Jon L. Wilkerson v. City Of Seatac

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
JON L. WILKERSON, No. 66524-3-1
Appellant,
v. ORDER DENYING MOTION FOR
RECONSIDERATION AND
CITY OF SEATAC, AMENDING OPINION
Respondent.
The appellant, Jon L. Wilkerson, filed a motion for reconsideration. The
respondent City of SeaTac filed an answer. The panel having determined that the
motion should be denied but the opinion amended; now, therefore, it is hereby
ORDERED that the motion for reconsideration is denied.
IT IS FURTHER ORDERED that the opinion of this court in the above-entitled
case filed November 5, 2012, shall be amended as follows:
1. On page 3, between the second paragraph ending with the sentence: "But
Wilkerson said that he had no concerns about his ability to accomplish the
jump," and the third paragraph beginning with the sentence: "Wilkerson
testified that he 'gauged the speed to be appropriate for the gap' and
approached the jump 'moderate to fast, the speed needed to get over the
gap,'" insert the following paragraph and block quote:
In his declaration in opposition to summary judgment, Wilkerson
states he "reviewed" the jump, including "the pitch of the take-off jump
No. 66524-3-1/2
itself and the size of the jump and the gap and thought everything looked
ok," but "did not take a practice 'run in.'" The declaration states, in
pertinent part:
14. I then rode over to a smaller jump (which had a crevice
or drop in the middle) called a gap jump and felt that it
was well within my "skill set";
15. I then generally reviewed the jump, including the pitch of
the take-off jump itself and the size of the jump and the
gap and thought everything looked ok;
16. That is, looking at the jump itself, it looked fine for me to
take;
17. I did not measure the gap width, nor the pitch of the
jump nor the pitch of the landing;
23. I also did not take a practice "run in" leading up to the
jump because I had no reason to think that there was
some danger to me from the approach to the jump or
that the approach would be problematic or prevent me
from clearing the jump.
2. On page 4 in the second full paragraph, replace "Bayler Institutefor
Rehabilitation" with "Baylor Institute for Rehabilitation."
The remainder of this opinion shall remain the same.
Dated this ^hfoy oTTY^u-cin, 2013.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JON L. WILKERSON, No. 66524-3-1
Appellant, DIVISION ONE r-J w c
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CITY OF SEATAC, i
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Respondent. FILED: November 5, 2012 .,—
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Schindler, J. — Jon Wilkerson challenges the decision on summary judgment tor,
dismiss his lawsuit against the City of SeaTac based on the recreational land use
immunity statute, RCW4.24.200-.210. We affirm.
FACTS
The Des Moines Creek Trail Park is a 96-acre woodland preserve open to the
public for recreational use. The City of SeaTac (City) owns and operates the portion of
the park located within the City,1 including dirt mounds in the park that bicyclists use as
bike jumps. The dirt jumps, known as "the Softies," are located about a quarter-mile off a
paved trail in the park. The City did not create or maintain the dirt jumps.
In June 2006, 30-year-old Jon Wilkerson moved from Arkansas to Kent,
Washington to work as a physical therapist. Wilkerson had plans to go mountain biking
at Whistler in British Columbia with friends in July. Wilkerson testified that he considered
1The City of Des Moines and the Port of Seattle own and operate other portions of the park.
No. 66524-3-1/2
himself an "experienced mountain biker" and had previously used BMX2 and mountain
bikes to do ramp and dirt jumps.
About a week after moving to Kent, Wilkerson went to a bike shop to buy a new
helmet. Wilkerson asked the bike shop manager "about nearby parks that had dirt jumps
— where I could ride my bike and practice making jumps in anticipation of [the] bike trip
to Whistler with friends." The bike shop manager told Wilkerson about the Des Moines
Creek Trail Park and the "BMX style dirt jump[s]," and "told [him] how to get to [the
Softies]."
On June 21, Wilkerson drove to the Des Moines Creek Trail Park. Wilkerson
arrived at the park between 5:00 and 6:00 p.m. and parked his Ford Expedition in the
parking lot located at South 200th Street. Wilkerson left his cell phone in his car.
Wilkerson testified that he went to the park that day to train and "work[] on jumps that I
knew that I would need to be able to clear at Whistler. ... I was working that day to
prepare to do more advanced techniques at Whistler."
After riding around the park for about 30 to 45 minutes on "single [bike] track
trails," Wilkerson testified that he followed the directions he received from the bike shop
manager to get to the Softies. Wilkerson said he "rode down a ravine, crossed a creek,
walked [his] bike up and the softies were on the right." When he arrived at the Softies,
no one else was there.
Wilkerson testified that he examined the dirt jumps and understood the
importance of the "approach speed," as well as the condition of the track and the height
and pitch of the jumps. Wilkerson said that he rode his bike over the jumps to "try some
of them out" before selecting a smaller "gap jump." Wilkerson said he decided the other
2(Bicycle motocross.)
No. 66524-3-1/3
jumps "weren't within my skill set" because they were "too steep" and "too close
together," and concluded the smaller gap jump was "within my skill set."
The dirt jump Wilkerson selected contained "two mounds with a gap in between."
Wilkerson testified that he inspected the jump before attempting it, and rode down the
approach to check the pitch and surface composition.
Q But you did check the jump out before you went off of it,
correct?
A I did.
Q And, you rode down and actually, with the intention of
checking it out before you went off of it, correct?
A I did.
Q And, you were looking for things like the pitch of the jump,
correct?
A Yes.
Q You were looking to see if the composition of the surfaces
was adequate, correct?
A Yes.
Q You were looking to see if the jump was safe before you went
off of it, correct?
A Yes.
Wilkerson testified that he concluded "there was enough of a grade to [carry] me
into [sic] with a moderate to fast amount of speed." Wilkerson admitted that it had been
at least a couple of years "since I'd done a gap jump." But Wilkerson said that he had no
concerns about his ability to accomplish the jump.
Wilkerson testified that he "gauged the speed to be appropriate for the gap" and
approached the jump "moderate to fast, the speed needed to get over the gap."
Wilkerson missed the jump and "[t]umbled forward" over the front of the bike. Wilkerson
testified, in pertinent part:
On the back side of the jump for some reason my back wheel didn't make it
all the way over the berm of the back side of the jump. So, it impacted the
top of the berm, rebounded and knocked me over the front of the bicycle.
No. 66524-3-1/4
Wilkerson hit the ground head-first and landed on his back five or six feet beyond
the jump. Wilkerson was unable to move. Wilkerson called for help for some time
before losing consciousness.
At about 1:00 a.m., a City employee reported seeing Wilkerson's car in the
parking lot. Two bicyclists found Wilkerson at about 11:00 a.m. and called 911.
Emergency personnel immediately responded and transported Wilkerson to Harborview
Medical Center. Wilkerson suffered from hypothermia and went into cardiac arrest.
During "life-saving efforts," Wilkerson's lung was lacerated. Wilkerson successfully
underwent surgery for the laceration. The doctors at Harborview diagnosed Wilkerson
with a C4-C6 vertebra fracture. Wilkerson is quadriplegic.
After an assessment in Arkansas in September 2006, Wilkerson participated in
the program at the Bayler Institute for Rehabilitation in Texas. During the assessment,
Wilkerson said that although he was an experienced mountain biker, as he went over the
jump, he came down "wrong" because he" 'was a bit out of practice'" and " 'a little too
bold.'"
Wilkerson filed a lawsuit against the City alleging the City breached the duty to
use reasonable care in failing to maintain the park and "allowing man-made jumps to
remain despite the . . . inherent danger the jumps posed." The complaint also alleged
the City breached the duty to supervise the park and report Wilkerson's vehicle "to
authorities." Wilkerson claimed the failure to report seeing his car in the parking lot
caused him to suffer hypothermia and injury to his lungs. The City denied the allegations
and asserted a number of affirmative defenses, including immunity under the
recreational land use statute, RCW4.24.200-.210.
No. 66524-3-1/5
The City filed a motion for partial summary judgment to dismiss the claim that the
City breached the duty to remove the dirt jumps. The City argued that because there
was no evidence of a known dangerous artificial latent condition, the claim was barred by
the recreational land use statute.
Wilkerson argued there were genuine issues of material fact as to whether the
approach to the gap jump was a known dangerous artificial latent condition. Wilkerson
also argued that the City's failure to remove, redesign, or maintain the dirt jumps was
"willful and wanton conduct [that] rises to the level of intentional conduct."
In support of his argument that the approach to the gap jump was a latent
condition, Wilkerson submitted the declarations of Samuel Morris, Jr., a professional
mountain bike racer; Lee Bridgers, the owner of a company that conducts mountain bike
jumping clinics; and his own declaration.3
In his declaration, Wilkerson states that he did not "see[] or appreciate[] the S-
curved, angled lead-in to the jump." Morris states that in his opinion,
it was not the jump itself that caused Jon to crash, but the curvy nature of
the lead-in, or approach, to the jump, which more probably than not
reduced his speed enough to prevent him from successfully completing the
jump.. .. While Jon testified that he reviewed the size of the gap and the
pitch of the jump, what he did not consider and what a beginner to even an
intermediate jumper would mostly likely not consider because of the
subtleness is the curved approach leading into the jump and the effect that
the approach would have on the ability of the rider to complete the jump.
These conditions would not be apparent to a rider of Jon's skill level.
Bridgers testified that the cause of the crash was the "lack of speed due to the
twists and turns in the approach."
[T]he curvy lead-in to the jump prevented Jon from successfully attaining
3In support of his assertion thatthe approach to the gap jump was a "known" and "dangerous"
condition, Wilkerson submitted excerpts from the deposition of the City's Acting Fire Chief and incident
reports of bicycle accidents.
5
No. 66524-3-1/6
the speed necessary to complete the jump and was the primary cause of
Jon's injury.
Bridgers stated that in his opinion, Wilkerson did not appreciate the S-curve approach.
While the S-curve after the berm is not visibly dramatic, it affects the
direction, physics, and speed of the rider attempting to take the jump and
therefore has a significant impact on the rider's ability to successfully clear
the jump, especially on a first attempt. This is something that Jon
obviously did not notice or appreciate and which clearly had an impact on
his ability to make the jump.
The court granted the motion for partial summary judgment. Even assuming the
effect of the S-curve approach to the jump was not readily apparent to Wilkerson, the
court concluded it was not a latent condition. The court ruled that as a matter of law, the
inability to appreciate the risk does not constitute a latent condition.
So for purposes of the summary judgment, I am assuming that the
trail, the approach leading to the jump was curved in some fashion such
that it would have limited the speed of a biker who arrived at the jump site.
I am going to further conclude, for purposes of the summary
judgment, that it would not have been readily apparent to the biker that he
could not acquire sufficient speed to clear the jump.
[T]here is no testimony that you couldn't see the path. The path was
there. The path was not submerged; it was not invisible. Whether it was
straight or curved, it was the path that one could see.
[T]here are no cases where the courts have said you can look
directly at it, you can see what is there to be seen, and the inability to
appreciate the risk posed constitutes latency. I didn't see any cases like
that.
I find as a matter of law that the lead up, whether it was curved or
straight, is not the latent condition required under the statute, and it does
not abrogate the statutory immunity.
The court also concluded there was no evidence that the City acted with willful
and wanton disregard for a danger posed by the Softies.
I would also suggest that there is no evidence here that would rise to
the level of willful and wanton disregard, if indeed that is the standard in
Washington.
I will accept for a summary judgment proposition that the city knew
or should have known these jumps were out there, they knew or should
No. 66524-3-1/7
have known that they were dangerous and there have been prior
accidents, and that they did not go in and sign it or remov[e them i]s not the
standard for recreational use immunity.
The "Order Granting Defendant SeaTac's Motion for Summary Judgment Re:
Recreational Use Immunity" dismisses the claim that "the City of SeaTac owed
[Wilkerson] a duty to protect him from his failed mountain bike jump" at the Des Moines
Creek Trail Park. The court denied Wilkerson's motion for reconsideration.
The City then filed a motion for summary judgment dismissal of Wilkerson's claim
that the City breached the duty to supervise the park and report seeing Wilkerson's
vehicle in the parking lot. The City argued that the recreational land use statute and the
public duty doctrine barred these claims.
Wilkerson argued the recreational land use statute did not apply to the cardiac
and lung injuries he suffered as a result of remaining in the park overnight because he
was no longer engaged in recreation. Wilkerson also argued that the City assumed a
duty to users of the park to exercise reasonable care in patrolling the park.
The court granted summary judgment. The court ruled that the recreational land
use statute barred Wilkerson's claim that the City was liable for the injuries Wilkerson
suffered as a result of the crash. The court's oral ruling states, in pertinent part:
I mean to suggest that a landowner is immune from someone using
their land for recreation, but if they get hurt, then a new duty arises to come
take care of them and to use reasonable efforts to make sure they are safe
after they are injured, as opposed to being safe before they are injured,
really stretches it too far.
[T]o suggest the landowner has a duty not to protect the person from
injury, but to treat them after they are injured, or to be alert to the fact of
injury, even though they are not alert to prevent the injury, makes no
sense.
So I am ruling that in the circumstances of having failed to detect
him injured on site and failed to having brought medical services to him fast
No. 66524-3-1/8
enough, the city is still acting in its capacity as landowner.
The "Order Granting Defendant SeaTac's Motion for Summary Judgment Re: Duty to
Rescue" dismisses Wilkerson's claim that the City "owed him a duty to supervise and
rescue him sooner."4
ANALYSIS
Wilkerson contends the trial court erred in dismissing his negligence claims
against the City under the recreational land use immunity statute, RCW4.24.200-.210,
and the court erred in concluding that the statute barred his claim for "hypothermia and
cardiac and lung injuries."
We review summary judgment de novo and consider the facts and all reasonable
inferences in the light most favorable to the nonmoving party. Hearst Commc'ns, Inc. v.
Seattle Times Co.. 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is
appropriate only if there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Bulman v. Safewav, Inc.. 144 Wn.2d 335, 351,
27 P.3d 1172 (2001). A party cannot rely on allegations in the pleadings, speculation, or
argumentative assertions that factual issues remain. White v. State, 131 Wn.2d 1, 9,
929 P.2d 396 (1997).
The recreational land use statute, RCW 4.24.200-.210, grants immunity to
landowners for unintentional injuries to recreational users of the land.
The statute modifies a landowner's common law duty in order "to encourage
landowners to open their lands to the public for recreational purposes." Davis v. State,
144 Wn.2d 612, 616, 30 P.3d 460 (2001). Because the recreational land use statute is
4Wilkerson filed a motion to compel the City to produce discovery, which the court denied.
Wilkerson appeals the order denying the motion to compel but does not assign error to the order or
address it in the briefs. Accordingly, the issue is waived. RAP 10.3(a)(4); Hollis v. Garwall, Inc., 137
Wn.2d 683, 689 n.4, 974 P.2d 836 (1999).
8
No. 66524-3-1/9
in derogation of common law, it is strictly construed. Matthews v. Elk Pioneer Days, 64
Wn. App. 433, 437, 824 P.2d 541 (1992).
Under RCW 4.24.200, the purpose of the recreational land use statute is to
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 and toward persons who may be injured or otherwise damaged by
the acts or omissions of persons entering thereon.[5]
Under RCW 4.24.210, a landowner is immune from liability for unintentional
injuries unless the injury is caused by a known dangerous artificial latent condition "for
which warning signs have not been conspicuously posted." RCW 4.24.210 states, in
pertinent part:
(1) [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 term includes, but is not limited to,. .. bicycling,
. . . without charging a fee of any kind therefor, shall not be liable for
unintentional injuries to such users.
(4)(a) Nothing in this section 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.
To establish the City was not immune from suit under RCW 4.24.210, Wilkerson
must show the City charged a fee for the use of the land, the injuries were intentionally
inflicted, or the injuries were sustained by reason of a known dangerous artificial latent
condition for which no warning signs were posted. Davis, 144 Wn.2d at 616.
Here, there is no dispute that the Des Moines Creek Trail Park was open to the
public for recreational purposes and no fee was charged. The parties dispute whether
5The legislature amended the statute severaltimes between 2006 and 2012. Laws of 2006, ch.
212, §6; l_AWSOF2011,ch. 53, §1; Laws OF 2011 ch. 171, §2; Laws of 2011 ch. 320, §11; LAWS of
2012 ch. 15, § 1. The amendments are not pertinent to this appeal.
9
No. 66524-3-1/10
the injury-causing condition was latent. Each of the four elements of a known dangerous
artificial latent injury-causing condition must be present in order to establish liability
under the recreational land use statute. Ravenscroft v. Wash. Water Power Co., 136
Wn.2d 911, 920, 969 P.2d 75 (1998). "If one of the four elements is not present, a claim
cannot survive summary judgment." Davis, 144 Wn.2d at 616.
Wilkerson asserts there are genuine issues of material fact as to whether the S-
curve lead-in was a latent condition, and whether a recreational user would recognize
the danger of the S-curve approach. Wilkerson contends the S-curve "lead-in to the
jump" caused his injuries.
For purposes of the recreational land use statute, RCW 4.24.210, "latent" means
" 'not readily apparent to the recreational user.'" Ravenscroft, 136 Wn.2d at 924
(quoting Van Pinter v. City of Kennewick, 121 Wn.2d 38, 45, 846 P.2d 522 (1993)). In
determining whether the injury-causing condition is latent, the question is not whether the
specific risk is readily apparent but, instead, whether the injury-causing condition itself is
readily apparent. Ravenscroft, 136 Wn.2d at 924. A landowner will not be held liable
where a patent condition posed a latent, or unobvious, danger. Van Pinter. 121 Wn.2d
at 46. Although latency is a factual question, when reasonable minds could reach but
one conclusion from the evidence presented, summary judgment is appropriate. Van
Pinter, 121 Wn.2d at 47.
Even viewing the evidence in the light most favorable to Wilkerson, as a matter of
law, the S-curve lead-in was not a latent condition. At most, the S-curve approach is a
patent condition that "posed a latent, or unobvious, danger." Van Pinter, 121 Wn.2d at
46.
10
No. 66524-3-1/11
In Van Dinter, the Washington Supreme Court addressed the difference between
a latent condition and a latent danger. In Van Dinter, Van Dinter struck his eye on a
protruding metal antenna of a caterpillar-shaped playground toy located next to the
grassy area at the park where he was engaged in a water fight. Van Pinter. 121 Wn.2d
at 40. Van Pinter stated that "he did not realize someone on the grass could collide with
any part of the caterpillar." Van Pinter, 121 Wn.2d at 40. Van Pinter asserted "a
condition is latent for purposes of RCW 4.24.210 if its injury-producing aspect is not
readily apparent to the ordinary recreational user," and argued that "while the caterpillar
was obvious, its injury-causing aspect was not." Van Pinter, 121 Wn.2d at 45.
The court disagreed with Van Pinter and held that "RCW 4.24.210 does not hold
landowners potentially liable for patent conditions with latent dangers. The condition
itself must be latent." Van Pinter, 121 Wn.2d at 46. While the court expressly
acknowledged that "it may not have occurred to Van Pinter that he could injure himself in
the way he did," the court concluded that "this does not show the injury-causing condition
— the caterpillar's placement — was latent.. .. The caterpillar as well as its injury-
causing aspect — its proximity to the grassy area — were obvious." Van Pinter, 121
Wn.2d at 46.
Here, Wilkerson's experts testified that the danger posed by the S-curve approach
was not "obvious" to "beginning to intermediate" bike jumpers.
[T]he S-curve ... affects the direction, physics, and speed of the rider
attempting to take the jump .... It is my opinion that the dangers posed by
the S-curved lead-in to the jump were not obvious for [Wilkerson] and other
beginning to intermediate jumpers.161
6(Emphases added.)
11
No. 66524-3-1/12
Morris testified that it was unlikely that Wilkerson or other jumpers would "consider
... the effect that the approach would have."
While [Wilkerson] testified that he reviewed the size of the gap and the
pitch of the jump, what he did not consider and what a beginner to even an
intermediate jumper would most likely not consider because of the
subtleness is the curved approach leading into the jump and the effect that
the approach would have on the ability of the rider to complete the jump.171
The testimony that Wilkerson did not "appreciate" the danger of the S-curve
approach to the jump does not establish a latent condition. As in Van Pinter, at most,
Wilkerson's failure to "appreciate" the S-curve lead-in "shows that the present situation is
one in which a patent condition posed a latent, or unobvious, danger." Van Pinter, 121
Wn.2d at 46.
The cases Wilkerson relies on, Ravenscroft and Cultee v. City of Tacoma, 95 Wn.
App. 505, 977 P.2d 15 (1999), are distinguishable. In Ravenscroft, a man was injured
when the boat he was riding in hit a rooted tree stump submerged in a channel of water
that formed part of a dam reservoir. Ravenscroft, 136 Wn.2d at 915. The driver of the
boat testified that "he saw nothing that would indicate the presence of any submerged
objects or hazards in the direction he was traveling." Ravenscroft, 136 Wn.2d at 916.
Other witnesses testified that other boats had hit the stumps. Ravenscroft, 136 Wn.2d at
925.
The court identified the injury-causing condition as the "man-created water
course, containing a submerged line of tree stumps" that was "created by [the
Washington Water Power Company] cutting down trees, leaving stumps near the middle
of a water channel, then raising the river to a level which covered the stumps."
Ravenscroft, 136 Wn.2d at 923. The court concluded that summary judgment was not
7(Emphases added.)
12
No. 66524-3-1/13
appropriate because "[t]he record does not support a conclusion that the submerged
stumps near the middle of the channel were obvious or visible as a matter of law."
Ravenscroft, 136 Wn.2d at 926.
In Cultee, a five-year-old girl rode a bicycle on a road with an eroded edge that
was partially flooded by the Hood Canal tidal waters. Cultee, 95 Wn. App. at 509. The
girl fell into the water and drowned at a point where the road and the eroded edge were
covered by two to four inches of muddy water and the adjacent fields were covered with
several feet of water. Cultee, 95 Wn. App. at 510. The court held there were material
issues of fact about whether the condition that killed the girl was "the depth of the water
alone, or a combination of the muddy water obscuring the eroded edge of the road and
an abrupt drop into deep water;" and whether" 'recreational users' would have been able
to see the edge of the road, given that it was eroded and covered with a two-to-four-inch
layer of muddy water." Cultee, 95 Wn. App. at 523.
Wilkerson also argues that the trial court erred in concluding the recreational land
use statute bars his claim for cardiac and lung injuries. Wilkerson argues the statute
does not apply to the injuries he suffered after he missed the jump because he was not
"engaged in recreation" or "using" the land when he suffered cardiac and lung injuries.
Wilkerson relies on Wisconsin law in support of his argument that the recreational
land use statute does not apply to secondary injuries. But unlike RCW 4.24.210(1), the
Wisconsin statute predicates landowner immunity on recreational use. The Wisconsin
statute states, in pertinent part: "[N]o owner... is liable for... any injury to ... a person
engaging in recreational activity on the owner's property." Wis. Stat. § 895.52(2)(b). By
contrast, RCW 4.24.200-.210 grants a broader immunity to landowners "who allow
members of the public to use [their lands] for the purposes of outdoor recreation." RCW
13
No. 66524-3-1/14
4.24.210(1); see also Gaeta v. Seattle City Light, 54 Wn. App. 603, 608-10, 774 P.2d
1255 (1989) (because landowner "open[ed] up the lands for recreational use without a
fee," and thereby "brought itself under the protection of the immunity statute," landowner
was immune from liability regardless of whether "a person coming onto the property may
have some commercial purpose in mind").
Next, Wilkerson argues that the City's willful and wanton or intentional conduct
precludes immunity under the recreational land use statute because the City knew that
other bicyclists had been injured. Jones v. United States, 693 F.2d 1299 (9th Cir. 1982),
does not support Wilkerson's argument.
In Jones, the plaintiff went to Hurricane Ridge located in Olympic National Park as
part of a church-sponsored event. Jones. 693 F.2d at 1300. The plaintiff was severely
injured while riding on an inner tube at Hurricane Ridge. Jones, 693 F.2d at 1300. The
plaintiff sued the church and the federal government. Jones. 693 F.2d at 1300. The jury
returned a verdict against the church but found the plaintiff was also negligent. Jones,
693 F.2d at 1301. The trial court entered judgment in favor of the federal government
under Washington's recreational land use statute on the grounds that the plaintiff did not
Q
establish the government's conduct was willful or wanton. Jones, 693 F.2d at 1300-01.
On appeal, the plaintiff argued the court erred in concluding the government's
conduct was not willful or wanton under the recreational land use statute. Jones. 693
F.2d at 1301. The plaintiff asserted that the government's failure to " 'put up signs and
8 The evidence established that the extent of the danger was not actually or reasonably
known to the Government. Its failure to put up signs and ropes was negligence which
proximately contributed to the plaintiffs accident but it did not constitute "an intentional
failure to do an act" nor was it "in reckless disregard of the consequences."
Jones, 693 F.2d at 1304 (internal quotation marks omitted).
14
No. 66524-3-1/15
ropes'" was deliberate and the government" 'knew or should have known'" of the
dangerous condition. Jones, 693 F.2d at 1304.
The Ninth Circuit affirmed. Jones, 693 F.2d at 1305. The Court distinguished
cases that involved specific acts of the government that create a dangerous condition,
and held that" '[w]anton misconduct is not negligence since it involves intent rather than
inadvertence, and is positive rather than negative.'" Jones. 693 F.2d at 1305 n.21
(quoting Adkisson v. City of Seattle. 42 Wn.2d 676, 687, 258 P.2d 461 (1953)). Because
the government did not create the injury-causing condition, and the " 'impact of tubing
and the inherent dangers . . . were not apparent to the public or the
Government,'" the Court concluded the failure to put up signs or ropes was not
intentional and willful or wanton conduct under the recreational land use statute. Jones,
693F.2dat1305.
We agree with the district court that, "While it was negligence on the
Government's part not to put up signs or ropes, its failure to do so does not
rise to the status of willful and wanton conduct under the law of
Washington."
Jones, 693 F.2d at 1305.
Here, as in Jones, there is no dispute that the City did not create the dirt jumps or
S-curve approach. While the alleged failure of the City to "bulldoze the Softies" or post
warning signs may constitute negligence, it is not willful or wanton conduct under the
recreational land use immunity statute.
Wilkerson also claims the City assumed a duty to supervise and patrol the park.
Wilkerson points to the sign the City posted in the parking lot and the failure to take
some action after the City employee saw his car in the parking lot at 1:00 a.m. The sign
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posted at the entry to the Pes Moines Creek Trail Park parking lot stated:
Park is patrolled by City of SeaTac Police Pepartment. ..
Park is operated by City of SeaTac Parks & Recreation Pepartment.. .
Park is closed from dusk to dawn unless otherwise posted
Parking ... is only permitted during park hours.
Unauthorized vehicles will be impounded.
But in order to establish liability, Wilkerson must show there is a duty owed to him
and not a duty owed to the public in general. Babcock v. Mason County Fire Pist. No. 6,
144 Wn.2d 774, 785, 30 P.3d 1261 (2001).
"Under the public duty doctrine, no liability may be imposed for a
public official's negligent conduct unless it is shown that the duty breached
was owed to the injured person as an individual and was not merely the
breach of an obligation owed to the public in general (i.e., a duty to all is a
duty to no one)."
Babcock. 144 Wn.2d at 785 (quoting Taylor v. Stevens County. 111 Wn.2d 159, 163,
759 P.2d 447 (1988)9). Because the record shows that the City did not assume a duty or
make express assurances to Wilkerson, the public duty doctrine bars his claim that the
City owed him a duty of care. Babcock, 144 Wn.2d at 785-86.
We affirm dismissal of Wilkerson's lawsuit against the City.
WE CONCUR:
T \ mVW \
9(Internal quotation marks and citation omitted.)
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