John Hively v. Port Of Skamania County ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
February 23, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JOHN A. HIVELY, No. 46875-1-II
Appellant, UNPUBLISHED OPINION
v.
PORT OF SKAMANIA COUNTY,
WASHINGTON, a Washington municipal
corporation,
Respondent.
SUTTON, J. — John A. Hively appeals the trial court’ s order granting summary judgment,
denying reconsideration, and dismissing his negligence claim against the Port of Skamania County
the Port) for injuries caused by his fall in one of the Port’ s parks, Teo Park. Hively argues that
the trial court erred in ruling that the Port is entitled to immunity under the recreational use statute,
former RCW 4.24.210(1) (2009), 1 because material issues of fact exist as to whether the place that
he fell was sufficiently attenuated from the fee-generating areas of the Port’ s properties and
whether there was a latent condition. Because we disagree, we affirm the trial court’ s order
granting summary judgment and dismissal.
FACTS
Hively traveled to Teo Park in Stevenson, Washington, a property owned by the Port on
the Columbia River waterfront. Teo Park is physically connected to two other Port properties,
1
RCW 4.24.210 was amended in 2011 and 2012, although those changes do not have any effect
on our analysis.
No. 46875-1-II
Bob’ s Beach and Stevenson Landing, by an asphalt path. There is a restroom along this path,
which has a second path that is not at issue here that also provides access to the restroom.
Hively headed down the asphalt path, which was shaded by trees. After a few steps, Hively
tripped and fell onto the path, injuring himself. In his deposition testimony, Hively stated that
when he fell he was looking straight ahead, and he did not see the pothole due to a shadowed area
created by the bright sun. Hively expected that the path would be hazard -free, and before he fell
he did not notice any potholes or irregularities on the path.
The Port does not charge a fee to enter Teo Park, Bob’ s Beach, or Stevenson Landing, and
they are open to the public. The restroom is also open to the public, except during the winter
season when it is closed. Occasionally, the Port rents Teo Park to private parties for a fee, but the
path along the waterfront and the restroom remain open to the public while the park is rented. The
Port also charges cruise ships a fee to dock at the pier at Stevenson Landing, but again the pier
remains accessible to the public without a fee even when ships are docked there.
The path along the waterfront on the way to the restroom, where Hively fell, was paved
with asphalt in 1997, but over time the surface of the path had become broken and irregular. The
Port knew about the condition of the path, but did not consider it to be dangerous because the
irregularities were “open and obvious and consistent with other rough or natural trails on Port park
property.” Clerk’ s Papers at 54 ( CP). Prior to Hively’ s fall, the Port had not installed signs
warning of the path’ s conditions. Hively’ s lawsuit was the first time the Port had heard of a person
tripping on this particular path.
Hively sued the Port for negligence. The Port moved for summary judgment, arguing that
it was entitled to recreational use immunity under former RCW 4.24.210. Hively cross-moved for
summary judgment. The trial court granted the Port’ s motion for summary judgment, denied
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Hively’ s motion, dismissed Hively’ s claim with prejudice, and denied Hively’s motion for
reconsideration. Hively appealed.
ANALYSIS
I. STANDARD OF REVIEW
We review a trial court’ s grant of summary judgment de novo and engage in the same
inquiry as the trial court. Wash. Fed. v. Harvey, 182 Wash. 2d 335, 339, 340 P.3d 846 ( 2015).
Summary judgment is proper where, viewing the facts in the light most favorable to the nonmoving
party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” CR 56(c). When the supporting facts are
undisputed, the trial court may determine immunity as a question of law. Camicia v. Howard S.
Wright Constr. Co., 179 Wash. 2d 684, 693, 317 P.3d 987 (2014). We review a trial court’ s ruling
on a motion for reconsideration for abuse of discretion. Landstar Inway, Inc. v. Samrow, 181 Wn.
App. 109, 120, 325 P.3d 327 (2014).
II. RECREATIONAL USE IMMUNITY
Hively argues that the Port is not entitled to summary judgment because the Port is not
immune from suit under the recreational use immunity statute, former RCW 4.24.210. We
disagree.
Under former RCW 4.24.210, landowners who allow the public to use their land for
recreational purposes without charging a fee are immune from suit for unintentional injuries that
occur on the land. Former RCW 4.24.210(1) creates an exception to common law invitee premises
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No. 46875-1-II
liability.2 Camicia, 179 Wash. 2d at 694. The purpose of recreational use immunity is to encourage
landowners and those in lawful possession of land to make it available to the public for recreational
purposes by limiting their liability. RCW 4.24.200; Jewels v. City of Bellingham, 183 Wash. 2d 388,
394, 353 P.3d 204 (2015).
To be entitled to immunity under the recreational use statute, the landowner must prove
that the land in question is (1) open to members of the public, (2) for recreational purposes, and
3) for which “‘ no fee of any kind [is] charged.’” Camicia, 179 Wash. 2d at 695-96 (quoting Cregan
v. Fourth Mem’ l Church, 175 Wash. 2d 279, 284, 285 P.3d 860 (2010)). The landowner bears the
burden to prove entitlement to immunity because recreational use is an affirmative defense.
Camicia, 179 Wash. 2d at 693. Hively concedes that the Port meets the first and second elements,
but argues that the Port fails to meet the third element because the Port charges a fee to cruise ships
to dock at Stevenson Landing and to parties who wish to exclusively rent Teo Park.
A landowner may charge a fee to use part of its land and maintain immunity for recreational
use of the remainder of the land. Plano v. City of Renton, 103 Wash. App. 910, 914, 14 P.3d 871
2000). To maintain recreational use immunity and charge a fee, “[ a] landowner must only show
that it charges no fee for using the land or water area where the injury occurred.” Plano, 103 Wn.
App. at 915. A landowner is not entitled to immunity when the place that the injury occurred is a
necessary and integral part” of the fee-generating area. Plano, 103 Wash. App. at 915. It is
2
Any public or private landowners or others in lawful possession and control of 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, including but not limited to camping, picnicking,
swimming, hiking, bicycling, or viewing or enjoying scenic sites without charging a fee of any
kind, shall not be liable for unintentional injuries to such users. See former RCW 4.24.210(1)
emphasis added).
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undisputed that the Port does not charge a fee for public use of either the path where Hively fell or
the restroom to which the path led.
Hively relies on Plano to argue that the path where he fell was a necessary and integral part
of the Port’ s fee-generating areas ( i.e., the pier and Teo Park itself when it is rented exclusively)
as a matter of law. In Plano, anyone who used the dock, the fee-generating area in that case, was
required to use one of two connecting ramps that led to the dock where Plano’ s injury occurred.
Plano, 103 Wash. App. at 915. The ramps had been built specifically to provide access to the dock
and a paying patron could not pay the required fee without walking up one of the ramps. Plano,
103 Wash. App. at 915. Thus, the Plano court held that the undisputed facts established that the
ramps were a necessary and integral part of the dock and the City of Renton was not entitled to
immunity when a non-paying user injured herself on one of them. Plano, 103 Wash. App. at 915.
The facts of this case are not analogous to Plano. A person is not required to pay for or
use either the path or the restroom as a part of any paid access for or use of either Teo Park or the
pier. Hively concedes that it is unnecessary for a person to reach the restroom by walking on the
path where he fell because another path also provides access to the restroom from the pier. No
evidence suggests that the path where Hively’ s injury occurred was constructed specifically for
the purpose of providing access to the Port’ s fee-generating areas. While John McSherry, the
executive director of the Port, agreed that the restroom is “a key part” of Teo Park and that it is an
important part of all of the recreation activities that occur on the waterfront,” this fact is
undisputed and thus the trial court could determine the issue of immunity as a matter of law.
CP at 111, 204. Therefore, following the reasoning of Plano, there is no genuine issue of material
fact that the path or the restroom were an integral part of the Port’ s fee-generating areas and the
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No. 46875-1-II
trial court properly granted summary judgment to the Port under former RCW 4.24.210.3
Necessarily, the trial court also properly denied Hively’s motion for reconsideration.
III. LATENT CONDITION
Hively also argues that the trial court improperly granted summary judgment in favor of
the Port because a question of fact remained on whether the condition of the path where Hively
fell was latent. We disagree.
Nothing in [former RCW 4.24.210] shall prevent the liability of a landowner or others in
lawful possession and control for injuries sustained to users by reason of a known dangerous
artificial latent condition for which warning signs have not been conspicuously posted.” Former
RCW 4.24.210(4)(a). Our Supreme Court also recently clarified that for a plaintiff to hold a
landowner liable under former RCW 4.24.210(4)(a), the condition must satisfy a known,
dangerous, artificial, and latent condition and that each of these four adjectives “ modify the noun
condition] independent of one another.” Jewels, 183 Wash. 2d at 397 (citing Van Dinter v. City of
Kennewick, 121 Wash. 2d 38, 45 n.2, 846 P.2d 522 (1993)). Thus, the landowner owes a duty to
public invitees to warn of latent conditions even if the landowner is entitled to immunity for
recreational use. Camicia, 179 Wash. 2d at 702. While the Port knew that the surface of the path
had become irregular and “ consistent with other rough or natural trails on Port park property,” this
lawsuit was the first time that the Port had any knowledge of a person tripping on this path.
CP at 54.
3
While the trial court stated, “ My finding is that the restroom can be reached by other access
routes. And . . . the path does not exist to provide access to the pier or park,” contrary to Hively’ s
argument, the use of the word “ finding” does not transform an issue of law into an issue of fact.
Verbatim Report of Proceedings at 10-11. Furthermore, to the extent the trial court actually made
a finding of fact by using that word, Hively did not object, and therefore he has waived that issue.
RAP 2.5(a).
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No. 46875-1-II
A condition is latent when it is not readily-apparent to the recreational user of the land.
Jewels, 183 Wash. 2d at 398. Whether the plaintiff noticed the condition is irrelevant to this objective
inquiry. Jewels, 183 Wash. 2d at 398 (what one particular recreational user sees “‘ is immaterial’”)
quoting Widman v. Johnson, 81 Wash. App. 110, 114-15, 912 P.2d 1095 (1996)). Instead, we ask
whether the condition is readily apparent to the general class of recreational users.” Jewels,
183 Wash. 2d at 398. We focus on whether the condition itself is readily apparent to recreational
users, rather than the “ specific risk” that the condition poses. Ravenscroft v. Water Power Co.,
136 Wash. 2d 911, 925, 969 P.2d 75 (1998). We analyze the condition in the context of other factors
and not the condition in isolation. Cultee v. City of Tacoma, 95 Wash. App. 505, 516-17,
977 P.2d 15 (1999).
Hively cites Ravenscroft and Cultee to support his argument that the issue of latency is a
genuine issue of material fact here. But in Ravenscroft the injury-causing condition, submerged
stumps covered by water that concealed them, created a genuine issue of fact on whether the
condition was latent.4 Ravenscroft, 136 Wash. 2d at 925-26. Similarly, in Cultee, the injury-causing
condition, the muddy water on the road hiding the eroded edge and the steep drop off into the deep
adjacent water, was not readily apparent.5 Cultee, 95 Wash. App. at 522. Thus, neither the
Ravenscroft court nor the Cultee court could say that the condition was obvious as a matter of law.
4
The submerged stumps near the middle of the channel were not obvious or visible as a matter of
law when the driver of a boat saw no floating debris or stumps of any kind in the water and there
was no indication of the presence of any submerged objects or hazards in the direction he was
traveling. Ravenscroft, 136 Wash. 2d at 916. Further, other witnesses filed affidavits that they had
seen others come into contact with the submerged condition, which indicated that they were not
readily apparent. Ravenscroft, 136 Wash. 2d at 925.
5
Cultee also presented a genuine issue of material fact regarding precisely what condition led to
the plaintiff’ s death. Cultee, 95 Wash. App. at 523. This issue was central to the appellate court’ s
holding that summary judgment was improper based on the latency question. No such question
exists in this case.
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No. 46875-1-II
No such analogous facts exist in this case. Hively testified that he did not see the pothole
when he was looking straight ahead as he walked, and he was not expecting a hazard to be on the
path. But, unlike the plaintiffs in Ravenscroft and Cultee, Hively did not present any evidence that
the pothole was not readily apparent to the general class of recreational users. No evidence
suggests that the pothole was physically submerged, as in Ravenscroft, or otherwise covered or
hidden, as in Cultee. Thus, there is no genuine issue of material fact regarding latency in this case.
Therefore, the trial court properly granted summary judgment in favor of the Port and properly
denied Hively’ s motion for reconsideration.
CONCLUSION
We hold that the trial court properly granted summary judgment to the Port because no
genuine issue of material fact existed on whether the Port was entitled to immunity or whether the
pothole was a latent condition. Therefore, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
BJORGEN, A.C.J.
MELNICK, J.
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