Tennyson v. Plum Creek Timber Co.

872 P.2d 524, 73 Wash. App. 550, 1994 Wash. App. LEXIS 137

• Court: Court of Appeals of Washington
• Decided: April 4, 1994
• Docket: 32262-1-I
• Status: Published

Opinions

Coleman, J.

— Kevin Tennyson appeals the trial court’s grant of summary judgment in favor of Plum Creek Timber Co., C. Wyss & Son, Inc., Blue Dot Excavating, Inc., and Lumsden Logging, Inc., "the contractors”. Tennyson contends that (1) the altered gravel mound was "latent” as a matter of law under RCW 4.24.210,¹ (2) the contractors may not claim immunity under RCW 4.24.210, and (3) the completion and acceptance doctrine does not relieve the contractors from liability. We affirm.²

On August 4,1991, Tennyson was injured while riding his off-road motorcycle on land owned by Plum Creek Timber Company. The injuries occurred when Tennyson fell after driving his motorcycle up a large gravel mound that had been substantially excavated on the other side.

Tennyson had ridden his motorcycle on the same mound 14 months before the accident. He alleges that, as he approached the pile from the northwest, it appeared to be in the same condition as earlier. There was still a trail going up the northwest face of the mound. However, when he reached the top of the mound he realized something was different and he attempted to stop. His motorcycle came to a stop at the edge of the drop-off, but his front wheel broke through the edge and he tumbled down the hill, receiving serious personal injuries.

In the period between when Tennyson last rode over the mound and the day of the accident, over one-half of the mound had been removed on the southeast side. The result was a sharp drop-off from the top of the mound along the southeast side. There were no warning signs at the site; however, the drop-off was clearly visible from all other directions except the northwest direction from which Tennyson approached.

We first determine whether the excavation constituted a latent condition, thereby subjecting Plum Creek to liability under RCW 4.24.210.

The recreational land use statute, RCW 4.24.210, limits landowners’ liability for injuries occurring on their property. Landowners, however, remain liable for injuries caused by "a known dangerous artificial latent condition”. The purpose behind this limitation of liability is to encourage landowners to open their land to the public for recreational use. RCW 4.24.200.

In Van Dinter v. Kennewick, 64 Wn. App. 930, 931, 827 P.2d 329 (1992) (Van Dinter I), aff'd, 121 Wn.2d 38, 44, 846 P.2d 522 (1993) (Van Dinter II),³ the appellant was injured by a protruding metal antenna attached to a caterpillar-shaped piece of playground equipment. The appellant did not dispute that the antenna was obvious but argued that the City should have anticipated that "persons using the park in the expected manner—running and playing—would have their attention distracted and would not discover the obvious.” Van Dinter I, at 936.

Analyzing RCW 4.24.210, the court concluded that the landowner (the City of Kennewick) was immune from liability. The court distinguished landowners’ liability under the statute from landowners’ liability under the common law, stating:

[AJbsent RCW 4.24.210, the landowner is liable for injuries caused by an obvious condition of his land which he should expect the invitee will not discover because of the circumstances surrounding his use of the property. If we were also to interpret RCW 4.24.210 to provide for landowner liability for injuries caused by patent conditions which the owner should expect the user not to discover, we would effectively convert recreational users back to their common law status as public invitees. Such an interpretation would defeat the purpose of RCW 4.24.210[.]

(Italics ours.) Van Dinter I, at 935. Thus, the court concluded, the statute "immunizes the City from liability for injuries caused by obvious conditions, even if the plaintiff reasonably failed to discover the danger.” Van Dinter I, at 936.

In Van Dinter II, the Supreme Court affirmed the Court of Appeals, using a different analysis. The court determined that the scope of the "condition” for purposes of the statute included the caterpillar’s placement in the park — specifically, its proximity to the grassy area, as well as the antenna itself. Van Dinter v. Kennewick, 121 Wn.2d 38, 44, 846 P.2d 522 (1993).

The court then addressed Van Dinter’s argument that the City should be liable because although the condition itself was patent, the danger it posed was latent. The court rejected this argument, stating that "RCW 4.24.210 does not hold landowners potentially liable for patent conditions with latent dangers. The condition itself must be latent.” Van Dinter II, at 46. The court then concluded that although it may not have occurred to Van Dinter thát he could injure himself the way he did, the proximity of the caterpillar to the grassy area was obvious and the dangerous condition was therefore not latent. Van Dinter II, at 46, 47.

In Gaeta v. Seattle City Light, 54 Wn. App. 603, 774 P.2d 1255, review denied, 113 Wn.2d 1020 (1989), the appellant was riding his motorcycle on a roadway across the Diablo Dam that had specialized rail tracks on one side. He did not notice the tracks until he was between them. As he tried to steer his motorcycle out from between the tracks, his wheel lodged in a groove next to one of the tracks, and the appellant was injured. Gaeta, at 605-06. Despite the fact that the appellant had not noticed the tracks, the court concluded that the tracks were obvious. Gaeta, at 610.

Here, Tennyson claims that the excavation was not obvious to him and that "latency may well depend on the vantage point of the recreational user.” Reply Br. of Appellant, at 4. He also argues that this court can affirm the summary judgment only if it concludes that "no reasonable juror could conclude that Kevin Tennyson acted reasonably in riding up the well-marked path on the northwest slope of the gravel mound”.

We disagree. Under the case law, what a particular recreational user reasonably did or did not see has no bearing on whether a condition is latent. In Van Dinter I, the appellant’s primary argument was that the caterpillar’s antennae were not apparent to a person using the park in the expected manner, i.e., running and playing. Van Dinter I, at 936. Rejecting this argument, the court specifically stated that under RCW 4.24.210, landowners should not be held liable for injuries caused by undiscovered patent conditions. Van Dinter I, at 935. Although in Van Dinter II, the Supreme Court relied on a different analysis and did not reach the arguments addressed in Van Dinter I, the Supreme Court did not disagree with or overrule the Court of Appeals’ reasoning.

In addition, in Gaeta, the appellant did not discover the tracks until he was between them. Nonetheless, without concluding that the failure to notice the tracks was unreasonable, the court held that the condition was not latent. Gaeta, at 605, 610. Thus, as demonstrated by Van Dinter I and Gaeta, the reasonableness of a particular recreational user’s failure to discover a condition has no bearing on whether the condition is latent. We believe that 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.

In the present case, the excavation was considerably larger and more conspicuous than either the antennae in Van Dinter I or the tracks in Gaeta. As the trial court noted, the excavation was in plain view and readily apparent to anyone who examined the gravel mound as a whole. The fact that some recreational users, i.e., those who approach from the northwest and ride up the mound without checking the other side, might fail to discover the excavation does not render it latent within the meaning of the statute.

As the Van Dinter I court pointed out, allowing liability "for injuries caused by patent conditions which the owner should expect the user not to discover . . . would effectively convert recreational users back to their common law status as public invitees.” Van Dinter I, at 935, We believe that under the statute, a landowner is not required to anticipate the various ways that people might use its property, nor is a landowner required to predict possible scenarios in which a user might fail to see a patent condition. Thus, we conclude that the statute relieved Plum Creek from the burden of anticipating that someone might attempt to ride up the mound from the northwest side without examining it.⁴ The trial court correctly concluded that the excavation was not a latent condition within the meaning of the statute.

We next address whether the trial court erred by applying the immunity of Washington’s recreational land use statute to the contractors.

RCW 4.24.210 applies if a person in lawful possession and control of lands allows the public to use them for recreational purposes without charging a fee. Here, the contractors argue that they are entitled to immunity under the statute because they had lawful possession and control of the land at the time the alleged negligent acts occurred. We disagree.

In Labree v. Millville Mfg., Inc., 195 N.J. Super. 575, 481 A.2d 286 (1984), a subcontractor and a landowner entered into an agreement that allowed the subcontractor to excavate gravel and sand from the land "to the extent necessary” to construct a nearby road. The excavation resulted in the creation of a lake, which was used by the public for swimming. Several years after the excavation was completed, the plaintiff was injured when he dived into the water and hit his head on a submerged obstruction. Labree, at 579.

On appeal, the court interpreted a statute that immunized an "owner, lessee, or occupant” from liability for injuries incurred by recreational users of the land.⁵ The court noted the general rule that immunity is not favored in the law and that statutory grants of immunity should be strictly construed. The court then determined that the word "occupant” as used in the statute was intended "to provide immunity for an entity with a degree of permanence in the occupancy, not merely one who is using the property, as was the case with [the subcontractor].” The court also emphasized that the subcontractor’s license to use the land was limited to the purposes specified under the contract. Labree, at 583.

We believe that the reasoning in Labree applies to the present case. The "possession and control” requirement clearly indicates a broader, more permanent interest in the land than was present here. As in Labree, the agreements between Plum Creek and the contractors were for purposes of excavation. There is no evidence that the contractors’ activities went beyond those specified in their agreements.

In addition, as in Labree, these limited contractual rights expired when the contractors completed their work, which was many months prior to Tennyson’s accident.⁶ The record indicates that the contractors went onto the property for the purpose of fulfilling contractual obligations and left after these obligations were met. Under these circumstances, the contractors had no continuing authority to determine whether the land should be open to the public, and extending immunity to them would not further the purpose behind the act, which is to encourage landowners to open their land by limiting their liability. Therefore, we decline to extend immunity under RCW 4.24.210 to the contractors.

Finally, we address whether the contractors are immune from liability under the doctrine of completion and acceptance.

The completion and acceptance doctrine operates as a defense to contractor liability. The rule has been phrased as follows:

[W]here the work of an independent contractor is completed, turned over to, and accepted by, the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract!.]

andrews v. Del Guzzi, 56 Wn.2d 381, 388, 353 P.2d 422 (1960) (recognizing doctrine but finding contractors liable under exception for inherently or imminently dangerous conditions) (quoting 65 C.J.S. 613); Donaldson v. Jones, 188 Wash. 46, 50, 61 P.2d 1007 (1936) (recognizing the doctrine of completion and acceptance as the "well settled” general rule); Axland v. Pacific Heating Co., 159 Wash. 401, 406, 293 P. 466 (1930) (recognizing general rule but finding that condition fell within exception).

We recognize that the completion and acceptance doctrine has been criticized.⁷ However, in Washington the doctrine has continuing validity, and we conclude that it is applicable to the present case. In each instance, the contractor completed the work, which was then turned over and accepted by Plum Creek. This occurred substantially prior to the incident involving Tennyson. Accordingly, we affirm the trial court on this issue.⁸

The order of the trial court is affirmed.

Webster, C.J., concurs.

1 former RCW 4.24.210 provided in part:

"Any public or private landowners or others in lawful possession and control of any lands whether rural or urban, or water areas or channels and lands adjacent to such areas or channels, 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: . . . Provided . . . That nothing in this section shall prevent the liability of such 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!.]”

2 determining whether an order of summary judgment has been properly entered, this court engages in the same inquiry as the trial court and views all evidence in the light most favorable to the nonmoving party. Summary judgment will only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rhea v. Grandview Sch. Dist. JT 116-200, 39 Wn. App. 557, 559, 694 P.2d 666 (1985).

3 Throughout this opinion, we distinguish between the Court of Appeals’ decision and the Supreme Court’s decision by using the names Van Dinter I and Van Dinter n.

4 To support his claim that the excavation was latent, Tennyson analogizes the excavation to a pit in a road which cannot be seen by drivers approaching from one side due to a curve in the road. However, the excavation in the present case differs from Tennyson’s analogy in that this was not a situation where the condition was unexpected.

The record reflects that Tennyson knew that the gravel pile was a stockpile and that gravel could be removed at any time. The fact that Tennyson knew the gravel pile was subject to change supports our determination that the condition was not latent and demonstrates the logic of the approach we have adopted.

5 The New Jersey statute provides in part:

"a. An owner, lessee or occupant of premises, whether or not posted as provided in section 23:7-7 of the Revised Statutes, owes no duty to keep the premises safe for entry or use by others for sport and recreational activities, or to give warning of any hazardous condition of the land or in connection with the use of any structure or by reason of any activity on such premises to persons entering for such purposes[.]” Labree, at 289 (quoting N.J. Stat. Ann. § 2A:42A-3 (West 1987) (amended 1992)).

6 The last contractor to excavate, Blue Dot Excavating, removed gravel in mid-October 1990, nearly 10 months prior to Tennyson’s accident.

7 For example, 41 Am. Jur. 2d Independent Contractors § 50 (1968) provides in part: "|T|t is now the generally accepted view that... a contractor is held to the standard of reasonable care for the protection of third parties who may foresee-ably be endangered by his negligence, even after acceptance of the work by the contractee, and the early theory that lack of privity of contract between the contractor and the injured third person was a valid defense no longer prevails.” (Footnotes omitted.)

8 Implicitly within this holding is also a rejection of Tennyson’s and Plum Creek’s argument that the inherent or imminent danger exception should apply. This exception was recognized by the four dissenters in andrews v. Del Guzzi, supra, who stated: "Items which qualify as exceptions to the general rule have been limited by the courts to those having known dangerous propensities, such as dynamite, gunpowder, dynamite caps, and firearms.” andrews, at 392 (Ott, J., dissenting). A gravel pile, unlike dynamite, gun powder, or other flammable or explosive materials, does not have a known dangerous propensity.