Legal Memorandum: Landowner's Duty to a Trespasser in WA

Issue: Under Washington law, the owner or occupier of land have a duty to not willfully or wantonly injured a trespasser?

Under Washington law, the owner or occupier of land owes the duty of not willfully or wantonly injure a trespasser.  Evans v. Miller, 8 Wash. App. 364, 507 P.2d 887, 889, review denied, 82 Wash. 2d 1005 (1973).  Whether the defendant’s conduct is willful or wanton is a question of fact for the jury.  Adkisson v. City of Seattle, 42 Wash. 2d 676, 258 P.2d 461, 465 (1973).  Since neither willful nor wanton misconduct arises out of negligence, contributory negligence of the plaintiff is no defense to an action based on willful or wanton misconduct.  Id.*FN1

Apparently, Washington distinguishes between the terms willful and wanton.  “Strictly speaking, willful misconduct is characterized by intent to injure, while wantonness implies indifference as to whether an act will injure another.” Evans, 507 P.2d at 889.

Washington cases have defined wanton misconduct variously:  wanton misconduct is conduct or omission so great that the actor must know with a high degree of probability that death or serious bodily harm will result.  Id.  “It is the intentional doing of an act, or intentional failure to do an act, in reckless disregard of the consequences, and under such surrounding circumstances . . . that a reasonable man would know, or have reason to know, that such conduct would, in a high degree of probability, result in substantial harm to another.”  Liebhart v. Calahan, 72 Wash. 2d 620, 434 P.2d 605, 606 (1968).  […]