Argued: January 22, 2015.
Crystal G. Rutherford ; and Ian S. Birk and Benjamin B. Gould (of Keller Rohrback LLP ), for petitioner.
Paul Ruffatto, City Attorney, and Shane P. Brady, Assistant, for respondent.
Bryan P. Harnetiaux and George M. Ahrend on behalf of Washington State Association for Justice Foundation, amicus curiae.
Daniel G. Lloyd and Daniel B. Heid on behalf of Washington State Association of Municipal Attorneys and Association of Washington Cities, amici curiae.
WE CONCUR: Chief Justice Barbara A. Madsen, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Mary I. Yu. AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. González.
Charles W. Johnson,
[183 Wn.2d 390] [¶1] -- This case involves statutory interpretation of Washington's recreational land use statute, RCW 4.24.210. The plaintiff in this case sued the city of Bellingham [183 Wn.2d 391] for negligence following an injury he sustained when he was thrown from his bicycle after hitting an obstacle in a city-maintained park. Under the statute, landowners who open their property for recreational use free of charge are immune from liability when visitors injure themselves. This statutory immunity does not apply, however, " for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted." RCW 4.24.210(4)(a). The trial court dismissed the plaintiff's claims on summary judgment, and the Court of Appeals affirmed. As we held in Van Dinter v. City of Kennewick, 121 Wn.2d 38, 846 P.2d 522 (1993), and we hold again today, the adjectives " known," " dangerous," " artificial," and " latent" each modify the term " condition," not one another. We hold that the Court of Appeals erroneously interpreted the statute by concluding that the plaintiff must show the city of Bellingham knew the condition was dangerous. However, our review of the record supports the trial court's conclusion that the condition in this case was obvious--that is, not latent. We affirm summary judgment in favor of the city of Bellingham.
[¶2] Steven Jewels was injured in a bicycle accident while riding in Cornwall Park, which the city of Bellingham (City) maintains. Jewels rode over a speed bump that caused a jolt to his bicycle. As he approached a second speed bump, he attempted to ride around it in order to avoid another jolt. Both speed bumps were painted bright yellow and did not span the entire width of the pathway: there was an unpainted section
between the speed bump and the adjacent curb. In his declaration, Jewels asserted that the area between the second speed bump and the curb appeared to him to be " bare, flat pavement." Clerk's Papers (CP) at 92. Unfortunately, this area was not bare, flat pavement. Instead, the City had installed an unpainted asphalt berm [183 Wn.2d 392] between the second speed bump and the adjacent right-hand curb. This " water diverter" berm channels water off of the pathway and into a cutout in the right-hand curb. The water diverter is approximately two inches high. In its shape and position, the water diverter is essentially a smaller, lower speed bump that extends from the speed bump proper to the curb cutout.
[¶3] Jewels rode his bicycle into this area. The unexpected shock from hitting the water diverter forced his front tire into the curb cutout, throwing him from his bicycle and causing him injury. The day after Jewels's accident, the City's parks and recreation department issued a work order directing the water diverter to be painted the same yellow color as the speed bump.
[¶4] Jewels sued the City for negligence. The City, in turn, asserted the immunity provided to it under Washington's recreational land use statute and moved for summary judgment. Jewels countered, arguing that his claim fell within the statutory exception for injuries caused by " a known dangerous artificial latent condition." RCW 4.24.210(4)(a). He argued that the City knew about the water diverter (having installed it) and that the water diverter was dangerous, man made, and difficult to see. Jewels introduced declarations from himself and other bicycling experts in support of his argument that areas next to speed bumps are usually flat. The City introduced several photographs of the area where the accident occurred. These photographs were taken after the accident and after the water diverter had been painted bright yellow to match the speed bump.
[¶5] The trial court granted summary judgment in favor of the City. It ruled that Jewels had failed to establish a material issue of fact that the water diverter was latent:
I agree that when it wasn't painted, it wasn't as obvious as the yellow speed bump. Nonetheless, it is two or two and a half [183 Wn.2d 393] inches high apparently. It was within view. Mr. Jewels was -- it's not something that he couldn't have seen had he looked, and that is really the standard under this statute. If you can see it, you know it, you should be aware of it.
And so I think that despite Mr. Jewels' unfortunate circumstances, and I think his assumption that he could ride to the side of the, of the speed bump might very well be a good assumption, and I'm not striking the expert opinion, so you know, if they indicate, one of them indicate that is what bicyclists commonly do, and I don't see that as being a problem, but I do think that this bump even if not painted was large enough and wide enough that it was clearly obvious and clearly visible. So it is not a latent condition.
Verbatim Report of Proceedings (July 27, 2012) (VRP) at 18-19.
[¶6] Secondarily, the trial court concluded that the water diverter was not a " known dangerous condition to the City, because there is no evidence whatsoever that the City knew or should have known or would have known that it was dangerous." VRP at 19. The trial court denied Jewels's motion for reconsideration, confirming its conclusion that the condition was not latent and that the City did not know the condition was dangerous.
[¶7] The Court of Appeals affirmed dismissal in a split decision. Jewels v. City of Bellingham, 180 Wn.App. 605, 324 P.3d 700 (2014). The majority of the Court of Appeals reasoned that in order to establish a " known condition" under the recreational use statute, a plaintiff must show that the defendant " also knew that [the condition] was dangerous and latent." Jewels, 180 Wn.App. at 611. Concluding that Jewels had failed to show that the City knew the condition was dangerous, the Court of Appeals did not reach the issue of whether the condition was latent. In dissent, Judge Becker argued that the plaintiff must show
only that the City knew the injury-causing condition exists in order to overcome the statutory immunity, not that the City knew the condition was dangerous. Jewels, 180 Wn.App. at 617
[183 Wn.2d 394] (Becker, J., dissenting). We granted review. Jew ...