Legal Background

Like any landowner in Washington, local governments can be sued for acts or omissions resulting in negligence.  Typically, visitors to a property are classified as an invitee, licensee, or trespasser.   However, Washington law has carved out a protection for landowners who permit the public to enjoy natural areas for recreation.

In 1966, the Washington Supreme Court expanded the invitee classification to include the public invitee.  They defined this new classification as a person “‘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.’”[i]  One year later, the legislature enacted an immunity statue designed to “‘to encourage owners of land to make available land and water areas to the public for recreational purposes by limiting their liability.’”[ii]  This “recreational use immunity statute provides that ‘any public or private landowners . . . in lawful possession and control of any lands . . . who allow members of the public to use [their lands] for the purposes of outdoor recreation . . . shall not be liable for unintentional injuries to such users.’”[iii]

Facts

In Schwartz v. King County [iv], plaintiff was out riding the Green River Trail (“GRT”) with his bicycle on a wet, overcast morning. As he rode along, he enjoyed the beautiful scenery along the GRT.  Without warning, he was thrown from his bicycle to the ground.  He had collided with a bollard (a removable metal post placed in the middle of the trail to prevent vehicles from entering the trail).  The severity of the collision sheared his carbon frame bicycle in two.  Although wearing a helmet, the force of the impact tragically rendered plaintiff a quadriplegic, and he will require a ventilator for the rest of his life.  Years before the accident, a person had painted “POST” in fluorescent paint to alert trail users of the bollard.

Plaintiff filed suit against the county. The county filed a motion for summary judgment, seeking shelter under the recreational use immunity statute.  The county’s motion was granted, and plaintiff appealed.  The Court of Appeals reversed, holding plaintiff had “established a genuine issue of material fact as to whether the bollard constitutes a known dangerous artificial latent condition.”[v]  The county then petitioned the Washington Supreme Court for review, which was granted.

Analysis

The Court looked to RCW 4.24.210(4)(a), which provides “a recreational landowner remains liable ‘for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.’”  “[A]ll four terms (known, dangerous, artificial, latent) modify ‘condition,’ not one another,” and so all must be present for the exception to apply.[vi]

The terms “known” and “artificial” were easily satisfied.  The court turned to the common law for definitions of “dangerous” and “latent.”  “Dangerous” was defined as a “condition…‘that poses an unreasonable risk of harm.’”[vii]  “Latent was defined as a condition a “landowner ‘should expect that [invitees] will not discover or realize the danger, or will fail to protect themselves against it.’”[viii]

The court applied these definitions to the facts of the case.  Evidence of the severity of the injury and a person using fluorescent paint to write “POST” suggested the bollard posed an unreasonable risk of harm.  Additionally, plaintiff presented unrebutted expert testimony “that the GRT bollard was not readily apparent to someone coming in contact with it in certain conditions” and “was likely not capable of being physically seen at the time [of Schwartz’s collision] by a normal user of the trail.”[ix]

Conclusion

This case is a good example of how cases can turn during litigation on “small” things, like a definition or a painted word, “POST.”  Not losing sight of the small things in a large case is sometimes difficult with seven or eight figure demands accompanied by thousands of pages of discovery.  Build defenses early.  Be ready to incorporate accepting responsibility, regardless of whether or not a client carries liability.  Use reasonableness and common sense in case analysis.  Summary judgement is typically a tall hurdle, and as in this case, one should always be preparing a case as if it is heading to trial.

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Sources

[i] Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 694, 317 P.3d 987 (2014) (citations omitted).

[ii] LAWS OF 1967, ch. 216, § 1.

[iii] RCW 4.24.210(1) (addition in original).

[iv] Schwartz v. King County, 2022 WL 3971947 (2022).

[v] Schwartz v. King County, 14 Wn. App. 2d 915, 941, 474 P.3d 1092 (2020).

[vi] Jewels v. City of Bellingham, 183 Wn.2d 388, 396, 353 P.3d 204 (2015) (citing Van Dinter v. City of Kennewick, 121 Wn.2d 38, 46, 846 P.2d 522 (1993)) (additions in original).

[vii] Gaeta v. Seattle City Light, 54 Wn. App. 603, 609, 774 P.2d 1255 (1989)

[viii] RESTATEMENT (SECOND) OF TORTS § 343(b) (addition in original).

[ix] Schwartz, (addition in original).