Jewels v. City Of Bellingham

• Court: Washington Supreme Court
• Decided: June 11, 2015
• Docket: 90319-1
• Status: Published

Opinion

'/ Fll'E IN CLERKS OFFICE " " " ....-.: COURT, aTATE OF WASI llNGTCN DATE JUN 1 1 2015

~iJZ IN THE SUPREME COURT OF THE STATE OF WASHING TON

STEVEN JEWELS, ) ) No.90319-1 Petitioner, ) ) v. ) En Banc ) CITY OF BELLINGHAM, ) ) Respondent. ) ) Filed JUN 1 1 2015

JOHNSON, J.--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 for negligence following an injury he sustained when he was thrown

from his bicycle aner 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

plaintiffs 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 ' Jewels v. City of Bellingham, No. 90319-1

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.

FACTS

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

i;m unpainted asphalt berm 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.

2 Jewels v. City o.fBellingham, No. 90319··1

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.

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.

PROCEDURAL HISTORY

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 (~aving 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 was painted bright yellow to match the speed bump.

3 Jewels v. City of Bellingham, No. 90319-1

The tria1 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 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 rm 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 eriough and wide enough that it was clearly obvious and clearly visible. So it is not a latent condition.

Verbatim Report of Pro.<.~eedings (July 27, 2012) (VRP) at 18-19.

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 dangerm1s.

4 Jewels v. City ofBellingham, No. 90319-1

·. The Court of;Appeals affirmed dismissal in a split decision. Jewels v. City of

Bellinghq,m, 180 'Nn~ 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 lmew 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 diss'ent, 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 lmew the condition was dangerous. Jewels,

180 Wn. App. at 617 (Becker, J., dissenting). We granted review. Jewels v. City of

Bellingh.am, 181 'Nn.2d _1001, 332 P.3d 985 (2014).

STANDARD OF REVIEW

Statutory . interpretation .· is a question of law, . which . we review de novo. State

V.· A~mendariz, 160 V\Tn.2d 106, 110, 156 P.3d 201 (2007). Our starting point is

al~ays the s~atute's plain language and ordinary meaning. If the language is

urnunbiguous, our review is at an end. But if the language is open to more than one

reasonable interpretation, we may apply our recognized canons of statutory

construction to arrive at the legislature's intent. State v. J.P., 149 Wn.2d 444, 450,

69 P.3d 318 (2003). ' ,' ' '

5 1le1vels v. City of Bellingham, No. 90319-1

ANALYSIS

Washington'·s recreational land use statute aims to encourage landowners to

open their lands to the public by modifying the common law duty owed to invitees,

licensees, and trespassers. Davis v. State, 144 Wn.2d 612, 615-16, 30 P.3d 460

(2001}. In relevant part, the statute reads:

(1) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowners ... who allow members of the public to use them for the purposes of outdoor recreation ... 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.

RCW 4.24.210. 1

In short, landowners who open their land to the public for recreational ' '

purposes, free of charge,_ are generally not liable for unintentional injuries to such

users. However,:·the statute creates an exception where an injuredparty may

overcome this immunity by showing either "( 1) ·a fee for the use of the land [was]

charged; (2) the injuries were intentionally inflicted; or (3) the injuries were

sustaine~ by reason ofa known dangerous artificial latent condition for which no

1 RCW 4.24.210 has been modified since the time of Jewels's accident, but the provisions relevant to this case are unchanged. See LA ws OF 2012, ch. 15, § 1.

6 Jewels v. City of Bellingham, No. 90319-1

warning signs were posted." Davis, 144 Wn.2d at 616 (citing RCW 4.24.210(1),

(3)). Only this last exception is at issue in this case. All four elements (known,

dangerous, artificial, latent) must be present in the injury-causing condition for

liability to attach to the landowner. Davis, 144 Wn.2d at 616.

The lack of punctuation in the statute between the terms "known dangerous

artificial latent condition" has caused conflicting interpretations in the Court of

Appeals. RCW 4.24.210(4)(a). For example, in Gaeta, the Court of Appeals wrote

that('[i]r1 (Jrderto <~onstitute a 'known' dangerous condition for purposes of the

recreational use act, the landowner must have actual as opposed to constructive

knowledge that a condition is dangerous." Gaeta v. Seattle City Light, 54 Wn. App.

603, 609, 774 P.2d 1255 (1989) (citing Morgan v. United States, 709 F.2d 580,

583-84 (9th . .. Cir. 1983)). ' . . This analysis would interpret the term "known" as

modi(ying "dangerous," not "condition." Other Court of Appeals decisions cited

this . analysis in their opinions as well. 2 ., , \ '

But in our own analysis interpreting the statutory immunity, we came to a .· .. '

different conclusion. In Van Di~zter, the plaintiff was playing at a park where there

· 'iSee Cultee v. City of Tacoma, 95 Wri. App. ·sos, Sl 7, 977 P.2d is (1999); Ertl v. Parks & Recreation Comm 'n, 76 Wn. App. 110, l lS, 882 P.2d 118S (1994); Tabakv. State, 73 Wn. App: 691, 696, 870 P..2& 1014 ( 1994). Gaeta and these subsequent cases also all cite Morgan for the rule that a condition is not "known" unless the landowner actually knows that it is dangerous and latent. But this is not the rule from li.1organ. Rather, the Ninth Circuit held only that a lando\vner must have actual knowledge that the condition exists and need not inspect his property to discover.hidden dangers. Morgan, 7.09 F.2d at S83-84.

7 Jewels v. City a/Bellingham, No. 90319-1

was a caterpillar·-shaped piece of playground equipment. As the plaintiff was

running, he ran into one of the antennae that protruded from the caterpillar,

injuring his eye. We reje.cted the plaintiffs argument th~t the term "latent" . .

modifies ''dangerous,'' such that an obvious condition could mask a latent danger.

Van Dinter, 121 Wti.2d at 46. Rather, we held that all four terms (known,

dangerous, artificial, latent) modify "condition," not one another. Van Dinter, 121

;, \Nn.2d at 46. Our holding in Van Dinter necessarily rejected the analysis from . . Gaeta, Cul tee, ENZ, and Tabak that implied any of the four terms modified one

another. 3 C1llte~ v. Ci~v ofTac:oma, 95 Wn. App'. 50.5, 977 P.2d 15 (1999); Ertl v.

!)arks. & Recreation Comm 'n, 76 ·wn., App. l 10, .882 P.2d 1185 (1994); Tabak v.

State, 73 Wn. App. 691, 870 P.2d 1014 (1994).

Van . Dinter's ' reasoning . applies equally in this case. Here, the Court of .

Appeals conclude~ .that Jewels had failed to show that the City knew that the

injury~causing condit~on was dangerous. In other words, it concluded that "known"

~~odifies "dangerous" within the meaning of the recreational use statute. We

3 Cultee, Ertl, and Tabak--all decided after Van Dinter-cite both the language from Gaeta that implies. ''kr1own" modifies ''dangerous'' and the contradictory rule we announced in Van Dinter--that all four terms modify only "condition." And Gaeta itself rejected the argument that ''.latent" modified "dangerous," reasoning that "the statute properly interpreted would apply the term 'latent' [only] to the condition." Gaeta, 54 Wn. App. at 610. We disapprove of the analysis in these cases to the extent that they conflict with our holding today and Van Dinter- that all four terms (known, dangerous, artificial, latent) modify only "condition" and not one another.

8 Je111els v. City of Bellingham, No. 90319-1

necessarily foreclosed this argument in Van Dinter when we held that "latent" does

!1ot modify "dangerous," but rather all four terms modify "condition." There, we

n~asoned th~t if the legislatt1re had intended ''latenf' to modify "dangerous," it

would have r~ferred to '.'known artificial conditions having latent dangerous aspects.'' Van Dinter, 121 Wn.2d at 46. Similarly here, ifthe legislature had

intended "known" to modify "dangerous," as the Court of Appeals reasoned, it

would have referred to latent artificial conditions having known dangerous aspects.

But that is r1ot the language of the statute. Rather, the plain language of the

statutory immunity contains four adjectives (lmown, dangerous, artificial, latent)

and only one noun that tl10~e adjectives could modify (condition). Because there is

no punctuation or any other indication to the contrary, the only grammatically

logical interpretation is thateach of the four adjectives modify the noun

independent of one another. 4 Tellingly, the legislature has amended the recreational

land use statute since our decision in Van Dinter but has left the phrasing and

punctuation of the statutory immunity undisturbed, thus indicating legislative

approv~l of our interpretation of the statute.

We reaffirm that all four terms modify "condition" and disapprove of the

Court of Appeals' decisions to the extent that they reason to the contrary. Jewels

--;-----~-----·.-·---------:-H•O

. '1As we noted in. Van Dinte1:., interpreting all four terms to modify "condition" is also consistent with the legislative history. See Van Dinter, 121 Wn.2d at 45 n.2 . .' ··.· . .. .

9 Jewels v. City of Bellingham, No. 90319-1

offered sufficie.ntproof that the City knew the injury-causing condition existed. 5

The statute does not require him to show that the City knew that the condition was

dangerous: such a requirement would be contrary to the plain language of the

statute and our holding in Van Dinter.

"LATENT"

Although we reverse the Court of Appeals' reasoning in this case, we affirm

the trial court's grant of summary judgment in favor of the City because no issue of

rriatetial fact exists to show the condition was latent. Jewels argues to this court

that the injury-causing condition, which he defines as the "berm," also called the . . . ' 't.

water diverter) was not obvious as a matter of law and therefore there is a material

issue of fact precluding summary judgment. In his declaration, Jewels stated that

•the ground appeared to him to be "bare, flat pavement between the curb and speed

bump." CP at 92. He also submitted declarations from experts opining how speed

bumps are usually ·marked by warnings such as yellow paint, how speed bumps do

not usually span the entire roadway, and how water diverters and other

obstructions present hazards to bicycle traffic.

. An injury~causing condition is "latent" if it is "not readily apparent to the

recreational user." Va~ Dinter, 121 Wn.2d at 45. The condition itself, not the

5 Both parties agree that "known" under the recreational land use statute means actual knowledge, ' not .constructive . knowledge. .

10 Jewels v. City of Bellingham, No. 90319-1

danger it poses, must be latent. The dispositive question is whether the condition is

readily apparent to the general class of recreational users, not whether one user

might fail to discover it. Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550,

555--56, 872P.2d 524 (1994). In other words, what one "particular user sees or

does not see is immaterial." Widman v. Johnson, 81 Wn. App. 110, 114-15, 912

P.2d 1095 (1996). This is an objective inquiry. A brief review of our cases

;-,~' illustrates this definition and why there is no material issue of fact regarding

Iat'eri.cv. in thfs case. "

,For example, in Gaeta a motorcyclist injured hin~self driving over railroad

. tracks owned by the city. Running beside these railroad tracks was a groove

approximately two and a half inches in width, which allowed the wheels of a

·..'."mule'" . . . ,. to r-qn alongside. .. Gaeta, 54 Wn. App. at 605. The plaintiff drove on to the ,

tracks, and when he found these to be slippery, he attempted to cross them. As he

vyas. doing so, his wheel jammed into the mule groove next to the railroad track,

throwing him from his.bike and causing injury. Affirming the dismissal of the

plaintiffs case, the Court of Appeals held that the injury-causing condition (the

mule groov~ next to the railroad track) was not latent because it was obvious.

Gaeta, 54 Wn. App. at 610.

In Van Dinter, we held that the injury-causing condition in that case was not

latent. First, we defined the injury-causing condition as the proximity of the

11 Jewels v. City ofBellingham, No. 90319-1

('.a~erpUlar-·shaped playground equipment in relation to the grassyarea of the park.

The. plaintiff argued that he neither saw the caterpillar, nor did he appreciate the

danger that the caterpillar's proximity to grassy area may have posed to him. The

~;ity, he argued, should have increased the border area surrounding the caterpillar to

further separate the caterpillar from the rest of the park. We held that the condition

was not latent, expressly approving of Gaeta's analysis, writing that it "illustrates

'~t rthe proper interpretation of 'latent' in RCW 4.24.210." 6 Van Dinter, 121 Wn.2d at

46: We also rejected the plaintiffs argument there was a factual question for the

jury and affirmed summary judgment in favor of the city .

. In Tennyson, the plaintiff injured himselfwhile riding his motorcycle off

road on land opened for recreational use. The plaintiff fell do,wn a sharp drop-off

on the back side of a gravel mound. He had ridden his motorcycle over the same

gravel mound 14 rnonths earlier, when the drop off did not exist. Since that time, ,'. ,' : '"

the landowner had excavated over one-half of the far side of the mound. On the

day of the accident, the plaintiff rode up the mound, reached the summit, and y ••• • ' • • •

unexpectedly . ' tumbled. . down . the excavated side. The Court of Appeals, applying .

m1~·holdi~gj11 Viin Dinter, held that the.injury-causing condition (the dirt mound,

including .the excavated drop-off on the far side) was not latent. Although it ,. I '

----.-------------- . . ' -

6 As noted above, however, we did reject Gaeta's statutory analysis to the extent that it interpreted "known" as modifying "dangerous."

'12 Jewels v. City of Bellingham, No. 90319-1

recognized that the plaintiff did not, and could not from his vantage point, see the

precipitous drop o±I,'the court concluded that the "excavation was in plain view

and readily apparent to .anyone who examined the gravel mound as a whole."

Te;myson, 73 Wn:·Ap11. at 555-56 (emphasis added}. , , . Finally,'1n ~~winehdrt v. Ctty of Spokane, i45 Wn. App. 836, 187 P.3d 345

(2008), the plaintiff was injured when he went down a large playground slide. At

., ~~·the bottom was a containment area filled with wood chip material meant to cushion

the landing of those exiting the slide. Some of this material had become displaced

from repeated landings. The plaintiff went down the slide and landed on the

exposed, hard ground, injuring his spine. The Court of Appeals accepted the

plaintiff's definition of the injury-causing condition as insufficiently and

improperly ·.. ' maintained . fill material . at the bottom of the slide. But it concluded that

the condition was notlatent: park user.s were able to determine whether the wood

chips had been displaced by simply looking at the appearance and feel of the

fnaterial. And most significantly, the plaintiff introduced a photograph taken at the

slide's exit meant to reveal the poor condition of the wood chips. As the Court of

Appeals aptly noted, this "seemingly acknowledge[s] , ' ' ' . that the condition of the

wood chips was visible and obvious at the time of the accident or such a condition

could not have been captured by a photograph. An obvious defect cannot be ..

latent." Swineharti . 145 ' Wn. App. at 852 (citing Tabak, 73 Wn. App. at 698). ' .

13 Jewels v. City ofBell_ingham, No. 90319-1

From these cases, we derive the following principles on latency: if an

ordinary recreational tiser standing near the injury-causing condition could see it

by observation, without the need to uncover or manipulate the surrounding area,

the condition is obvious (not latent) as a matter of law. The latency of the condition

is riot based on the particular activity the recreational user is engaged in or the

particular user's experience with the area from earlier visits or expertise in the

kC specific recreational activity.

Applying these principles, we affirm the trial court's conclusion that no

material issue. of fact exists re.garding latency in this case. Jewels asserted that the

ground . . . appeared . to him to be bare and flat. But latency is viewed objectively, and

what a particular recreational user saw, believed, or thought he saw is immaterial.

From our review of the photographs in the record, we conclude that any person

could st~nd near the water diverter and see it. T_his water diverter, which is in

essence a smaller speed bump, approximately two inches in height, is about an inch

lowerthan the speed bump proper. Even if we were to define the condition as the

speed bump in prox.imity to the cutout and the water diverter, each component of

the condition is obvious. If each component of the condition is obvious, so is the

condition itself. \Ve note that the City was able to walk up to the area and

photograph it without any need to unclose or uncover the condition. Like

Swinehart, the fact that the condition can be easily photographed is an

14 Je~els v. City of B~llingham, No. 90319-1

acknowledgment . . . that the condition is obvious. ' . Although we agree with the trial

cqurt that by later painting the water diverter the City made the condition more

qbvious, that does not mean that the condition was latent before. Because no issue

of material fact exists on the latency element, we affirm the trial court's grant of

summary judgment in favor of the City.

CONCLUSION

ffe} For liability to attach to a landowner under Washington's recreational land

use statute, the defendant must have actual knowledge that the condition exists; the

defendant does not need to know that the condition is dangerous. The condition

must also objectively be dangerous, artificial, and latent All four elements in RCW

4.2A.210(4)(a) modify the term "condition," not one another. In this case, there is

no dispute that the City had knowledge of the injury-causing condition and that the ' ' '

condition was artificial. However, because there is no issue of material fact as to

whether the condition was latent, we affirm summary judgment in favor of the City

15 Jewels v. City of Bellingham, No. 90319-1

and reverse the opinion of the Court of Appeals.

WE CONCUR:

16 Jeivels v. City of Bellingham, No. 90319-1 · (Gordon McCloud, J., dissenting)

No. 90319-1

GORDON McCLOUD (dissenting)-! agree with much of the majority_

opinion. I agree that the adjectives in the recreational land use statute ("known,"

"dangerous," "artificial," and "latent"), RCW 4.24.210, modify the term "condition"

and not one another. Majority at 2. And I agree with much of what the majority

says about the issue of latency.

I disagree with the majority's ultimate holding, however, because it depends

on a definition of the "general class of recreational users" that is too restrictive.

Majority at 11. I therefore conclude that Steven Jewels has created a genuine issue

of material fact as to latency. I also conclude that he has created a genuine issue of

material fact as to dangerousness. Accordingly, I would reverse the Court of

Appeals.

An injury-causing condition is "latent" for purposes of the recreational use

statute if it is "not readily apparent to the recreational user." Van Dinter v. City of

1 · Jewels v. City of Bellingham, No. 90319-1 · (Gordon McCloud, J., dissenting)

Kennewick, 121 Wn.2d 38, 45, 846 P.2d 522 (1993). The majority is correct that

this is an objective inquiry; a condition is not latent merely because the plaintiff

didn't see it or failed to appreciate its dangerousness. Id. at 45-46; majority at 11.

Instead, as the majority correctly notes, "The dispositive question is whether the

condition is readily apparent to the general class of recreational users." Majority at

11 (emphasis added); Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 924,

969 P.2d 75 (1998).

The majority, however, uses an overly restrictive definition of the "general

class of recreational users." Majority at 11. The majority limits this class to

"ordinary recreational user[s] standing near the injury-causing condition." Id. at 14

(emphasis added). It thereby excludes bicyclists like Jewels from the class of

recreational users whose perspective matters to the latency inquiry.

In my view, this conflicts with our precedent on the recreational land use

statute. In Ravenscroft, the plaintiff was injured while riding in a boat on Long Lake.

136 Wn.2d at 916. The boat struck some submerged tree stumps, and the impact

caused the motor to flip up into the boat and strike the plaintiff. Id. at 915. This

court held that a jury could find the submerged stumps were latent because the

evidence showed that ( 1) the pilot of the plaintiff's boat failed to see the stumps and

(2) other boaters had also hit the stumps. Id. at 925.

2 , Jewels v. City of Bellingham, No. 903'19-l · (Gordon McCloud, J., dissenting)

Of significance to this case, the Ravenscroft court did not ask whether the

stumps would have been readily apparent to someone swimming near them. Instead,

our decision relies on the assumption that the plaintiff-a boater-fell within the

general class of Long Lake's recreational users. 1

Similarly, there can be no question here that Jewels falls within the general

class of recreational users who visit Cornwall Parle He was injured while riding a

bicycle through the park on the right side of the public road, just as traffic laws

dictate he must. See RCW 46.61. 770(1) ("Every person operating a bicycle upon a

roadway at a rate of speed less than the normal flow of traffic at the particular time

and place shall ride as near to the right side of the right through lane as is safe.").

No evidence suggests that he was riding at an unusual speed or in an otherwise

unusual manner.

Because I believe that Jewels falls within the general class of recreational

users, I also disagree with the majority's assertion that Jewels' perception is

"immaterial" to the latency determination. Majority at 14. Contrary to the

majority's implication, Jewels does not argue that the water diverter was latent solely

1 To the extent that this conflicts with the reasoning in Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550, 872 P.2d 524 (1994), on which the majority relies, I would adhere to this court's precedent.

3 · Jewels v. City of Bellingham, No. 903.19-1 · (Gordon McCloud, J., dissenting)

from his unique perspective. See id. ("what a particular recreational user saw,

believed, or thought he saw is immaterial"). Instead, he argues that the water diverter

was latent from the perspective of bicyclists in general. 2

To be sure, Jewels does provide his own declaration that although he looked

at the ground where he intended to ride around the second speed bump, that ground

appeared to be "bare, flat pavement between the curb and speed bump." Clerk's

Papers (CP) at 92. But that statement is more than an assertion about what Jewels,

in particular, saw. It is also evidence that the unpainted water diverter was not

readily apparent to bicyclists in general.

More importantly, Jewels' statement is supported by the photographs that the

city of Bellingham (City) submitted. Despite the City's characterization of the water

diverter as "black" and therefore readily distinguishable from the gray concrete

surrounding it, CP at 16-1 7, the photographs depict the unpainted asphalt as only

slightly darker than the surrounding concrete. Based on this objective evidence, a

2 This distinguishes Jewels' case from both Van Dinter, 121 Wn.2d at 45, and Gaeta v. Seattle City Light, 54 Wn. App. 603, 610-11, 774 P.2d 1255 (1989), on which the majority relies for its holding on latency. See majority at 11-12. In both Van Dinter and Gaeta, the plaintiffs argued that a patent injury-causing condition posed a latent danger. Van Dinter, 121 Wn.2d at 45; Gaeta, 54 Wn. App. at 610. Both courts held that the recreational land use statute bars relief in that circumstance because the term "latent" in the statute modifies "condition" and not "danger." Van Dinter, 121 Wn.2d at 45; Gaeta, 54 Wn. App. at 610.

4 Jewels v. City ofBellingham, No. 90319-1 (Gordon McCloud, J., dissenting)

jury could reasonably find that the asphalt water diverter (and thus its proximity to

the curb cutout) was not "readily apparent" to the average recreational bicyclist. Van

Dinter, 121 Wn.2d at 45. 3

For those reasons, I would hold that the City is not entitled to summary

judgment on the question of latency.

I would also hold that the City is not entitled to summary judgment on the

question of dangerousness. This court has not interpreted the term "dangerous" in

the recreational use statute, but the Court of Appeals has held that a "dangerous"

condition is one "that poses an unreasonable risk of harm." Gaeta v. Seattle City

Light, 54 Wn. App. 603, 609, 774 P.2d 1255 (1989) (citing WILLIAM L. PROSSER,

HANDBOOK ON THE LAW OF TORTS§ 31 (4th ed. 1971)); Cultee v. City of Tacoma,

95 Wn. App. 505, 518, 977 P.2d 15 (1999).

3 This distinguishes Jewels' case from Swinehart v. City of Spokane, 145 Wn. App. 836, 187 P .3d 345 (2008), on which the majority relies. See majority at 13-14. In Swinehart, the plaintiffs submitted photographs showing the alleged injury-causing condition: the displacement of cushioning wood chips beneath a city park slide. 145 Wn. App. at 852. They then argued that '"[t]he photographs ... reveal[ed] a poorly maintained surface at the slide exit[,] and no reasonable juror could refute this evidence."' Id. (emphasis added) (first alteration in original). In other words, the plaintiffs argued that the injury-causing condition was readily apparent from the photographs. The Court of Appeals held that the plaintiffs thereby "seemingly acknowledge that the condition of the wood chips was visible and obvious at the time of the accident." Id. In this case, Jewels does not argue that the photographs prove the existence of the injury-causing condition; rather, he argues that they reveal the condition's latency. 5 ·Jewels v. City of Bellingham, No. 903.19-1 (Gordon McCloud, J., dissenting)

In support of his argument that the water diverter between the speed bump

and the cutout was dangerous, Jewels offered a declaration of Jim Couch (a

professional bicyclist) and a report by Edward Stevens (an engineer). The Couch

declaration stated that Couch has "ridden all over the state of Washington through

[his] many years as a competitive and recreational cyclist, and as a group ride

leader," and that in his opinion "[s]peed bumps are usually marked by warnings on

the roadway such as yellow paint ... to give people notice [and] most ... do not

take up the entire roadway." CP at 108. Citing a study from San Jose, California,

Stevens reported that obstructions like the water diverter-"abrupt ... [b Jumps," as

opposed to "gradual . . . humps"-have been shown to be "particularly extra

hazardous for bicycle traffic." CP at 80-81. Stevens also opined that "[t]he City of

Bellingham installed an extra hazardous drainage feature across the Cornwall Park

Road[, which] was known to cause loss of control for bicycles, light motorcycles,

and was also recognized by the industry to cause operational problems for

emergency vehicles." CP at 81.

The City argues that Stevens' report is inadmissible because it is unsworn.

The City is correct that the report was not attached to a declaration, by Stevens,

attesting to the truth of its contents. And it is true that unauthenticated evidence is

inadmissible in opposition of summary judgment. SentinelC3, Inc. v. Hunt, 181

6 ·Jewels v. City of Bellingham, No. 903.19-1 (Gordon McCloud, J., dissenting)

Wn.2d 127, 141, 331 P.3d 40 (2014). But the City did not object to the admission

of Stevens' report on that basis in the trial court. Instead, it objected that the report

was irrelevant because it was "based on the alleged standards for speed bumps in a

city street [, while] ... the alleged accident occurred on a park access road which is

not a platted, designed City of Bellingham street." CP at 11 7. Because the City did

not object that the report was unswom, Jewels was afforded no opportunity to correct

the error. I would therefore decline to address this unpreserved error now. See Rules

of Appellate Procedure (RAP) 2.5.

The City also argues that Couch's declaration is inadmissible under Rules of

Evidence (ER) 702 because "it offers testimony on areas outside [Couch's] expertise

(park construction) and speculates on why Plaintiff made certain decisions." City of

Bellingham's Suppl. Br. at 20.

This, however, is not an accurate characterization. In his declaration, Couch

states that "[s]peed bumps are usually marked by warnings on the roadway such as

yellow paint and/or through signage to give people notice." CP at 108. The basis

for that observation is Couch's 30 years "in bicycle riding and coaching," CP at

107-experience sufficient to qualify him as an expert in the kinds of speed bumps

that bicyclists typically encounter. See ER 702 (witness may be "qualified as an

expert by ... experience"). Couch also opined that "it was reasonable for Mr. Jewels

7 · Jewels v. City of Bellingham, No. 903.19-1 · (Gordon McCloud, J., dissenting)

to believe that [the site of the accident] was a typical speed bump, particularly when

the first speed bump he came to in the park fit that common pattern." CP at 109.

This was not, as the City asserts, "speculat[ion]" about Jewels' decision to ride over

the water diverter. City of Bellingham's Suppl. Br. at 20. Rather, it was an opinion

about what bicyclists generally do and expect. As such, it was admissible under ER

702. See State v. Francisco, 148 Wn. App. 168, 177, 199 P.3d 478 (2009) (detective

allowed to testify, as expert, that "drug users generally do not give away drugs").

The trial court correctly admitted both Stevens' and Couch's expert testimony.

That testimony is sufficient to create a genuine issue of material fact as to whether

the water diverter in proximity to the curb cutout posed an unreasonable risk of harm.

Thus, I would hold that the City is not entitled to summary judgment on the issue of

dangerousness.

The majority is correct that a plaintiff contesting recreational land use

immunity need not show that the defendant knew the injury-causing condition was

dangerous and latent. But the majority errs by limiting the class of general

recreational users to those standing near the injury-causing condition.

8 , Jewels v. City ofBellingham, No. 903°19-1 (Gordon McCloud, J., dissenting)

Applying a broader definition of this general class, I conclude that Jewels has

created genuine issues of fact as to latency and dangerousness. I would therefore

reverse the Court of Appeals and remand to the trial court.

9 ·Jewels v. City of Bellingham, No. 903.19-1 (Gordon McCloud, J., dissenting)