IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
-r- STEVEN JEWELS, NO. 69358-1-1
i i r' Appellant, DIVISION ONE ro
enrol— v. 3
PUBLISHED OPINION ** -Ht—1 CITY OF BELLINGHAM, O —
•—4
Respondent. FILED: April 21, 2014
Leach, J. — Steven Jewels appeals trial court orders granting summary
judgment to the City of Bellingham (City) under the recreational land use statute,
RCW 4.24.210, and denying his motion for reconsideration. Jewels claims that
the unpainted extension of a speed bump that he hit while riding his bicycle was
a "known dangerous artificial latent condition" under the statute. Because Jewels
fails to show that the City had actual knowledge of the injury-causing condition,
we affirm. S0:TA ECOFOURT FACTS
Cornwall Park is a park open to the public for recreational use without
charge. The City owns and maintains the park. On June 30, 2008, while riding
his bicycle on a road located in Cornwall Park, Steven Jewels rode over a speed
bump at a velocity sufficient to dislodge his water bottle. As he approached a NO. 69358-1-1/2
second speed bump, instead of slowing for it, he attempted to ride around it. As
he did this, he encountered an asphalt berm, one to two inches high, that was
connected to the second speed bump. The asphalt berm (also known as a water
diverter) channels water into a cutout portion of the curb, facilitating drainage off
the road. On the date of the accident, the asphalt berm was black: darker in
color than the road itself but unpainted. When Jewels tried to bypass the speed
bump by going through what he believed was a gap between the speed bump
and the curb, the force of the front tire hitting the berm caused him to lose control
of his front wheel, which caught in the cutout portion of the curb. This sudden
stop threw Jewels from his bicycle and onto the asphalt and curb, broke his front
wheel, and caused him injury.
On April 12, 2011, Jewels filed a complaint for personal injuries and
damages against the City of Bellingham. The City moved for summary judgment,
claiming immunity under the recreational land use statute. The superior court
granted the City's motion for summary judgment, finding that the water diverter
did not create a known, dangerous, latent condition. On August 24, 2012, the
court denied Jewels's motion for reconsideration.
Jewels appeals. NO. 69358-1-1/3
STANDARD OF REVIEW
This court reviews an order of summary judgment de novo, performing the
same inquiry as the trial court.1
ANALYSIS
Jewels argues that the City cannot claim immunity under the recreational
land use statute because the water diverter was a "known dangerous artificial
latent condition for which warning signs have not been conspicuously posted."2
To establish a landowner's liability under this statute, a plaintiff must show that
each of the four elements—known, dangerous, artificial, and latent—was present
in the injury-causing condition.3 "If one of the four elements is not present, a
claim cannot survive summary judgment."4 Jewels claims that the injury-causing
condition was "clearly latent and deceptive and falls squarely within the statutory
exception."
The Washington Legislature enacted the recreational land use statute in
1967 to encourage private and public landowners to open recreation areas to the
public without fear of liability for unintentional injuries.5 This statute "changed the
1 Smith v. Safeco Ins. Co.. 150 Wn.2d 478, 483, 78 P.3d 1274 (2003) (citing Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002)). 2 Former RCW 4.24.210(4) (2003). 3 Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001). 4 Davis, 144Wn.2dat616. 5 Ertl v. Parks & Recreation Comm'n. 76 Wn. App. 110, 113, 882 P.2d 1185 (1994); Nauroth v. Spokane County, 121 Wn. App 389, 392, 88 P.3d 996 (2004). -3- NO. 69358-1-1/4
common law by altering an entrant's status from that of a trespasser, licensee, or
invitee to a new statutory classification of recreational user."6 This court
construes this statute strictly.7
RCW 4.24.210(1) states,
[A]ny public or private landowners ... in lawful possession and control of any lands .. . 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.
"This statute gives landowners immunity from liability unless (1) a fee is charged,
(2) the injury inflicted was intentional, or (3) the injury was caused by a known
dangerous artificial latent condition and no warning signs were posted."8 Jewels
bicycled as a recreational user through Cornwall Park, a public park that charges
no fee. Therefore, RCW 4.24.210, not the common law, controls here.
Washington courts have construed this statute to require that a plaintiff
establish actual knowledge, as opposed to constructive knowledge, that a
condition is dangerous.9 A plaintiff must '"come forward with evidentiary facts
6 Van Pinter v. City of Kennewick, 64 Wn. App. 930, 934-35, 827 P.2d 329 (1992). 7 Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 437, 824 P.2d 541 (1992). 8 Van Scoik v. Dep't of Natural Res., 149 Wn. App. 328, 333, 203 P.3d 389 (2009) (citing Davis, 144 Wn.2d at 616). 9 Gaeta v. Seattle City Light, 54 Wn. App. 603, 609, 774 P.2d 1255 (1989). -4- NO. 69358-1-1/5
from which a trier of fact could reasonably infer actual knowledge, by a
preponderance of the evidence.'"10 A plaintiff may rely upon circumstantial
evidence to establish actual knowledge.11 When considering whether the
condition is dangerous, the court examines "the specific object or instrumentality
that caused the injury, viewed in relation to other external circumstances in which
the instrumentality is situated or operates."12 Thus, the water diverter must be
viewed in the context of its proximity to the curb cutout to evaluate whether it was
a known, dangerous condition. Knowledge in this context would mean that the
City knew that the water diverter in proximity to the curb cutout posed a danger to
a cyclist choosing to avoid the speed bump to circumvent its speed-reducing
effect because riding over the diverter could cause a loss of control resulting in a
front wheel becoming trapped in the cutout, producing injury.
Jewels contends that this knowledge can be imputed to the City because it
was required to comply with the Manual on Uniform Traffic Control Devices for
Streets and Highways (MUTCD). The MUTCD applies to traffic control devices,
which it defines as "all signs, signals, markings, and other devices used to
regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway,
10 Nauroth, 121 Wn. App. at 393 (quoting Tabak v. State, 73 Wn. App. 691, 696, 870 P.2d 1014 (1994)). 11 Nauroth. 121 Wn. App. at 393. 12 Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 921, 969 P.2d 75(1998). -5- NO. 69358-1-1/6
pedestrian facility, or bikeway by authority of a public agency having
jurisdiction."13
The water diverter's purpose is to facilitate drainage; it was not designed
as a means for bicyclists to bypass the speed bump. We decline to adopt
Jewels's apparent theory that the City has a responsibility to design a safe way
for drivers and riders to deviate from the traveled roadway to avoid its own traffic
control measures. Because the injury-causing condition, the water diverter and
curb cut in close proximity, was not a traffic control device, the MUTCD
standards do not apply here, and we do not impute knowledge to the City from
them.14
Jewels also argues that the City had actual knowledge that the water
diverter was dangerous because the City created this condition. But to establish
that the water diverter with an adjacent curb cut was a known condition, Jewels
must show that the City knew of the condition and also knew that it was
dangerous and latent.15 The City maintains that it had no knowledge of any other
13 Fed. Highway Admin., U.S. Dep't of Transp., Manual on Uniform Traffic Control Devices for Streets and Highways, at 1-1 (2003 ed., rev. Nov. 2004). This is the edition that applied on the date of the accident. 14 The MUTCD applies only to public roads. Allemeier v. Univ. of Wash., 42 Wn. App. 465, 471, 712 P.2d 306 (1985). The MUTCD likely applies to the speed bump itself because the road was open to the public and the speed bump functions as a traffic control device. While the parties dispute whether the road is public or private, the issue is irrelevant because the water diverter is not a traffic control device. 15Ertl, 76 Wn. App. at 115. -6- NO. 69358-1-1/7
accidents involving the water diverter and the curb cutout. Jewels presents no
evidence to refute the City's assertion that it had no actual knowledge of a
dangerous, latent condition. The mere fact that an unfortunate event occurs,
without more, does not demonstrate knowledge of latent danger.
Where courts have found that a landowner had knowledge of the injury-
causing condition, there was evidence that the landowners knew that the condition was dangerous before the condition caused the plaintiff's injury.16 While Jewels asserts that the City knew that the water diverter needed to be
visible because it issued a work order to paint it after his accident, this evidence
of subsequent remedial measures is inadmissible under ER 407. Moreover, it does not establish the City's knowledge of any dangerous condition before
Jewels's accident.
The dissent assumes that the unpainted diverter alone was a dangerous
condition. This position ignores the role of the curb cut and its proximity to the
diverter. In other words, the dissent focuses exclusively upon the diverter and
fails to examine "the specific object or instrumentality that caused the injury,
viewed in relation to other external circumstances in which the instrumentality is
situated or operates,"17 as required by the applicable case law.
16 Cultee v. Citv of Tacoma, 95 Wn. App. 505, 517-18, 977 P.2d 15 (1999); see also Tabak, 73 Wn. App. at 696-97. 17 Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 921, 969 P.2d 75(1998). -7- NO. 69358-1-1/8
Because Jewels cannot establish actual knowledge, his claim fails, and
we need not reach the issue of whether the condition was latent or dangerous.18
CONCLUSION
Because the recreational land use statute applies to this case and Jewels
fails to demonstrate the City's actual knowledge of any dangerous, latent
condition, we affirm.
Y^Z0t^<6^ WE CONCUR:
J.
18 See Ertt, 76 Wn. App. at 115. -8- Jewels v. City of Bellinqham, 69358-1-1
Becker, J. (dissenting) — I respectfully dissent from the majority's
conclusion that Steven Jewels' negligence suit against the City of Bellingham is
barred by the recreational use immunity statute, RCW 4.24.210. As the majority
opinion interprets the requirement of actual knowledge, a landowner will never be
liable for injury on recreational land until a previous accident or complaint shows
a known condition is dangerous. This is not the law. Actual knowledge exists
where, as here, the landowner itself creates the dangerous condition.
The southern access road into Cornwall Park, a city park in Bellingham,
runs slightly downhill into a parking lot about 1,000 feet from the entrance gate.
In 2007, the City of Bellingham placed a series of asphalt speed bumps
lengthwise across the road as a traffic calming measure. The speed bumps were
painted bright yellow. As is typical of such speed bumps, there was a gap of a
little more than a foot between each end of the speed bump and the adjacent
curb.
At some point after installing the speed bumps, the City decided to
address a drainage issue by diverting water on the road off to the right side
through a hole in the curb. The City accomplished this by extending one end of
the second speed bump to the curb, closing the gap. The second speed bump,
about 600 feet in from the main road, is in a location shaded by overhanging tree
branches. Inexplicably, the City did not paint the extension yellow to match the
rest of the speed bump. No. 69358-1-1/2 (dissent)
On June 30, 2008, cyclist Steven Jewels rode into the southern entrance
to the park. Traveling at an appropriate speed, he went over the first speed
bump and was jarred by the abruptness of the impact. As he approached the
second speed bump, he did not see the unpainted extension. He steered his
bicycle rightward, toward the perceived gap, to avoid having to go over the speed
bump. When he rode into the unpainted section, the force pushed his front
wheel sideways into the curb cut. Jewels was launched off of his bicycle and
landed violently on the cement road.
The next day, July 1, 2008, the City issued a work order for Cornwall Park
entitled "Safety Hazard." The work to be performed was described as follows:
"The 2d speedbump in Cornwall South was only partly painted. A section next to
the shoulder area was not painted and a bicyclist did not see that it was part of
the speed bump. He hit it and took a nasty fall from his bike. Please paint entire
speed bump and make it visible." As a result of the work order, the unpainted
section was painted yellow like the rest of the speed bump.
Entrance into Cornwall Park is free, and there were no warning signs
posted. Therefore, the only issue under the statute is whether Jewels' injuries
were sustained by reason of a known dangerous artificial latent condition. RCW
4.24.210; Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001).
Recreational use immunity is an affirmative defense that must be
established by the landowner. Camicia v. Howard S. Wright Constr. Co.,
Wn.2d , 317 P.3d 987, 991 (2014). If there are material issues of fact that
prevent the landowner's immunityfrom being decided on summary judgment, the No. 69358-1-1/3 (dissent)
trial court must submit them to the finder of fact under appropriate instructions.
Camicia, 317 P.3d at 991 & n.4. To be granted immunity on summary judgment,
the City had to prove beyond reasonable dispute one of the following facts about
the unpainted speed bump extension: it was not known, or it was not dangerous,
or it was not artificial, or it was not latent. The City agrees the speed bump
extension was artificial but contends it was not known, or dangerous, or latent.
The City would have us hold that the speed bump extension was visible
and therefore not latent. The majority wisely does not accept this contention.
The City relies on a declaration by an employee who states that the extension
was visible, but the employee's observations were made after the extension was
painted. Photographs in the record similarly fall short of proving that the color of
the extension, before it was painted, contrasted sufficiently with the color of the
roadway to make it visible. The existence of a material issue of fact as to
visibility is shown by Jewels' declaration that before the paint job, there appeared
to be "bare, flat pavement" between the speed bump and the curb. Accordingly,
it cannot be said as a matter of law that the unpainted extension was "in plain
view," Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550, 872 P.2d 524,
555-56, review denied, 124Wn.2d 1029 (1994), or that it was "obvious," Gaeta v.
Seattle City Light, 54 Wn. App. 603, 610, 774 P.2d 1255, review denied, 113
Wn.2d 1020 (1989). For purposes of summary judgment, we must assume that
before it was painted, the speed bump extension was a latent condition.
The majority opinion affirms the order of dismissal on the ground that the
City lacked "actual knowledge of the injury-causing condition." Majority at 1. The No. 69358-1-1/4 (dissent)
majority and the City rely on the fact that Jewels was the first person to report a
problem with the obstacle. The City "had no knowledge of any other accidents
involving the water diverter and the curb cutout." Majority at 6-7. The majority
opinion holds, in other words, that a landowner who creates a dangerous latent
condition gets to cause one free accident before liability arises.
The flaw in the majority's reasoning is illustrated by the example of a
partially covered well on range land. When the statute was being debated on the
Senate floor, a senator used the example of the well to explain the meaning of
"known" and "latent." Van Pinter v. City of Kennewick, 121 Wn.2d 38, 45 & n.2,
846 P.2d 522 (1993). If a prior owner digs a well but fails to cover it properly and
the present landowner does not know about it, the statute immunizes the present
owner from liability. Van Pinter, 121 Wn.2d at 45. But what if the present
landowner does know about the open well? What if it is the present owner who
digs the well and fails to cover it properly? The answer is that liability does arise
under the statute—and it arises with respect to the first person who falls into the
well.
The requirement of actual knowledge protects the landowner from the
common law standard of "knows or should know," under which the landowner's
duty to an invitee includes the affirmative duty to inspect the premises and
discover dangerous conditions. Morgan v. U.S., 709 F.2d 580, 583 (9th Cir.
1983). In Morgan, an irrigation pump shorted and discharged electricity into a
recreational lake, and a canoer was electrocuted. There was no liability under
the statute because the owner did not have actual knowledge that the irrigation No. 69358-1-1/5 (dissent)
pump was malfunctioning. Even though a careful inspection would have
revealed a code violation that created a potentially dangerous condition, the
essence of the plaintiff's argument was that the owner "should have known" and
would have known if a reasonable inspection had been made. Morgan, 709 F.2d
at 584. Similarly, where an old set of stairs in a public park was rendered
dangerous by vandalism, lack of maintenance, accumulated debris, and the
effects of weather, there was no liability under the statute to a person who fell
down the stairs; the park rangers seldom visited that area of the park, and it was
not shown that they had actual knowledge of the dangerous condition. Nauroth
v. Spokane County, 121 Wn. App. 389, 393-94, 88 P.3d 996 (2004).
Here, the City did not need to inspect Cornwall Park to know about the
condition. The danger created by the invisible barrier did not result from the
ravages of time or the activities of third parties. The condition was created by the
City itself. See, e^., Batten v. S. Seattle Water Co., 65 Wn.2d 547, 551, 398
P.2d 719 (1965) (where a municipal corporation creates the dangerous condition,
no notice is required).
The majority attributes no significance to the fact that the City created the
obstacle in the roadway. "Knowledge in this context would mean that the City
knew that the water diverter in proximity to the curb cutout posed a danger to a
cyclist choosing to avoid the speed bump to circumvent its speed-reducing effect
because riding over the diverter could cause a loss of control resulting in a front
wheel becoming trapped in the cutout, producing injury." Majority at 5. This
statement of what it means to have actual knowledge is inconsistent with the No. 69358-1-1/6 (dissent)
cases discussed above. Under the majority's analysis, even if the landowner in
Morgan had known there was electricity in the lake, that landowner would have
no liability until a previous electrocution had demonstrated that electrified water is
dangerous. Even if the park rangers in Nauroth had learned the stairs were
slippery by using them, their employer would have no liability until expressly
advised that slippery stairs are dangerous. And even if a landowner digs a well
and leaves it uncovered, there can no liability unless the landowner has learned
from a previous complaint that an uncovered well is dangerous.
Under the majority's analysis, even though the City knew it had placed a
fixed and invisible obstacle in the roadway, no liability could arise unless the City
had learned from previous complaints that fixed and invisible obstacles in a
roadway are dangerous. In short, the majority has taken a sensible immunity
statute and transformed it into a rule of no liability until the second accident.
The majority writes that we construe the statute "strictly," citing Matthews
v. Elk Pioneer Pays, 64 Wn. App. 433, 437, 824 P.2d 541, review denied. 119
Wn.2d 1011 (1992). Majority at 4. It is not clear what significance this statement
has, if any, in the majority's analysis. Possibly, the majority believes that strict
construction favors landowners. If so, the majority is mistaken. The principle of
construction mentioned in Matthews is that a statute is strictly construed where it
is "in derogation of the common law" and no intent to change the common law
will be found unless the legislature has expressed that intent with clarity.
Matthews, 64 Wn. App. at 437. If we actually did construe the recreational use
immunity statute strictly because it is in derogation of the common law, we would No. 69358-1-1/7 (dissent)
regard the statute skeptically and strive to maintain, to the extent possible, the
modern common law concepts that treat invitees more favorably than the statute
does.
However, I do not believe the principle of strict construction has any
application to RCW 4.24.210. The statute was clearly intended to modify the
common law. Van Pinter, 121 Wn.2d at 41-42; Pavis, 144 Wn.2d at 615-16;
Camicia, 317 P.3d at 992. The rule that statutes in derogation of the common
law must be strictly construed has been criticized because if viewed as a
presumption against changing the common law, it tends to defeat the legislative
purpose, which typically is to remedy perceived defects in the common law.
Lutheran Pay Care v. Snohomish County, 119 Wn.2d 91, 102, 829 P.2d 746
(1992), cert, denied, 506 U.S. 1079 (1993). Viewed in this light, the recreational
use immunity statute contains no mandate for either liberal or strict construction,
in favor of landowners' immunity or against it. It is simply a statute, to be applied
to situations encompassed by its terms.
Because this case should be remanded for trial, it is also important to
mention that the City is mistaken when it asserts that RCW 4.24.210 is the
source of its duty to users of recreational lands. Br. of Respondent at 23, 34.
Immunity and duty, though often confused with each other, are distinct concepts.
Gilliam v. Pep't of Social & Health Servs.. 89 Wn. App. 569, 577-78, 950 P.2d 20,
review denied, 135Wn.2d 1015(1998). RCW 4.24.210 is a not a source of duty;
it is a source of immunity, an affirmative defense that shields the landowner from No. 69358-1-1/8 (dissent)
liability that might otherwise exist. See RCW 4.24.200 (purpose of statute is to
limit liability); Camicia, 317 P.3d at 991.
In a jury trial, the instructions should first permit the jury to decide whether
the landowner has proved the facts necessary for immunity. Ifthe jury decides
that the landowner has not proved immunity, the instructions should permit the
jury to proceed to decide the City's liability under the common law of negligence:
duty, breach, causation, and damages. Jewels presents two theories of common
law liability. One is that the City as a landowner breached a duty owed to him as
an invitee. Egede-Nissen v. Crystal Mountain. Inc., 93 Wn.2d 127, 606 P.2d
1214 (1980). The other is that the City breached its duty to build and maintain its
roadways in a condition that is reasonably safe for ordinary travel. Keller v. City
of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002).1
Because there are genuine issues of material fact concerning the City's
immunity under RCW 4.24.210, I would reverse the order of summary judgment
and remand for trial.
B?J$ae
1 Jewels submitted two declarations of expert witnesses. One explained that speed bumps (abrupt) as opposed to speed humps (gradual) are considered extrahazardous for bicycles and that the purpose of a gap is "to allow bicyclists to traverse through the speed bump area without encountering it." The trial court denied the City's motion to strike these declarations.