 584 P.2d 432 (1978). We agree with the Court of Appeals, although we base our conclusion on somewhat different grounds.
The facts are set forth in considerable detail in the opinion of the Court of Appeals. Crystal Mountain, Inc., operates recreational ski facilities on public-owned land open to the public for recreational purposes. April 25, 1973, plaintiff Egede-Nissen, a stewardess, and several members of her Scandinavian Airlines System (SAS) flight crew traveled to Crystal Mountain to picnic and sightsee. The ski lodge and chairlifts were not open for business, although the C-4 chairlift was running as an accommodation for three employees of a ski manufacturing company. No lift attendants were present.
From the loading area of the C-4 lift, the SAS group noted two or three skiers on the slopes above. Captain Hartvedt decided to ride the lift up to the skiers and look for and inquire about a picnic site. He boarded a moving chair and Egede-Nissen impulsively decided to accompany him. In her haste to board, she slipped and landed in a precarious position facing and grasping the chair with her lower torso and legs dangling below. Captain Hartvedt, occupying the same chair, attempted to stabilize her without himself falling from the chair.
Petitioner commenced this negligence action against Crystal Mountain in Pierce County Superior Court in June 1973. The case was not tried until November 1976, at which time it was vigorously, often heatedly, contested. A verdict was returned in favor of the plaintiff in the amount of $67,500.
A major legal question at trial was Egede-Nissen's status (invitee, licensee or trespasser) aboard the chairlift. Her status depended upon a factual determination whether Crystal Mountain had given adequate notice, by signs or barricades, that the C-4 lift was not in public operation. On that issue, the evidence was sharply in conflict.
The trial court gave several instructions addressing the status of Egede-Nissen aboard the chairlift, to which Crystal Mountain objected. Instructions on this issue proposed by Crystal Mountain were refused by the court. In addition to objecting to instructions given and refused and certain evidentiary rulings, Crystal Mountain charged misconduct on the part of the trial judge.
On review, the Court of Appeals declared the trial court's instruction No. 20 to be erroneous. Instruction No. 18 was also declared to be defective. The court then selected from among Crystal Mountain's numerous assignments of error and addressed "major issues in order to avoid possible error at the new trial." Egede-Nissen, at 137. The Court of Appeals did not address the allegation of trial court misconduct.
We granted Egede-Nissen's petition for discretionary review to consider, inter alia, whether we should abandon
Further, this court in the past has looked to the Restatement (Second) of Torts (1965) for guidance in reviewing
Petitioner's status aboard the chairlift turned on the resolution of a factual dispute — whether Crystal Mountain had given adequate notice that the C-4 lift was closed to the public. Initially, Egede-Nissen's status was that of a public invitee, which status she would retain until adequately warned of limits to the area of her invitation. Miniken v. Carr, supra; Mesa v. Spokane World Exposition, 18 Wn.App. 609, 570 P.2d 157 (1977). If, however, petitioner unreasonably strayed beyond the area of invitation, her status would change from that of invitee to a
The trial court gave a number of instructions addressing the standard of care owed petitioner, to which Crystal Mountain objected. The exceptions presented to the court were rambling and imprecise. While it is rather clear that Crystal Mountain desired to classify petitioner as a licensee or a trespasser, at no point, however, in its exceptions or proposed instructions did Crystal Mountain advise the trial court precisely and correctly how that alternative should be presented to the jury under the circumstances of this case.
The Court of Appeals held the trial court erred in giving instruction No. 20,
Crystal Mountain did not take exceptions to instruction No. 20 on the ground that it "confuses the questions of the scope of the invitation and the existence of a breach of the applicable duty." Egede-Nissen v. Crystal Mountain, Inc., 21 Wn.App. 130, 135, 584 P.2d 432 (1978). Crystal Mountain objected that the instruction failed to label plaintiff as a trespasser. It did not apprise the trial court of the defect in instruction No. 20 as found and discussed by the Court of Appeals. Therefore, under our rule the error in instruction No. 20 cannot serve as the basis for a new trial.
In the instant case, it was Crystal Mountain's theory that Egede-Nissen was at best a licensee and more properly a trespasser aboard the C-4 lift, to whom it owed a duty only to refrain from willful or wanton misconduct. While there was substantial evidence to support the trespasser theory, as pointed out by the Court of Appeals at page 137, the trial court correctly refused Crystal Mountain's proffered instructions because they assumed Egede-Nissen to be a trespasser as a matter of law. Such an assumption was erroneous in light of the posture of the case at the close of presentation of all the evidence, and the court properly refused the proposed instructions. As previously noted, her status was dependent upon factual resolution.
The Court of Appeals also found instruction No. 18
Egede-Nissen's status aboard the lift was dependent upon the scope of the invitation extended to her by Crystal Mountain. Mesa v. Spokane World Exposition, supra. The scope of the invitation was a contested matter to be resolved by the jury. As pointed out by the Court of Appeals at pages 137-38, the trial court erred in giving instruction No. 18, which assumed that Egede-Nissen had the status of an "invitee". The resolution of that question was dependent upon facts to be found by the jury. We hold that the trial court was sufficiently apprised of the defect in instruction No. 18 and that the giving of the instruction constituted reversible error for which a new trial is required.
The Court of Appeals addressed certain remaining issues to guide the trial court on remand. For this reason, we examine below those issues with which we differ.
Crystal Mountain objected to the trial court's refusal to give its proposed instruction on "sudden emergency." The Court of Appeals agreed and held that the instruction should have been given. Under the circumstances of this case, we differ with the Court of Appeals and agree with the trial court.
See also Sandberg v. Spoelstra, 46 Wn.2d 776, 285 P.2d 564 (1955). The doctrine cannot be invoked by one whose own conduct brought about, in whole or in part, the emergency with which he is confronted. See Tobias v. Rainwater, 71 Wn.2d 845, 431 P.2d 156 (1967).
Regarding the trial court's evidentiary rulings challenged by Crystal Mountain, we express some reservations about the Court of Appeals analysis. Crystal Mountain contended that the trial court erred in allowing plaintiff to testify regarding (1) the causal relation between her injuries and back problems during a subsequent pregnancy; and (2) her inability to return to her former employment. The testimony was presented in the context of establishing damages. The Court of Appeals held plaintiff's response to the first inquiry was excludable as opinion evidence and the response to the second was excludable as hearsay.
Finally, Crystal Mountain asserts prejudicial interjection on the part of the trial court throughout the almost 2-week trial. This issue was raised in the trial court, the Court of Appeals, and again in this court. Such a charge should not be lightly made nor, when made, should it be slighted by a reviewing court.
At the inception of the trial, the judge granted Crystal Mountain's motion to exclude witnesses from the courtroom. Differences which arose during trial may be attributed in large measure to varying interpretations placed upon the scope of this order. In the course of the trial, the court occasionally admonished Crystal Mountain's attorney regarding the scope of his discussions with excluded witnesses before they testified. Crystal Mountain objected that restraints imposed by the court were unduly restrictive. After more than 7 days of trial, Crystal Mountain moved for mistrial on the ground, inter alia, that adequate presentation of the defense was prevented by the trial court's interpretation and enforcement of its order excluding witnesses. The motion was denied.
The trial court has discretion to exclude witnesses from the courtroom. See 2 L. Orland, Wash. Prac. § 227 (1967); ER 615. We agree with the Court of Appeals that a more precise and detailed pretrial order could have substantially
Crystal Mountain also based its mistrial motion on the cumulative effect of trial court gestures and actions, allegedly indicating to the jury the court's displeasure or incredulity regarding certain defense witnesses. These instances assertedly consisted of facial expressions indicating disbelief; questioning the veracity of defense witnesses; and
Out of the jury's presence, two defense witnesses were threatened by the trial judge with possible perjury prosecutions. In one instance the court ended its admonition to the witness with this statement:
The record does reflect, however, the court's concern that the jury had been presented an orchestrated set of defense witnesses and the judge's conviction that he had observed some of the orchestrating occur. The court conducted its more rigorous interrogation of witnesses in response to this concern.
Lengthy affidavits from Crystal Mountain's counsel and also its vice president, who was present throughout the
A trial judge should not enter into the "fray of combat" nor assume the role of counsel. See generally Notes, Judicial Intervention in Trials, Wash. U.L.Q. 843 (1973). An isolated instance of such conduct may be deemed harmless error, however, if it cannot be said to violate constitutional bounds of judicial comment. Const. art. 4, § 16. This is particularly true if the response appears invited and represents a natural, limited reaction to an immediate stimulus. In such instances, potential error may be cured by an instruction, if requested. See generally Gestures or Facial Expressions of Trial Judge in Criminal Case, Indicating Approval or Disapproval, Belief or Disbelief, as Ground for Relief, Annot., 49 A.L.R.3d 1186 (1973). On the other hand, the cumulative effect of repeated interjections by the court may constitute reversible error. In the instant case, we believe the trial court, perhaps inadvertently without meaning to do so, actively interceded in the trial more frequently and at greater length than the circumstances warranted.
Quoted with approval in Risley v. Moberg, supra. We are confident that the problem will not recur at the new trial.
As modified herein, the Court of Appeals is affirmed.
UTTER, C.J., ROSELLINI, WRIGHT, BRACHTENBACH, HOROWITZ, DOLLIVER, and WILLIAMS, JJ., and STEERE, J. Pro Tem., concur.
"If an owner or occupier of land which is open to the general public wishes to exclude the general public from any particular portion of such land, or from any instrumentality maintained on such land, he must use reasonable care to do so. The failure to use reasonable care is negligence. Such negligence has the same effect as any other act of negligence. Therefore, it will not render a defendant liable for damages unless you further find that it was a proximate cause of the claimed injury or damage." (Italics ours.)
"The owner and operators of a recreational transportation device, such as a chairlift, must use that degree of care which a reasonably prudent owner and operator would exercise under similar conditions or circumstances. In considering the care to be used, you must take into account the dangers, if any, to be encountered in the normal use of the device and in such uses as the owner and operators should have expected the device to have been put in the exercise of reasonable care. Failure to use such reasonable care is negligence."
"Any party, his attorney or his representative has a right to interview a witness for the purpose of learning what testimony the witness will give. The fact that the witness has talked with any attorney, a party, or a party's representative, and told him what his testimony would be, does not, of itself, reflect adversely on the testimony of the witness.
"However, no party, attorney, or representative of a party has a right to suggest to a witness what his testimony should be. When witnesses have been excluded from the courtroom during the course of trial, as they have been in this case, if you find that a party, his attorney or his representative has informed a prospective witness what previous testimony in the case on a significant issue has been or has suggested to a witness what his testimony should be, you may take these matters into consideration along with any other matters that bear on believability or weight, in determining what weight should be given the testimony of the witness."