Camicia v. Howard S. Wright Construction Co. , 179 Wash. 2d 684 ( 2014 )

Stephens, J.

¶1 This case asks us to consider the scope of Washington’s recreational use immunity statute, former RCW 4.24.210 (2003).¹ Susan Camicia sustained severe injuries when she was thrown from her bicycle after colliding with a wooden post on a portion of the Interstate 1-90 (1-90) bicycle trail located in the city of Mercer Island (City). In response to Camicia’s negligence action against it, the City moved for summary judgment under RCW 4.24.210(1), which provides immunity from liability for unintentional injuries to landowners who “allow members of the public to use [the land] for the purposes of outdoor recreation . . . without charging a fee of any kind therefor.”

¶2 The Court of Appeals reversed the trial court’s grant of summary judgment, holding recreational use immunity could not be determined as a matter of law because there were disputed issues of fact as to whether the trail served a recreational purpose as opposed to a transportation purpose. We agree and affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶3 On review of summary judgment, the facts are viewed in the light most favorable to Camicia, the nonmoving party. CR 56(c); Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002).

A. The 1-90 Bicycle Trail’s Origins

¶4 The 1-90 bicycle trail was built by the Washington State Department of Transportation (WSDOT) in the mid-to-late 1980s and runs from Seattle to Mercer Island across Lake Washington and to other areas in the Puget Sound. To prevent motor vehicles from entering the asphalt trail, WSDOT installed wooden posts, also called bollards, at some locations where the trail intersects city streets.

¶5 In October 2002, WSDOT published an evaluation of whether the trail was a public park or recreation area for purposes of federal law. Under the provision of the Department of Transportation Act of 1966 known as “Section 4(f),”² the Secretary of Transportation may approve a transportation project’s use of a public park or recreation area only if no reasonable alternative exists and all measures to reduce harm are taken. 49 U.S.C. § 303(c). Consideration under Section 4(f) is not required, however, when the officials having jurisdiction over the site determine that recreation is not a major purpose of the land and is only a secondary or occasional purpose. See former 23 C.F.R. § 771.135 (2002); Stewart Park & Reserve Coal., Inc. v. Slater, 352 F.3d 545, 556 (2d Cir. 2003) (quoting Fed. Highway Admin., Section 4(F) Policy Paper (revised June 7, 1989) (Bikeways), available at http://www.dot.ca.gov/ser/ voll/secl/chlfedlaw/4policy.txt). In a policy paper, the Federal Highway Administration (FELA) advised local officials that when a bikeway “is primarily for transportation and is an integral part of the local transportation system,” Section 4(f) does not apply. Bikeways, supra, § 13.

¶6 Applying this standard, WSDOT determined that the 1-90 trail was primarily for transportation. In its discussion of the trail’s history, the evaluation underscores that the trail was built “as part of a multi-modal transportation facility, using federal and state highway funds. No funds designated for recreational facilities were used in constructing the path and separate accounts were used to ensure the separation of recreational and transportation funds.” Clerk’s Papers (CP) at 749. Although the trail is also used by pedestrians and others, it “[wa]s designed and built primarily for use by bicycles.” Id. While the WSDOT recognized “the path can be used for recreational purposes,” it perceived these uses to be minimal and fairly insignificant in comparison to its transportation function. See id. Indeed, WSDOT noted the trail serves as “the only means for non-motorized access to Mercer Island and across Lake Washington” and thus “is an important link in the regional transportation system.” Id.

¶7 In accordance with these considerations, WSDOT concluded that because the trail was neither a public park nor recreation land for purposes of federal law, it was not a Section 4(f) resource. Id. The FHA found this determination reasonable, and concurred that — at least with respect to the portion over the Homer Hadley floating bridge — the primary use is transportation.

B. Transfer of the 1-90 Bicycle Trail to Mercer Island

¶8 Shortly after construction, WSDOT arranged to cede ownership of the portion of the trail running over Mercer Island. In 1987, the City and WSDOT entered into the “1-90 Turnback and Landscape Maintenance Agreement.” CP at 508. This agreement refers to the first phase in a process whereby certain roadways and rights-of-way would be transferred from WSDOT to the City. Id. During this first phase WSDOT agreed to pay the City to maintain and landscape these transit facilities. Id.

¶9 In 1991, the City created a document entitled “City of Mercer Island Comprehensive Park, Recreation, Open Space, Arts and Trails Plan.” CP at 175. Within this document the “1-90 Trail and Linear Park” are described as follows:

Primarily located along the north side of 1-90, a multi-purpose pedestrian/bicycle regional trail will connect the East Channel and Floating bridges in 1992.... In total, there will be 8 miles of trails in the corridor. Both sides of 1-90 and portions of the lids and overpasses will be heavily landscaped, and used as park lands. The linear park includes 90.5 acres along the freeway. The major portion of this park will buffer the Central Business District from the freeway.

CP at 178 (emphasis added).

¶10 On April 1, 2000, WSDOT conveyed to the City a portion of the trail, including the spot where Camicia was injured. The quitclaim deed provided:

It is understood and agreed that the . . . property is transferred for road/street purposes only, and no other use shall be made of said property without obtaining prior written approval of the grantor. It is also understood and agreed that the grantee, its successors or assigns, shall not revise either the right of way lines or the access control without prior written approval from the grantor, its successors or assigns.

CP at 624 (emphasis added).

¶11 Despite this language, the City contends it understood the trail to be primarily recreational in nature. It points to a local ordinance prohibiting adult entertainment facilities near the trail while allowing such facilities near other public streets. Additionally, the city parks department maintains the 1-90 Trail and Linear Park, while city streets are maintained by a separate department.

C. Camicia’s Injury and Subsequent Proceedings

¶12 At the time of Camicia’s accident, Sound Transit had retained Howard S. Wright Construction Company as the general contractor for a construction project at the South Transit Mercer Island Park & Ride facility. To prevent public access during construction, the contractor installed a chain link fence around the perimeter of the site. Some of the fence footing at this site protruded onto the 1-90 bicycle trail where North Mercer Way intersects 81st Avenue Southeast.

¶13 The day of her accident, Camicia was bicycling along the 1-90 trail as she approached this intersection. She veered left to avoid the fence footing to her right. She looked up just in time to see the wooden post, immediately hit it, and was thrown from her bike. As a result of her fall, Camicia suffered serious injuries that rendered her paralyzed.

¶14 Camicia brought suit against the City and the construction company in King County Superior Court.³ CP at 1-8. The City moved for summary judgment, asserting immunity under Washington’s recreational use immunity statute, RCW 4.24.210. Under this statute, “public or private landowners or others in lawful possession and control of any lands” who allow the public “to use them for the purposes of outdoor recreation,” without charging a fee, are immune from liability for unintentional injuries to such users. RCW 4.24.210(1).

¶15 Camicia argued immunity does not apply because the City failed to show that (1) it owned the trail, (2) it had the legal authority to open or close its portion of the trail, and (3) immunity otherwise applied to the trail, which Camicia characterized as a “regional public transportation route.” CP at 303.

¶16 A hearing on the motion was held before Judge Douglas McBroom. The hearing transcript reflects that the court was troubled by the City’s position that any recreational use on the trail, no matter how insignificant, would immunize the City. Following the hearing on the motion, the court denied the City’s motion without prejudice. The court held that issues of fact remained as to the ownership and control of the trail and whether the trail was sufficiently recreational in nature for immunity to attach.

¶17 Meanwhile, the City surveyed the accident site to determine ownership. The case was transferred to Judge Laura Inveen, and the City renewed its motion for summary judgment, again asserting immunity under RCW 4.24.210. In support of its motion, the City submitted the quitclaim deed from WSDOT to Mercer Island, the survey, and supplemental declarations from City Engineer Yamashita and its CR 30(b)(6) agent.

¶18 The court ruled that the City had established its ownership of the accident site. It rejected Camicia’s argument that the trail’s function as a transportation route affected the immunity inquiry. CP at 865 (“Although [the 1-90 bicycle trail] is the only means of non-motorized travel across the water of Lake Washington, bicycle commuters are quite able to use Mercer Island surface roads to traverse the north end of the island. Furthermore, no legal authority is offered for exempting‘regional transportation routes’, nor for requiring the property to be a ‘recreational facility’ for immunity to apply.”). The court granted summary judgment in the City’s favor, and Camicia appealed.

¶19 The Court of Appeals reversed, agreeing with Judge McBroom that disputed factual issues precluded summary judgment. Camicia v. Howard S. Wright Constr. Co., noted at 158 Wn. App. 1029 (2010). The court noted that the quitclaim deed expressly transferred the property to the City “ ‘for road/street purposes only’ ” and that any other use required the grantor’s advance written approval. Camicia, slip op. at 11. Moreover, evidence suggested that the predecessor in interest, WSDOT, had viewed the trail as a transportation facility. See id. at 12. Because the public purpose of the trail was disputed, the court held summary judgment was improper and remanded for trial.

¶20 The City petitioned for review, which we granted at 171 Wn.2d 1027, 257 P.3d 664 (2011).

STANDARD OF REVIEW

¶21 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review a grant of summary judgment de novo. Campbell v. Ticor Title Ins. Co., 166 Wn.2d 466, 470, 209 P.3d 859 (2009). When the facts are undisputed, immunity is a question of law for the court. See Beebe v. Moses, 113 Wn. App. 464, 467, 54 P.3d 188 (2002) (noting that invitee status is question of law where facts are undisputed); Botka v. Estate of Hoerr, 105 Wn. App. 974, 983, 21 P.3d 723 (2001) (noting that invitee status “can be implied from the prior conduct and statements of the property possessors or their agents”). But where material facts are disputed, a trial is needed to resolve the issue.⁴

¶22 Because recreational use immunity is an affirmative defense, the landowner asserting it carries the burden of proving entitlement to immunity under the statute. See Olpinski v. Clement, 73 Wn.2d 944, 950, 442 P.2d 260 (1968).

¶23 In construing a statute, our “fundamental objective ... is to ascertain and carry out the intent of the legislature.” State v. Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012). “We determine the intent of the legislature primarily from the statutory language.” Id. (citing Lacey Nursing Ctr., Inc. v. Dep’t of Revenue, 128 Wn.2d 40, 53, 905 P.2d 338 (1995)). While legislative intent cannot overcome “an otherwise discernible, plain meaning” on the face of the statute, we must interpret the terms of a statute in harmony with its purpose. N. Coast Air Servs., Ltd. v. Grumman Corp., 111 Wn.2d 315, 321, 759 P.2d 405 (1988).

ANALYSIS

¶24 Washington’s former recreational use immunity statute, RCW 4.24.210(1), provides in pertinent part:

[A]ny public or private landowners or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which terms includes, but is not limited to, . . . hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, hang[ Igliding, paragliding, rock climbing, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, nature study, winter or water sports, viewing or enjoying historical, archeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

(Emphasis added.)

¶25 The recreational use immunity statute creates an exception to Washington’s premise liability law regarding public invitees. At common law, a landowner’s duty depended on the plaintiff’s status as an invitee, a licensee, or a trespasser. Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). While Washington traditionally recognized only business invitees, we broadened the invitee classification in 1966 to include the “ ‘public invitee,’ ” defined as one “ ‘invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.’ ” McKinnon v. Wash. Fed. Sav. & Loan Ass’n, 68 Wn.2d 644, 650-51, 414 P.2d 773 (1966) (rejecting economic benefit test as sole criterion defining “invitee” and adopting and quoting the broader definition from Restatement (Second) of Torts § 332 (1965)).

¶26 In broadening the category of invitee in 1966, we followed a national trend of courts providing greater protection to the public when welcomed onto another’s land. Compare Restatement of Torts § 332 (1934) (defining “invitee” only in terms of a business visitor), with Restatement (Second) of Torts § 332 (1965) (adding the classification “public invitee”). At the same time, in accord with other state legislatures, our legislature counterbalanced this expansion by enacting laws limiting landowner liability where public recreational interests were at stake. See RCW 4.24.210; see also John C. Barrett, Good Sports and Bad Lands: The Application of Washington’s Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1, 2 (1977); and see 62 Am. Jur. 2d Premises Liability § 127 (2005) (noting that states sought “to reduce the growing tendency of landowners to withdraw land from recreational access by removing the risk of gratuitous tort liability”).

¶27 Washington enacted RCW 4.24.210 in 1967 to immunize landowners who allow members of the public to use certain lands “for the purposes of outdoor recreation” from liability for most injuries. Laws of 1967, ch. 216, § 2. In doing so, the legislature carved out an exception to the common law “public purpose” invitee doctrine by exempting a particular “public purpose” — outdoor recreation. The legislature expressly intended that the statute would “encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon.” RCW 4.24.200 (statement of purpose).

¶28 Thus, “to be immune under RCW 4.24.210(1) the landowner must establish that the [land in question] (1) was open to members of the public (2) for recreational purposes and [that] (3) no fee of any kind was charged.” Cregan v. Fourth Mem’l Church, 175 Wn.2d 279, 284, 285 P.3d 860 (2012). Because the City did not charge the public a fee for using the 1-90 trail,⁵ the only question is whether genuine issues of material fact exist as to whether the trail was open for recreational purposes.

I. A landowner cannot “open” land that is already open to the public and that the landowner lacks authority to close

¶29 The recreational immunity statute applies only to those landowners with “lawful possession and control” over land who “allow members of the public” to use it “for the purposes of outdoor recreation.” RCW 4.24.210(1). A landowner has “lawful possession and control” over land if it holds “continuing authority to determine whether the land should be open to the public.” Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550, 557-58, 872 P.2d 524 (1994) (holding contractors could not claim recreational immunity because they “had no continuing authority to determine whether the land should be open to the public”). Absent that authority, a landowner cannot assert recreational immunity. A landowner must have authority to close the land to the recreating public because extending recreational immunity to landowners who lack authority to close the land to the public “would not further the purpose behind the act,” namely to encourage landowners to open land that would not otherwise be open Id. at 558; see RCW 4.24.200.

¶30 Viewed in the light most favorable to Camicia, the evidence gives rise to a material question of fact about the City’s authority to close the trail to public transportation. WSDOT conveyed the land under a deed that limits its use to “road/street purposes only” absent “prior written approval of the grantor.” CP at 624. In addition, the FHA’s Section 4(f) determination and the WSDOT’s supporting documents indicate that the 1-90 trail is part of a multimodal transportation facility.

II. Land must be opened for the purpose of recreation

¶31 Immunity applies only when a landowner allows the public to use the land “for the purposes of outdoor recreation.” RCW 4.24.210 (emphasis added). This reading is in accordance with the statute’s plain language and the legislature’s stated purpose to “encourage” land possessors to make their land “available to the public for recreational purposes by limiting their liability.” RCW 4.24.200. Where land is open to the public for some other public purpose — for example as part of a public transportation corridor — the inducement of recreational use immunity is unnecessary. It would make little sense to provide immunity on the basis of recreational use when the land would be held open to the public even in the absence of that use.

¶32 We reject the City’s view that recreational immunity follows from the mere presence of incidental recreational use of land that is open to the public. See Gaeta v. Seattle City Light, 54 Wn. App. 603, 608, 774 P.2d 1255 (1989) (distinguishing between a road “built and maintained primarily for commercial use,” which could not benefit from recreational use immunity, and the one at issue, which was “not a thoroughfare” but instead led only to land “left open ... to the public for recreational use”). In support of its view, the City cites to several cases that do not address the question presented here. In McCarver v. Manson Park & Recreation District, 92 Wn.2d 370, 597 P.2d 1362 (1979), it was undisputed that the public was allowed to enter for a recreational purpose (indeed, that was the only public purpose for the land). Likewise, the public license to recreate was clear in Widman v. Johnson, 81 Wn. App. 110, 111-12, 912 P.2d 1095 (1996), where a private company opened its forest land to the public exclusively for recreational purposes and posted signs stating, “ ‘The Forest Land Behind This Sign Is Open For RECREATIONAL USE ONLY5 ” on “ ‘virtually all entrances to its logging roads.’ ” That the logging roads could be used for nonrecreational uses, such as a driving shortcut by the nonrecreating public, did not change the fact that “[e]very reasonable person would also believe that [the company] had opened the [roads] for recreational use.” Id. at 114; see also Gaeta, 54 Wn. App. at 607 (holding that so long as Seattle City Light opened up the Diablo Dam to the public for recreation, immunity applied despite a contractual provision compelling it to open land for public recreational purposes).

¶33 In Chamberlain v. Department of Transportation, 79 Wn. App. 212, 214, 901 P.2d 344 (1995), recreational use immunity shielded the State from the claims asserted after a boy was killed on the Deception Pass Bridge overlook, but the nature of the land was not at issue. It was undisputed in Chamberlain that the overlook was recreational in nature and that viewing scenery was an outdoor recreational activity. See id. at 216; RCW 4.24.210 (defining “outdoor recreation” to include “viewing or enjoying . . . scenic [sites]”).

¶34 Finally, the City cites Riksem v. City of Seattle, 47 Wn. App. 506, 508, 736 P.2d 275 (1987), a case arising out of injuries sustained by a bicyclist along the Burke-Gilman Trail in Seattle. The Court of Appeals in that case held that recreational use immunity applied, rejecting the plaintiff’s claims premised on public policy and a constitutional equal protection claim. Id. at 511-13. Significantly, Riksem did not dispute that the trail was open to the public for the purposes of outdoor recreation or that he was a recreational user. Accordingly, the court did not address whether immunity would apply on land that was open to the public for nonrecreational purposes. It did, however, recognize that “[t]he manifest object of the recreational use statute is to provide free recreational areas to the public on land and in water areas that might not otherwise be open to the public” Id. at 511 (emphasis added).

¶35 Extending the reach of RCW 4.24.210 to land that is open to the public for purposes other than recreation simply because some recreational use occurs not only undermines the statute’s plain language and the legislature’s intent but would also unjustly relieve the government of its common-law duty to maintain roadways in a condition reasonably safe for ordinary travel. See Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002); see generally Berglund v. Spokane County, 4 Wn.2d 309, 313-14, 103 P.2d 355 (1940) (collecting cases). Recreational immunity would conceivably extend to every street and sidewalk in downtown Seattle, as these are open to the public without charge. Indeed, many streets and roads present some opportunity for “viewing or enjoying historical . . . sites,” another recreational purpose under the statute. RCW 4.24.210(1). It would be absurd if Seattle could assert recreational use immunity for injury to a visitor to Pioneer Square simply because tourists are permitted to enter it without charge to view “scenic . . . sites.” See id. We avoid any reading of the statute that would result in unlikely, absurd, or strained consequences. State v. Neher, 112 Wn.2d 347, 351, 771 P.2d 330 (1989). Erasing this long-standing duty was obviously not the purpose of the recreational immunity statute.

¶36 On the record in this case, we conclude that reasonable minds could differ whether the 1-90 trail was opened for the purpose of recreational use. It is not enough for the City to show that the 1-90 trail was opened for bicycling. Even though bicycling is mentioned in RCW 4.24.210, bicycling is not necessarily a recreational activity. We have recognized its dual status under our laws. Pudmaroff v. Allen, 138 Wn.2d 55, 63 n.3, 977 P.2d 574 (1999) (“Bicyclists enjoy an anomalous place in the traffic safety laws of Washington. . . . Statutes variously treat bicycles and bike paths in a recreational context, and at other times the statutes treat them as part of the transportation system. These statutes indicate the Legislature has viewed bicycles and paths on a case by case basis, and without any continuity.” (citations omitted)). That these purposes can be distinct is evidenced by RCW 35.75.060, under which certain funds may be expended on bicycle paths on the condition that the paths “shall be suitable for bicycle transportation purposes and not solely for recreation purposes.” Thus, proof that land is opened for bicycling is not proof that it is opened for recreational purposes.

¶37 The City’s treatment of the 1-90 bicycle trail as part of its park system is certainly relevant. A fact finder could credit the City’s evidence and find that the City’s portion of the trail serves recreational purposes rather than transportation purposes. On the other hand, there is evidence that WSDOT determined the “major purpose” of the trail is transportation, finding it was built “as part of a multi-modal transportation facility, using federal and state highway funds.” CP at 749. The trail serves as “the only means for non-motorized access to Mercer Island and across Lake Washington” and thus “is an important link in the regional transportation system.” Id. Furthermore, “[n]o funds designated for recreational facilities were used in constructing the path and separate accounts were used to ensure the separation of recreational and transportation funds.” Id. While it recognized that “the path can be used for recreational purposes,” WSDOT perceived these uses to be minimal and fairly insignificant in comparison to its transportation function. See id.

¶38 Furthermore, viewed in the light most favorable to Camicia, the deed conveying portions of the trail to the City suggests the City lacks the ability to close the trail to transportation. A fact finder could reasonably infer that the 1-90 trail would be open to public bicycling for transportation purposes regardless of any recreational use or function and that the public invitation was therefore not “for the purposes of outdoor recreation.”⁶

¶39 In short, genuine issues of fact remain. Because the evidence relating to the application of recreational use immunity conflicts on material points, the facts must be determined by the fact finder, and summary judgment is precluded.

III. A landowner’s recreational use immunity does not depend on the plaintiff’s activity at the time of injury

¶40 As a final note, there is some suggestion that the application of recreational use immunity turns on whether Camicia was cycling home from work or merely for pleasure when she was injured. We reject this view as insufficiently protective of landowners who open their land for recreational purposes. Where the land at issue is shown to be recreational, immunity does not depend on whether the plaintiff was actually engaged in recreation at the time of injury. See Gaeta, 54 Wn. App. at 609 (holding that whether the public invitee “may have some commercial purpose in mind” was irrelevant to recreational immunity; instead, “[b]y opening up the lands for recreational use without a fee,” the landowner “brought itself under the protection of the immunity statute”); Howard v. United States, 181 F.3d 1064,1072-73 (9th Cir. 1999) (holding that “the proper focus is on the landowner’s intent” and not the injured invitee’s (citing Gaeta, 54 Wn. App. at 608-09)). Washington’s recreational use immunity statute modifies the legal duty owed to public invitees by permitting landowners to invite the public onto the land for the “public purpose” of recreation. Rather than owing these invitees a duty of ordinary care, a landowner owes them only a duty to warn of “known dangerous artificial latent condition [s].” RCW 4.24.210(4)(a).

¶41 Distinguishing between recreating and nonrecreating users would strip Washington landowners of their statutory protection by hinging recreational immunity on the one factor not mentioned in the statute and over which a landowner has no control: the intent of a public invitee. Because landowners cannot tell the private intentions of one invitee from another, they cannot keep those engaging in permitted activities but for nonrecreational reasons off the land and, therefore, cannot limit their liability. A rational landowner faced with such a rule would have every incentive to close the land to the public entirely. This is especially true because the landowner would be forced to take all the same precautions to safeguard the land opened up for public recreation as would apply in the absence of RCW 4.24.210, since he would still owe a greater duty of care to those who enter but are not recreating. The legislature plainly intended statutory immunity to apply based not on the intent of the public invitee, but on the landowner’s action in opening land to the public for recreation.

CONCLUSION

¶42 To establish entitlement to recreational use immunity, the City must prove its portion of the 1-90 trail is open to the public for outdoor recreation. Whether the City allowed the public to use the trail for purposes of outdoor recreation is a contested factual issue. Because the trier of fact could find that the 1-90 trail is open for the public purpose of transportation rather than recreational use, the Court of Appeals correctly held the City was not entitled to summary judgment in its favor. We affirm.

C. Johnson, Owens, Fairhurst, and Wiggins, JJ., concur.

1 All references to RCW 4.24.210 herein are to the former version as it was the statute in effect at the time of Camicia’s injury in 2006.

2 The requirements of Section 4(f) are presently codified at 23 U.S.C. § 138 and 49 U.S.C. § 303. These requirements were “originally enacted as Section 4(f) of the Department of Transportation Act of 1966 and are still commonly referred to as ‘Section 4(f).’ ” 23 C.F.R. § 774.1.

3 The claims against the construction company have been stayed by stipulation during the pendency of this appeal.

4 Amicus curiae Washington State Association of Municipal Attorneys (WSAMA) argues that making immunity á “ ‘question of fact’ is tantamount to no immunity at all.” Br. of Amicus Curiae WSAMA at 5. In general, whether immunity applies to a certain set of facts is a legal question. But when material facts are disputed, as here, a court may not determine its applicability as a matter of law. See Goodman v. Goodman, 128 Wn.2d 366, 373, 907 P.2d 290 (1995) (“Whether the statute of limitations bars a suit is a legal question, but the jury must decide the underlying factual questions unless the facts are susceptible of but one reasonable interpretation.”); Staats v. Brown, 139 Wn.2d 757, 764, 991 P.2d 615 (2000) (noting that claims of state law immunity “are subject to the ordinary summary judgment standard which requires all facts and inferences to be construed most favorably to the nonmoving party” (citing CR 56)).

5 Camicia submitted a 1987 document titled “1-90 Turnback and Landscape Maintenance Agreement.” CP at 508. The document reflects that the City charged an annual fee totaling $68,000 to WSDOT for its “street and landscape maintenance and operation” of the 1-90 trail on Mercer Island. Id. Camicia argues this arrangement precludes immunity because the statute does not apply when a land possessor charges a fee. Suppl. Br. of Resp’t Camicia at 12 (citing RCW 4.24.210). This argument misreads RCW 4.24.210. The only reasonable reading of the statute is that an immunity-precluding fee is one charged to the recreating public using the land. See Plano v. City of Renton, 103 Wn. App. 910, 913, 14 P.3d 871 (2000) (“The question under Washington’s statute ... is whether Renton charges a ‘fee of any kind’ for using the moorage.” (quoting RCW 4.24.210(1))). The operating fee charged to WSDOT does not preclude immunity.

6 As a procedural matter, the City contends the Court of Appeals should not have considered the language in the quitclaim deed — explicitly reserving the bike trail for “road/street purposes only” — for two reasons: first, appellate courts should reach only legal issues on appeal, and second, the court was required to provide notice under BAP 12.1 because the parties had not previously discussed the deed’s language.

The City mischaracterizes the decision as one of fact. Whether evidence viewed in the light most favorable to the nonmoving party shows the absence of a genuine issue of material fact is a legal question. Nor did the court violate RAP 12.1, which allows — but does not require — the appellate court to notify the parties and allow supplemental briefing on an issue not discussed by the parties. Because the City submitted the deed in support of its motion for summary judgment, it should have expected the court to evaluate it in determining whether material factual issues remained. At any rate, because the City bore the burden of “showing” that there was no genuine issue of material fact, the court on de novo review properly considered all the evidence submitted. CR 56; RAP 9.12.