Wendy Dickie, V State Parks And Recreation Commission

Filed
Washington State
Court of Appeals
Division Two
December 22, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
WENDY DICKIE, No. 47192-2-II
Appellant,
v.
WASHINGTON STATE PARKS AND UNPUBLISHED OPINION
RECREATION COMMISSION, a public
body,
Respondent.
WORSWICK, J. — Wendy Dickie appeals the superior court’s summary dismissal of her
claim against the Washington State Parks and Recreation Commission (State Parks) for injuries
she sustained after she slipped and fell on a wet, wooden ramp at Cape Disappointment State
Park. State Parks moved for summary judgment asserting that RCW 4.24.210(4)(a) immunized
the State of Washington from tort liability for Dickie’s injuries because the injury-causing
condition was not latent. Dickie argues the court erred by granting State Parks’ summary
judgment motion because a genuine issue of material fact exists as to whether the injury-causing
condition was latent. We affirm.
FACTS
In November, 2010, Dickie visited Cape Disappointment State Park. The park is located
near the beach in Ilwaco, Washington. On the day that Dickie visited the park it was drizzling,
overcast, and wet. Dickie looked at a yurt1 that was built on an elevated wooden deck. A
1
A yurt is a tent-like structure made available to park visitors.
No. 47192-2-II
wooden ramp provided access to and from the structure. As Dickie descended down the ramp
she slipped and fell, landing on her knee and sustaining a fracture.
State Parks had not posted any signs warning park visitors that the ramp may be slippery.
A State Parks employee testified that the deck did not look dangerous to him after he arrived
following Dickie’s accident. After Dickie’s fall, State Parks cleaned and treated the ramp and
installed traction pads.
On October 30, 2013, Dickie brought suit against State Parks for damages related to her
injury. State Parks moved for summary judgment, asserting that because the injury-causing
condition was not latent, State Parks was immune from liability under RCW 4.24.210(4)(a). The
superior court agreed and granted State Parks’ motion for summary judgment. Dickie appeals.
ANALYSIS
I. STANDARD OF REVIEW
We review a summary judgment order de novo, and we perform the same inquiry as the
trial court. Kofmehl v. Baseline Lake, LLC, 177 Wash. 2d 584, 594, 305 P.3d 230 (2013).
Summary judgment is appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. CR 56(c). As the moving party, State Parks
bears the initial burden of showing the absence of an issue of material fact. Kofmehl, 177 Wash. 2d
at 594. The burden then shifts to Dickie to set forth specific facts establishing that there is a
genuine issue of material fact for trial. Young v. Key Pharms., Inc., 112 Wash. 2d 216, 225, 770
P.2d 182 (1989). A motion for summary judgment accepts all facts and reasonable inferences in
the light most favorable to the nonmoving party. Kofmehl, 177 Wash. 2d at 594. Considering the
facts in the light most favorable to the nonmoving party, the motion for summary judgment
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No. 47192-2-II
should be granted only if, from all the evidence, reasonable persons could reach but one
conclusion. Failla v. FixtureOne Corp, 181 Wash. 2d 642, 649, 336 P.3d 1112 (2014) (quoting
Lewis v. Bours, 119 Wash. 2d 667, 669, 835 P.2d 221 (1992)), cert. denied, Schutz v. Failla, 135 S.
Ct. 1904 (2015).
II. WASHINGTON’S RECREATIONAL LAND USE STATUTE
Washington’s recreational land use statute2 aims to encourage landowners to open their
lands to the public by modifying the common law duty owed to invitees, licensees, and
trespassers. Jewels v. City of Bellingham, 183 Wash. 2d 388, 394, 353 P.3d 204 (2015). In keeping
with this goal, landowners who open their land to the public for recreational purposes, free of
charge, are generally not liable for unintentional injuries to such users. RCW 4.24.210.
However, the statute creates an exception where an injured party may overcome this immunity
by showing the injuries were sustained “by reason of a known dangerous artificial latent
condition for which warning signs have not been conspicuously posted.” RCW 4.24.210(4)(a).
Each of the terms known, dangerous, artificial, and latent modify the term “condition.” Jewels,
183 Wash. 2d at 397. Dickie must prove all aspects of the injury-causing condition for liability to
attach to State Parks. 183 Wash. 2d 395. The only issue in dispute here is whether the injury-
causing condition was latent.
III. INJURY-CAUSING CONDITION
The first step in the court’s analysis is to identify the injury-causing condition. Davis v.
State, 102 Wash. App. 177, 185, 6 P.3d 1191 (2000). Under the recreational use statute, the injury-
causing condition is defined as “‘the specific object or instrumentality that caused the injury,
2
RCW 4.24.210(1).
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No. 47192-2-II
viewed in relation to other external circumstances in which the instrumentality is situated or
operates.’” Swinehart v. City of Spokane, 145 Wash. App. 836, 846, 187 P.3d 345 (2008) (quoting
Ravenscroft v. Wash. Water Power Co., 136 Wash. 2d 911, 921, 969 P.2d 75 (1998)). Identifying
the injury-causing condition is a factual determination. Because State Parks moved for summary
judgment, all facts and reasonable inferences therefrom must be construed in the light most
favorable to Dickie. Swinehart, 145 Wash. App. at 846.
Here, the injury-causing condition was the wet, wooden ramp. Dickie implies without
arguing that the injury-causing condition is the slippery, wooden ramp. But, the slipperiness of
the ramp is the danger the condition imposed, not the condition itself.
IV. LATENT
Dickie argues that because the slipperiness of the ramp was not apparent, a material issue
of fact exists as to whether the injury-causing condition was latent. We disagree.
An injury-causing condition is “latent” if it is “not readily apparent to the recreational
user.” Van Dinter v. City of Kennewick, 121 Wash. 2d 38, 45, 846 P.2d 522 (1993). The condition
itself, not the danger it poses, must be latent. Jewels, 183 Wash. 2d at 398. The dispositive
question is whether the condition is readily apparent to the general class of recreational users.
183 Wash. 2d at 398.
Here, reasonable persons could not disagree that the wooden ramp as well as its injury
causing aspect—its wetness—were obvious. Dickie points to a State Parks employee’s
testimony that the slipperiness of the deck was not apparent as evidence of latency. While the
ramp’s slipperiness may not have been readily apparent, that does not show the injury-causing
condition was latent. At most it shows that the patent condition posed a latent, or unobvious,
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No. 47192-2-II
danger. As our Supreme Court explained in Van Dinter, “‘latent’ modifies ‘condition’, not
‘danger’. Therefore injuries that result from latent dangers presented by a patent condition are
not actionable under RCW 4.24.210.” 121 Wash. 2d at 46.
Dickie also argues that because the ramp was part of a structure that provided shelter
accommodations to park guests that recreational users could reasonably expect that the ramp
would be safe for use. Again, under the recreational use statute, the question is whether the
injury-causing condition—not the specific risk it poses—is readily apparent to the ordinary
recreational user. Jewels, 183 Wash. 2d at 398. That the ramp led to a yurt does not raise a genuine
issue of material fact as to whether the wet, wooden ramp was latent.
Reasonable persons could not differ in concluding that the wet, wooden ramp was not a
latent condition. We affirm the superior court’s grant of summary judgment.
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.
Worswick, J.
We concur:
Johanson, C.J.
Maxa, J.
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