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December 16, 1953

FALTICO et ux.

The opinion of the court was delivered by: DRIVER

The claim asserted by plaintiff's amended complaint is for damages for personal injury. Defendants, a marital community, have moved for summary judgment. The motion presents the question whether defendants are entitled to judgment as a matter of law on undisputed facts, shown by the record as it now stands. The record consists of the pleadings, the defendants' affidavits, plaintiff's counter-affidavit, and plaintiff's deposition. *fn1"

Summarized briefly, the undisputed record facts are as follows:

 During the late summer and early fall of 1950, defendants, as promoters and operators, staged automobile races on an inclosed, circular race track at State Line Village, in northern Idaho. The place had the usual grandstand near the track for the accommodation of spectators. Rodeo shows also were sometimes held there; and, below the level of the grandstand and between it and the track, there were a number of narrow chutes, inclosed by high fences and gates, through which the mounted rodeo riders passed and from which they emerged for their performances. There was no fence or barrier between the chutes and the track. On the night of September 5, 1950, shortly before 10:30 o'clock, plaintiff, who, temporarily, was living in the village, entered the race track inclosure through the main gate. The races had been going on for some time, and the gate was open and unattended. He entered without the knowledge or express consent of defendants and without paying any admission fee. He walked over to the first rodeo chute, north of the main gate, and climbed up on it in a position to watch the races. He sat on one of the side gates and put his feet across on the other gate. After plaintiff had been in the 'arena' what he estimated to be fifteen or twenty minutes and on the chute five or ten minutes, a tire on one of the racing cars blew out, causing the vehicle to skid off the track and strike the chute on which he was sitting. He did not see the car until it struck the chute. The force of the impact caused him to fall to the ground. He suffered a fractured left leg, the injury which is the basis of his claim.

 Plaintiff had attended the automobile races at the State Line Village track on two prior occasions that same season. One time he paid admission and sat in the stands, and, on the other occasion, he sat on one of the rodeo chutes. He had witnessed two or three incidents which he would not say were 'wrecks,' but, rather, what he described in his deposition as 'through the fence, or slide off the track, or a breakdown.' Later on, in the same deposition, he testified that he saw cars that 'had smashed into the south side of the grandstand; that is, the bleacher seats on the south side,' after they had come around a curve. No one had instructed or requested plaintiff to sit on the chutes. He sat there of his own 'free will,' because he didn't think he had time or wanted to take the time to see many races, but 'wanted to go right back.' He was not aware that it was dangerous to sit on the chutes and did not give it a thought. There is no evidence in the record of plaintiff's age at the time of his injury, but it does appear that he was, to say the least, fully matured. He had been a bartender for thirteen years; and, before that, he had worked for several years as a policeman, fireman, and salesman.

 In his amended complaint, plaintiff alleges that defendants were negligent in failing to maintain a barrier of reasonably sufficient strength properly to protect spectators of the races and, in failing to maintain or provide any warning as to the hazardous risks attendant upon their business, fully known to the defendants. In order to determine whether defendants were chargeable with negligence, as alleged, it is necessary first to consider what was their duty of care to plaintiff, which, in turn, depends upon the legal relationship existing between plaintiff and defendants. He claims that he was an invitee and that defendants, as proprietors of a place of public amusement, owed him the duty of exercising ordinary care to maintain the premises in a reasonably safe condition, commensurate with the nature and hazards of the business conducted thereon. *fn2" Defendants, on the other hand, contend that plaintiff was either a trespasser or a licensee and, therefore, they owed him no duty other than to refrain from willfully or wantonly injuring him. *fn3"

 I have in mind the well-established general rule that, in a tort action, the law of the place where the wrong has been committed is the substantive law that governs the rights and duties of the parties and determines whether or not the act or omission complained of gives rise to a civil liability for tort. 15 C.J.S., Conflict of Laws, § 12, page 897. In the instant case, the alleged wrong was committed in the State of Idaho; but counsel on neither side have cited any Idaho case, and my own independent dependent research has produced only one, Pincock v. McCoy, just cited in the margin, in footnote 3, which I regard as sufficiently analogous to be helpful. The oral argument of counsel on both sides dealt almost exclusively with Washington law. I shall follow counsel's lead to the extent of stressing that law in this Opinion. I feel justified in doing so, because I regard the Washington cases which I shall discuss as sound, well-reasoned, and in accord with the weight of authority.

 In Schock v. Ringling Brothers, cited in footnote 3, Judge Steinert, the writer of the Court's Opinion, with his usual thoroughness and clarity, defined the three relationships, now under consideration, as follows (5 Wash.2d 599, 105 P.2d 841):

 'An invitee is one who is either expressly or impliedly invited onto the premises of another for some purpose connected with the business in which the owner or occupant of the premises is then engaged, or which he permits to be conducted thereon; and to establish such relationship, there must be some real or supposed mutuality of interest in the subject to which the visitor's business or purpose relates. * * * (Citing authorities.)

 'A licensee occupies an intermediate position between that of an invitee and that of a trespasser. He is one who goes upon the premises of another, either without any invitation, express or implied, or else for some purpose not connected with the business conducted on the land, but goes, nevertheless, with the permission or at the toleration of the owner. * * * (Citing authorities.) *fn4"

 'A trespasser is one who enters the premises of another without invitation or permission, express or implied, but goes, rather for his own purposes or convenience, and not in the performance of a duty to the owner or one in possession of the premises. (Citing authorities.)' *fn5"

 In the present case, the plaintiff would seem, at best, to be no more than a mere licensee. He had no express invitation to enter defendants' premises. If the open, unattended entrance gate be taken as a tacit invitation to the public to come in and see the remainder of the show, free of charge, the invitation reasonably could not be considered as broader than the privileges accorded paying patrons, namely, to occupy the stands or other places provided for the accommodation of spectators. Obviously, it could not be regarded as a blanket invitation to the public to stand or sit anywhere within the race track inclosure. If, therefore, it be assumed that plaintiff had an implied invitation to enter, the invitation was a limited one, and plaintiff did not keep within its limitations. A person who is invited to use only part of another's premises, or to use the premises for a limited, special purpose, becomes a mere licensee if he goes upon other parts to which he is not invited, or uses the premises for some unauthorized purpose of his own. *fn6"

 Plaintiff's situation did not measure up to the requirements of the invitee relationship for another reason. The essential element of mutuality of interest was lacking. Plaintiff entered the race track seeking entertainment for his own pleasure. Defendants derived no profit or benefit therefrom. Plaintiff contends that he was, in effect, invited, along with the general public, to a free performance in order to advertise defendants' business and to solicit future patronage. The contention is not factually supported by the record, except for such inferences as may be drawn from the circumstance that the main gate was open and unattended at the time plaintiff entered.

 No case has come to my attention in which it has been held that possible benefit to the proprietor, or occupant, in the form of good will alone, is sufficient to supply the element of mutuality of interest. On the other hand, in Schock v. Ringling Brothers, cited in footnote 3, where three children suffered personal injuries when they, along with numerous other persons, were watching a circus unload its equipment and paraphernalia in a railroad yard, which the railroad company had placed at the disposal of the circus for that purpose, it was held that the children were only licensees and could not recover for their injuries. Good will and advertising benefits to the circus apparently were not considered by the Court.

 In Smith v. Crescent Amusement Co., 27 Tenn.App. 632, 184 S.W.2d 179, 182, the owner of a theatre permitted certain churches to use its building for religious revival meetings, free of charge. The meetings were open to the public, without admission fee. It was held that a person who entered the theatre to attend one of the meetings was a licensee, and the owner's duty of care toward him was limited to refraining from the infliction of willful or wanton injury. The Court commented on the 'good will' factor in that case as follows: 'It is too ...

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