Qualified for Recreational Use Immunity? You May Still be Liable

From the desk of Ashley Nagrodski:

Washington has a recreational use immunity statute that shields landowners from liability for injuries that occur on their property. However, there is an exception to this immunity which means a qualifying defendant may still face liability. What exactly is required to come within the protection of this statute? Read on to find out.

Claims Pointer:

This Washington Court of Appeals’ decision clarified what is required to be shielded from liability under the recreational use immunity statute, which seemingly offers a broad protection from liability, for which the County qualified. More importantly, the Court shed light on the known dangerous artificial latent condition exception to this immunity and determined that the County may still face liability due to this exception. General Litigation; Negligence.

Schwartz v. King County, 14 Wn. App. 2d 915 (October 27, 2020)

Facts:

This case resulted from an accident that occurred when the plaintiff, Carl Schwartz (“Schwartz”), rode his bike on the Green River Trail (“GRT”) through Cecil Moses Memorial Park. The park is owned by the defendant, King County. While riding through the park, Schwartz struck a white bollard in the middle of the trail, measuring about four inches in width and several feet in height. The bollard was originally installed to prevent cars from using the trail and had a red reflector on top. As a result of this collision, Schwartz was rendered quadriplegic. Schwartz sued King County and in response, the County claimed immunity under the recreational use immunity statute. The County moved for summary judgment which the trial court granted, and Schwartz appealed.

Law:

Washington’s recreational use immunity statute, RCW 4.24.210, limits both public and private landowners’ liability for injuries that occur on their land. This statute was enacted to encourage landowners to make their land publicly available for recreational purposes. Under the statute, a landowner is not liable for unintentional injuries to users of the land if, the landowner satisfies three elements. However, even if the landowner qualifies for recreational use immunity, they still may not be able to escape liability for a known, artificial, dangerous, and latent condition.

In his appeal, Schwartz contended King County did not qualify for recreational use immunity. To establish recreational use immunity, an affirmative defense, the landowner must show the land was (1) open to the public; (2) for recreational purposes; and (3) a fee was not charged. The Court of Appeals examined each of these elements in turn and clarified what was required under each one.

First, in determining if the park was open to members of the public, Schwartz argued the correct inquiry was if King County had the authority to permanently close the entire trail. Schwartz claimed that the County did not have that authority because the trail was a public right of way which people could access for transportation purposes. The Court disagreed with Schwartz and held that the relevant question was if the landowner had the authority to close only the portion of the park where the injury occurred, not the entire trail. Ultimately, the Court held King County had the necessary authority to close that portion of the trail to the public. The Court reasoned the area of trail where Schwartz was injured ran through Cecil Moses Memorial Park, owned by King County, and local regulations allowed the County to set rules about the times and conditions the park could close regardless of whether users utilized the trail outside of the posted hours

Next, in order to satisfy the recreational purposes element, Schwartz argued that the trail must be used primarily for recreation. However, the Court once again disagreed and found all that was required was that the land needed to be available for recreational purposes, even if it was also used for other reasons. Lastly, a fee cannot be charged for use of the recreational area. Schwartz claimed the County once charge a fee for a race occurring on the trial and this amounted to charging a fee for use of the GRT, arguing this excluded the County from being able to claim recreational use immunity. The Court did not find this argument convincing and find that a fee charged one time for a single use permit was not enough to render the trail, particularly the part where Schwartz was injured, a “fee generating area.”

The Court of Appeals found that the County satisfied all three elements required to come within the protection of the recreational use immunity statute. However, the County’s responsibility for liability did not stop there. Even if the County was afforded the protection of the recreational use immunity statute, the County may still be liable due to an exception.

If the condition that caused Schwartz injury was “a known dangerous artificial latent condition” and no warning signs were posted, the County could still be found liable. Here, it was clear that the bollard was artificial and known to the County. As for whether the bollard was dangerous, the Court found that the very nature of Schwartz’s injuries, being rendered quadriplegic, showed that the condition was dangerous. Lastly, a condition is latent if the condition itself, not the danger, is not readily apparent to recreational users in general. The Court applied this standard and found that “under the conditions as they appeared to Schwartz” there was a material issue of fact as to whether the bollard was latent. The Court held that there were material issues of fact as to whether the bollard was known, dangerous, artificial, and latent. Thus, the County may still be liable for Schwartz’s injuries even though it satisfied the elements for recreational use immunity.

Ultimately, the Washington Court of Appeals reversed the trial court’s grant of the County’s motion for summary judgment.